Colorado v. Nunez
Opinion of the Court
The writ is dismissed as improvidently granted, it appearing that the judgment of the court below rested on independent and adequate state grounds.
Concurring Opinion
concurring.
The Court today concludes that the Colorado Supreme Court relied on independent and adequate state grounds when it affirmed the trial court’s decision to suppress a quantity of heroin seized during a search of respondent Nunez’ house following the State’s refusal to disclose the identity of a confidential informant on which the Denver Police Department had relied to establish probable cause for the search. I write not to challenge the Court’s determination that the judgment under review rests on independent and adequate state grounds, but to make clear that neither the Federal Constitution nor any decision of this Court requires the result reached by the Colorado Supreme Court.
The State took an interlocutory appeal to the Colorado Supreme Court, which affirmed the trial court’s judgment solely on the ground that disclosure of the informant’s identity was essential to Nunez’ motion to suppress. 658 P. 2d 879 (1983). The State argued strenuously that “an accused must question the conduct of the police in constructing the warrant before he may request the court to order the prosecution to reveal the informant’s identity.” App. 107. In its view, “a court, after a proper allegation by the accused that brings the affiant’s credibility into issue, may order disclosure of the informant’s identity,” but “[t]here must be an attack upon the affiant’s credibility before the informant can be disclosed.” Id., at 103 (emphasis in original).
“Dailey recognized that errors in an affidavit for a search warrant can result ‘from the informant’s perjury or reckless disregard for the truth, or from the negligence or good faith mistake of either the officer or the informant.’ 639 P. 2d at 1075. When, following a veracity hearing, the probability of one of those kinds of error has been found, the election of remedies or sanctions is left to the discretion of the district court. The necessary foundation for the court’s exercise of discretion in ordering disclosure is a showing of a reasonable basis in fact to question the accuracy of the informant’s recitals.” 658 P. 2d, at 881 (emphasis added).
This holding, I believe, confers on trial courts in Colorado discretion to do far more than the Federal Constitution minimally requires.
“[I]n the exercise of its power to formulate evidentiary rules for federal criminal cases,” this Court “has consistently declined to hold that an informer’s identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search.” McCray v. Illinois, 386 U. S. 300, 312 (1967). See Roviaro v. United States, 353 U. S. 53 (1957). Nothing in the Federal Constitution, we held in McCray, requires a State “to abolish the informer’s privilege from its law of evidence, and to . . . disclos[e] . . . the informer’s identity in every such preliminary hearing where it appears that the officers made the arrest or search in reliance upon facts supplied by an informer they had reason to trust.” 386 U. S., at 312.
We have, to be sure, recently concluded that the Fourth and Fourteenth Amendments entitle a defendant to a verac
In People v. Dailey, supra, the state-court decision on which the challenged judgment rests, the Colorado Supreme Court clearly recognized the limits of the rights conferred by the Fourth and Fourteenth Amendments. Id., at 1074. It concluded, however, that Franks established only the federal constitutional standard and held that the State Constitution entitles defendants to challenge the informant’s veracity and in appropriate circumstances to have his identity disclosed for that purpose. Although this case would be resolved differently under federal law, see McCray v. Illinois, supra, at 306-309,1 agree that the challenged judgment rests solely on state-law grounds and that this Court lacks jurisdiction to review it.
concurring.
In view of the growing public interest in the magnitude of our workload,
Today Justice White “agree[s] that the challenged judgment rests solely on state-law grounds and that this Court lacks jurisdiction to review it.” Ante, at 327. He nevertheless provides us with an advisory opinion, in which The ChieF Justice and Justice O’Connor join, concerning the merits of the case. We of course have jurisdiction to determine our jurisdiction over this case, but once we agree that we lack jurisdiction, this case no more provides a vehicle for deciding the question upon which three Justices now volunteer an opinion than if the petition for a writ of certiorari had never been filed. I, of course, fully respect their right to their opinions concerning that question, just as I respect other scholars who disagree with the wisdom of the choice made in Hayburn’s Case, 2 Dall. 409 (1792). I merely note that today’s advisory opinion is consistent with the Court’s
See, e. g., Coleman, The Supreme Court of the United States: Managing its Caseload to Achieve its Constitutional Purposes, 52 Fordham L. Rev. 1 (1983); Note, Of High Designs: A Compendium of Proposals to Reduce the Workload of the Supreme Court, 97 Harv. L. Rev. 307 (1983).
See generally Stevens, Some Thoughts on Judicial Restraint, 66 Judicature 177, 180 (1982).
White, Challenges for the U. S. Supreme Court and the Bar: Contemporary Reflections, 51 Antitrust L. J. 275, 280 (1982).
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