Section 509.    Identity of Informer, Surveillance Location, and Protected Witness Privileges

(a) Identity of Informer. The identity of persons supplying the government with information concerning the commission of a crime is priv­ileged in both civil and criminal cases, except there is no privilege under this subsection when

(1) the identity of the informer has been disclosed by the government or by the informer, or is otherwise known, or

(2) the identity of the informer is relevant and helpful to the defense of an accused, or is essential to a fair determination of a criminal or civil case in which the government is a party. Before the identity of the informer is disclosed, the court must balance the public interest in protecting the flow of information against the individual’s right to prepare a defense.

(b) Surveillance Location. The exact location, such as the location of a police observation post, used for surveillance is privileged, except there is no privilege under this subsection when a defendant shows that revealing the exact surveillance location would provide evidence needed to fairly present the defendant’s case to the jury.

(c) Protected Witness. The identity and location of a protected witness and any other matter concerning a protected witness or the Commonwealth’s witness protection program is privileged in both civil and criminal cases, except there is no privilege as to the identity and location of the protected witness under this subsection when

(1) the prosecuting officer agrees to a disclosure after balancing the danger posed to the protected witness, the detriment it may cause to the program, and the benefit it may afford to the public or the per­son seeking discovery, or

(2) disclosure is at the request of a local, State, or Federal law enforcement officer or is in compliance with a court order in circumstances in which the protected witness is under criminal investigation for, arrested for, or charged with a felony.

(d) Who May Claim. These privileges may be claimed by the government.

NOTE

Subsection (a). This subsection is derived from Roviaro v. United States, 353 U.S. 53, 59–62 (1957); Attorney Gen. v. Tufts, 239 Mass. 458, 490–491, 132 N.E. 322, 326–327 (1921); and Worthington v. Scribner, 109 Mass. 487, 488–‌489 (1872). Although the privilege remains intact, it may expire. The public records statute, G. L. c. 66, § 10, provides an independent right of access to records and documents that were covered by the privilege if the reason for the privilege no longer exists. See, e.g., District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511–512, 646 N.E.2d 127, 130 (1995) (discussing Bougas v. Chief of Police of Lexington, 371 Mass. 59, 66, 354 N.E.2d 872, 878 [1976], and WBZ-TV4 v. District Attorney for the Suffolk Dist., 408 Mass. 595, 602–604, 562 N.E.2d 817, 821–822 [1990]).

When a defendant challenges the sufficiency of an affidavit in support of a search warrant, the court’s review “begins and ends with the ‘four corners of the affidavit.’” Commonwealth v. O’Day, 440 Mass. 296, 297, 798 N.E.2d 275, 277 (2003), quoting Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428, 657 N.E.2d 237, 238 (1995). The defendant has the burden of establishing by a preponderance of the evidence that the affidavit contains false statements. See Commonwealth v. Nine Hundred & Ninety-two Dollars, 383 Mass. 764, 767, 769, 422 N.E.2d 767, 770, 771 (1981). Intentionally or recklessly omitted material may satisfy the defendant’s burden. See Commonwealth v. Long, 454 Mass. 542, 552, 911 N.E.2d 174, 182 (2009). A negligent misrepresentation by the affiant is not a basis for relief. See Commonwealth v. Amral, 407 Mass. 511, 520, 554 N.E.2d 1189, 1195 (1990); Commonwealth v. Nine Hundred & Ninety-‌two Dollars, 383 Mass. at 771–772, 422 N.E.2d at 772–773. If the affidavit contains false statements, the court must simply assess whether it establishes probable cause without reliance on the false statements. See Commonwealth v. Amral, 407 Mass. at 519, 554 N.E.2d at 1195. Cf. Com­monwealth v. Nine Hundred & Ninety-two Dollars, 383 Mass. at 768, 422 N.E.2d at 770–771 (leaving open whether suppression of evidence should be ordered under Article 14 of the Massachusetts Declaration of Rights when there has been a deliberately false, though nonmaterial, misstatement by the affiant).

Amral Hearing. In keeping with the “four corners rule,” the court should not take any action simply based on an allegation that the affidavit contains false information. Only if the defendant makes an initial showing that “cast[s] a reasonable doubt on the veracity of material representations made by the affiant concerning a confidential informant” is the court required to act (citations omitted). See Commonwealth v. Youngworth, 55 Mass. App. Ct. 30, 38, 769 N.E.2d 299, 307 (2002), cert. denied, 538 U.S. 1064 (2003). The first step is to conduct an in camera hearing. See Commonwealth v. Ramirez, 416 Mass. 41, 53–54, 617 N.E.2d 983, 989–990 (1993). The informant may be ordered to appear and submit to questions by the court at this “Amral hearing”; however, the identity of the informant is not revealed. The court has discretion to permit the prosecutor to attend this hearing. Neither the defendant nor defense counsel is permitted to attend. See Commonwealth v. Amral, 407 Mass. at 525, 554 N.E.2d at 1198. If the court is satisfied that the informant exists and that the defendant’s allegations of false statements are not substantiated, there is no further inquiry. On the other hand, if the defendant makes “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit,” the court must take the next step (citation omitted). See Commonwealth v. Youngworth, 55 Mass. App. Ct. at 37–38, 769 N.E.2d at 306–‌307. In this situation, the defendant is entitled to an evidentiary hearing and to the disclosure of the identity of the informant. The burden of proof at this hearing rests with the defendant to establish that the affiant presented the magistrate with false information purposely or with reckless disregard for its truth. If it is shown that an affidavit in support of a warrant contains false information that was material to the determination of probable cause, suppression of the evidence is required. See Franks v. Delaware, 438 U.S. 154, 155–156 (1978); Commonwealth v. Amral, 407 Mass. at 519–520, 554 N.E.2d at 1195.

