UNITED STATES COURT OF APPEALS for the Fifth Circuit

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No. 92-5582 Summary Calendar _____________________________________

United States of America,

Plaintiff-Appellee.

VERSUS

Enrique L. Orozco,

Defendant-Appellant.

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Appeal from the United States District Court for the Western District of Texas ______________________________________________________ (January 21, 1993)

Before JONES, DUHÉ, and BARKSDALE, Circuit Judges

DUHÉ, Circuit Judge:

Defendant-Appellant Enrique Orozco (Orozco) appeals from drug

and firearm convictions. He contends that the district court erred

in denying his motions to suppress and to compel the Government to

disclose the identity of an informant. He also contends that the

court erred in denying his counsel access to the contents of an in

camera hearing on disclosure of the informant. We find appellant's

contentions without merit, and accordingly affirm his conviction.

Background

On February 25, 1991, two San Antonio police officers

confronted Orozco in a shopping center parking lot and arrested him

without a warrant. Just prior to the arrest, one of the officers,

Detective Casias, observed Orozco engage in three apparent sales of heroin packaged in balloons. Casias had been alerted by another

officer that a Latin male on a bicycle, fitting Orozco's

description, was apparently selling narcotics in the vicinity.

Casias spotted Orozco, called to confirm his description, and

followed Orozco into a parking lot. Orozco approached a black male

who, after a brief conversation, handed money to Orozco. In

return, Orozco gave him a small object which he removed from his

mouth.1 Orozco then rode to another parking lot where he

approached a red pick up truck. The driver passed something to

Orozco. Casias could not see what the truck driver gave to Orozco,

but he did see Orozco take a small object from his mouth and hand

it to the driver. Another subject approached the truck, and a

similar transaction took place between Orozco and that subject.

Detective Casias called for assistance, and Orozco was

apprehended shortly thereafter. A small heroin-filled balloon fell

from Orozco's mouth as he was taken into custody, and another was

found at his feet. Additionally, the officers removed a loaded .22

caliber revolver from Orozco's waistband and $519 from his pants

pocket. Orozco filed a motion to suppress the evidence obtained

from this warrantless search contending that the officers did not

have probable cause to search him. During a pretrial hearing, the

court denied Orozco's motion.

1 Casias, who had witnessed or participated in thirty to forty heroin transactions, knew that street dealers often stored heroin-filled balloons in their mouths to allow for easy swallowing if the police were to arrive.

2 In March 1991, while out on bond from his February 25th

arrest, Orozco made a street sale of heroin to undercover detective

Saucedo. Saucedo did not arrest Orozco after the transaction, but

identified him from a police photograph six days later. At trial,

Saucedo testified without objection that he had identified Orozco

from a photographic line-up. During cross-examination, he

disclosed for the first time that he had been accompanied by an

informant during the drug buy. After the prosecution rested, the

defense moved for disclosure of the informant's identity on the

ground that he might be able to testify that Orozco was not the

person who sold the drugs. After an in camera hearing which

excluded Orozco, defense counsel and the prosecutor, the court

denied the motion. A jury found Orozco guilty on all counts.

Orozco appeals.

Discussion

I. Probable Cause

Orozco contends that the district court erred in finding that

Detective Casias had probable cause to arrest Orozco. During the

warrantless arrest, the officers seized a gun, heroin, and money.

Orozco argues that the officers may have had reasonable suspicion

of criminal activity when they approached him, but exceeded the

permissible scope of an investigative stop by seizing him.

Therefore, he argues, the evidence seized should have been

excluded. We disagree.

The existence of probable cause is a question of law and

greatly dependent upon the factual findings. United States v.

3 Hernandez,

(5th Cir. 1987), cert. denied,

(1988). Probable cause to arrest "exists when the facts

and circumstances within the knowledge of the arresting officers

are sufficient to warrant a person of reasonable caution to believe

that an offense has been or is being committed." United States v.

Rocha,

(5th Cir. 1990), cert. denied, ---U.S.---

,

(1991) (citations omitted). The ultimate issue is

one of law, but the underlying factual findings from which a

district court deduces probable cause are reviewed only for clear

error. Hernandez,

.

Detective Casias is a veteran police officer knowledgeable

about the sale of heroin on the street. Only minutes after he was

informed that a Latin cyclist was in the vicinity selling drugs,

Orozco, matching the description exactly, pedaled past the officer.

Within a period of fifteen to twenty minutes, Detective Casias

witnessed Orozco make three apparent sales of heroin. The

distinctive nature of the transaction, concealing the heroin in a

balloon in the mouth, makes it easily recognizable to a veteran

police officer. Finally, the location of the arrest was well known

as an area where drug activity was common. Given all of these

factors, we conclude, as did the district court, that the facts and

circumstances were sufficient to warrant a person of reasonable

caution to believe that an offense was being committed.2

2 Much is made over whether Detective Casias saw an orange balloon fall out of Orozco's mouth before or after he made physical contact with Orozco, and whether the court's finding that the balloon fell out before physical contact is erroneous. Because we have determined that probable cause existed prior to the time

4 II. Disclosure of Informant's Identity

Orozco argues that the district court erred in denying his

motion to compel the Government to disclose the identity of the

confidential informant who was an eyewitness to the sale of heroin

to Detective Saucedo. He contends that the failure to order

disclosure deprived him of the opportunity to properly prepare and

present his defense of misidentification. We reject this

contention.

The Supreme Court, in Roviaro v. United States,3 examined the

disclosure issue. It held that the court must balance the benefits

of disclosure and production of the informant to the Defendant

against the resulting harm to the State. Id. at 62. In numerous

cases applying Roviaro, this Court has established a three part

test to determine whether disclosure is mandated. United States v.