Subsection (a)(1). This subsection is derived from Commonwealth v. Congdon, 265 Mass. 166, 175, 165 N.E. 467, 470 (1928), and Pihl v. Morris, 319 Mass. 577, 579, 66 N.E.2d 804, 806 (1946).

Subsection (a)(2). The first sentence of this subsection is quoted nearly ver­batim from Commonwealth v. Johnson, 365 Mass. 534, 544–545, 313 N.E.2d 571, 578 (1974), quoting Roviaro v. United States, 353 U.S. 53, 60–61 (1957). The last sentence of this subsection is derived from Commonwealth v. Nelson, 26 Mass. App. Ct. 794, 797, 536 N.E.2d 1094, 1096 (1989). See also Commonwealth v. Dias, 451 Mass. 463, 469, 886 N.E.2d 713, 718 (2008) (“Part of the balance involves weighing the potential danger to the informant.”). “Cases which have considered the subject have maintained the distinction between a demand for disclosure at a pretrial hearing, where the issue is probable cause for arrest or a search, and a demand for disclosure at trial, where the issue is the defendant’s ultimate guilt or innocence.” Commonwealth v. Lugo, 406 Mass. 565, 571, 548 N.E.2d 1263, 1266 (1990). “[T]he government is not required to disclose the identity of an informant who is a mere tipster and not an active participant in the offense charged.” Commonwealth v. Brzezinski, 405 Mass. 401, 408, 540 N.E.2d 1325, 1330 (1989), quoting United States v. Alonzo, 571 F.2d 1384, 1387 (5th Cir.), cert. denied, 439 U.S. 847 (1978). Accord McCray v. Illinois, 386 U.S. 300, 308–309 (1967). See also Commonwealth v. Martin, 362 Mass. 243, 245, 285 N.E.2d 124, 126 (1972) (trial judge “reasonably refused to permit inquiry about an informant who seems merely to have told the police where the defendants were living together”); Commonwealth v. McKay, 23 Mass. App. Ct. 966, 967, 503 N.E.2d 48, 49 (1987) (trial judge was not re­quired to order disclosure of the identity of two inmates who informed on the defendant, although their statements were disclosed and they were not called as witnesses at trial by the Commonwealth). When the informant “is an active participant in the alleged crime or the only nongovernment witness, disclosure [of the identity of the informant] usually has been ordered.” Commonwealth v. Lugo, 406 Mass. at 572, 548 N.E.2d at 1266.

Where a defendant seeks disclosure of otherwise privileged information to support an entrapment defense, the question is whether the defense has been “appropriately raised . . . by the introduction of some evidence of inducement by a government agent or one acting at his direction.” Commonwealth v. Madigan, 449 Mass. 702, 707, 871 N.E.2d 478, 483 (2007), quoting Commonwealth v. Miller, 361 Mass. 644, 651–652, 282 N.E.2d 394, 400 (1972). “The types of conduct that possess the indicia of inducement include ‘aggressive persuasion, coercive encouragement, lengthy negotiations, pleading or arguing with the defendant, repeated or persistent solicitation, persuasion, im­portuning, and playing on sympathy or other emotion.’” Id. at 708, 871 N.E.2d at 483, quoting Commonwealth v. Tracy, 416 Mass. 528, 536, 624 N.E.2d 84, 89 (1993). See Commonwealth v. Mello, 453 Mass. 760, 765, 905 N.E.2d 562, 566 (2009) (reversing trial judge’s order that Commonwealth must disclose the identity of an unnamed informant because the defendant’s proffer showed no more than a solicitation; duty to disclose identity of an undercover police officer or unnamed informant does not carry over to a second unnamed informant unless the second informant participated in the first informant’s inducement).

Unless the relevancy and materiality of the information sought is readily apparent, the party seeking access to the information has the burden to provide the trial judge with the basis for ordering the disclosure. Commonwealth v. Swenson, 368 Mass. 268, 276, 331 N.E.2d 893, 898–899 (1975). When it is not clear from the record whether disclosure of the informant’s identity is required, the court has discretion to hold an in camera hearing to assist in making that determination. Commonwealth v. Dias, 451 Mass. at 472 n.15, 866 N.E.2d at 721 n.15 (“The nature of the in camera hearing is left to the judge.”). In exceptional circumstances, a motion for the disclosure of the identity of an informant may be based on an ex parte affidavit in order to safeguard the defendant’s privilege against self-incrimination. However, in such a case, before any order of disclosure is made, the Commonwealth must be given a summary or redacted version of the defendant’s affidavit and an opportunity to oppose the defendant’s motion. Commonwealth v. Shaughessy, 455 Mass. 346, 357–‌358, 916 N.E.2d 980, 989 (2009).

Subsection (b). This subsection is derived from Commonwealth v. Lugo, 406 Mass. 565, 570–574, 548 N.E.2d 1263, 1265–1267 (1990), and Commonwealth v. Rios, 412 Mass. 208, 210–213, 588 N.E.2d 6, 7–9 (1992). It would be a violation of the defendant’s right to confrontation to preserve the confidentiality of a surveillance site by permitting the trier of fact to hear testimony from a witness outside of a defendant’s presence. Commonwealth v. Rios, 412 Mass. at 212–213, 588 N.E.2d at 8–9.

Subsection (c). This subsection is derived from St. 2006, c. 48, § 1, inserting G. L. c. 263A, entitled “Witness Protection in Criminal Matters.” As for the right of the defense to have access to a Commonwealth witness, see Commonwealth v. Balliro, 349 Mass. 505, 515–518, 209 N.E.2d 308, 314–316 (1965).

Subsection (d). This subsection is derived from Commonwealth v. Johnson, 365 Mass. 534, 544, 313 N.E.2d 571, 577 (1974).