De Los Santos,

(5th Cir. 1987), cert denied,

(1987) (citations omitted). First, we evaluate the

level of the informant's participation in the alleged criminal

activity. Next, we consider the helpfulness of disclosure to any

asserted defense. Finally, we consider the government's interest

in nondisclosure. Id. We review the district court's action for

abuse of discretion. United States v. Vizcarra-Porras,

(5th Cir. 1989), cert. denied,

(1990).

Detective Casias stopped to arrest Orozco, the finding challenged by Orozco is irrelevant. 3

(1957).

5 The court may conduct an in camera hearing when necessary to

balance the conflicting interests involved. United States v.

Freund,

(5th Cir.), cert. denied,

(1976). This limited disclosure of identity to the trial judge

protects the government's interest in maintaining anonymity while

also insuring the defendant's interest in having access to any

witness who possesses facts which would aid him in his defense.

Id.

After properly conducting such an in camera hearing, the

district court found that

based upon what the witness had testified, that the informant in this case was not a participant in the drug transaction, that he played a very minor role, that he might not have observed the actual transaction take place. There's no information to indicate that he would not identify the accused on trial and that there is a real danger to this informant, and that even if his identity . . . were to be made known at this late date, the officer does not know his whereabouts and there could be a problem in trying to track this person down. Weighing all those factors along with the value and need that the defense might have, the court thinks that the identity of the informant is not crucial to the defense, that he was not a participant in a drug transaction. He would in all likelihood not give any testimony that would be in any way favorable to the defense, and for his own safety the court will deny the defense request that his identity be made known to the defense.

In reviewing the testimony of the in camera hearing and the other

relevant evidence, we conclude that the district court did not

abuse its discretion in refusing to compel disclosure of the

informant's identity.

If the informant's participation is minimal, the Roviaro

balance favors nondisclosure. De Los Santos,

.

"Even though an informant is present during a critical transaction,

6 the fact that he does not actively participate favors

nondisclosure." United States v. Gonzales,

(5th

Cir. 1979)(citations omitted). In this instance, the informant

played a very minor role in the transaction, did not participate in

the transaction, and may not have even observed the transaction.

Based on this evidence, this factor weighs in favor of

nondisclosure. See United States v. Diaz,

(5th

Cir. 1981), cert. denied

(1982).

The second factor is the relationship between the defendant's

asserted defense and the probable testimony of the informant.

Gonzales,

(citations omitted). The defendant must

make a sufficient showing that the testimony would significantly

aid the defendant in establishing an asserted defense. Diaz,

. "[M]ere conjecture or supposition about the possible

relevancy of the informant's testimony is insufficient to warrant

disclosure." Gonzales,

. In the instant case, the

defendant has failed to meet this test. He speculates that the

informer's testimony might contradict that of the officer, but

provides no evidence to support this claim. Appellant's counsel

said nothing about mistaken identity in his opening statement.

Orozco did not testify or offer any other evidence to corroborate

his misidentification defense. Nor did defense counsel question

the detective about his identification of Orozco from a police

photograph just six days after the transaction took place. In

light of these facts, it is difficult "to avoid the conclusion,

that counsel preferred, as a tactical choice, to denounce [the

7 informant's] absence [rather] than to secure [the informant's]

presence." United States v. Webster,

(5th Cir.

1979), rev'd on other grounds,

, 351 n.11 (5th Cir.

1981).

Finally, we examine the government's interest in

nondisclosure. The government's interest relates to both the

safety of the informant and the informant's future usefulness to

the authorities as a continuing confidential source. United States

v. Ayala,

(5th Cir. 1981). Although the future

usefulness of this informant was not discussed, the findings of the

court clearly indicate that revealing the identity of the informant

would place him in real danger.

In sum, we conclude that the interests weigh in favor of

nondisclosure. Therefore, we hold that the district court did not

abuse its discretion in withholding the identity of the informant.

III. Right to Effective Assistance of Appellate Counsel

Pending this appeal, Orozco moved the district court to unseal

the videotape of the in camera interview with Detective Saucedo.

Appellant alternatively requested that counsel be permitted to view

the tape under a protective order without him present. The

district court denied both requests. Orozco argues that this

deprived him of his rights to effective assistance of counsel and

due process of law. We find this argument meritless.

The district court may employ procedures necessary to protect

the competing interests of the parties. In determining the proper

balance of these interests, the trial judge, in the exercise of his

8 discretion, determines the appropriate procedures. United States

v. De Los Santos,

(5th Cir. 1987). The use of the

in camera hearing has been cited approvingly many times by this

Court. See, e.g., De Los Santos,

;

United States v. Fischer,

(5th. Cir. 1976);

United States v. Doe,

(5th Cir.), cert. denied,

(1976).

In this case, the court determined that disclosure of the

information gained during the in camera hearing would pose a real

danger to the informant if revealed. To unseal the record of the

interview now would "defeat the very purpose of the in camera

procedure." United States v. Singh,

, 1172 n.2 (5th

Cir.), cert. denied, ----U.S. ---,

(1991).

Additionally, in De Los Santos, this Court held that "the

defendant's sixth amendment right to assistance of counsel . . . is

not violated by an in camera proceeding used to determine whether

the disclosure of an informant's identity would benefit the defense

and therefore should be revealed." De Los Santos,

(citations omitted). Likewise, appellate counsel is not rendered

ineffective because she has not reviewed that which trial counsel

did not participate in. As in all other cases involving a sealed

record, this Court will review the assignment of error after

considering the sealed portion of the record. See, e.g., Singh,

. Therefore, we refuse to disturb the sealed

portion of this record, and affirm the rulings of the district

court.

For the foregoing reasons, the judgment of the district court

is

9 AFFIRMED.

10