                               NO. 87-428

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1988



STATE OF MONTANA,
                Plaintiff and Respondent,
       -vs-
JAMES D. COATES,
                Defendant and Appellant.




APPEAL FROM:    District Court of the Fourth Judicial District,
                In and for the County of Missoula,
                The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
       For Appellant:
                Bruce L. Hussey, Missoula, Montana
       For Respondent:
                Hon. Mike Greely, Attorney General, Helena, Montana
                Clay R. Smith, Asst. Atty. General, Helena
                Robert L. Deschamps, 111, County Attorney, Missoula,
                Montana



                                   Submitted on Briefs:   July 14, 1988
                                     Decided:   August 22, 1988
Mr. Justice L .   C. Gulbrandson delivered the Opinion of the
Court.

      Defendant James D. Coates appeals his conviction of
four counts of felony theft in Missoula County District
Court. We affirm.
      Three break-ins occurred in Missoula, Montana in early
September of 1986 which resulted in the theft of various
power tools and firearms. On September 10, 1986, the Great
Falls Police Department received a telephone call from an
individual who stated that James D. Coates (Coates) was
attempting to sell him guns and power tools at the Cowboy
Bar.    The caller identified Coates' vehicle as a green
Ranchero or El Camino with Missoula County license plates and
several large cardboard boxes in the rear.
      Based on the information received from the informant,
Great Falls police officers proceeded to the Cowboy Bar where
they found a vehicle matching the description given to them.
A registration check revealed that the vehicle was registered
to Coates.   The officers observed two individuals exit the
bar at different times and inspect the boxes in Coates'
vehicle. One of the individuals, Patricia Werring (Werring),
later drove away with a box in her vehicle that was similar
to the boxes in Coates' vehicle.
      The officers followed and stopped Werring's vehicle.
Werring indicated that the box in her vehicle belonged to
Coates and the officers confiscated the box with Werring's
permission. The box contained a miter box saw. Werring was
released and the officers returned to the Cowboy Bar to
observe Coates' vehicle.    Coates, Richard Horton (Horton),
Rebecca Wagner (Wagner), and Bruce Werring soon exited the
bar. Coates, Horton, and Wagner, all who had open containers
of alcoholic beverages in their hands when they left the bar,
departed in Coates' vehicle.
      The officers stopped Coates' vehicle and inquired about
the contents of the boxes. Coates claimed ownership of the
contents of the boxes in his vehicle and the contents of the
box confiscated from Werring. Coates and his passengers were
arrested for violation of the open container law and Coates'
vehicle was impounded. The next day, the Great Falls police
department obtained a search warrant and searched Coates'
vehicle. The contents of the boxes were identified as power
tools and firearms stolen in the three Missoula break-ins.
      Coates was charged by information on November 7, 1986,
with four counts of felony theft pursuant to S- 45-6-301, MCA.
Prior to trial, Coates moved for disclosure of the identity
of the State's confidential informant. The District Court
denied Coates' motion on April 21, 1987.         A jury trial
commenced on April 28, 1987, and a guilty verdict was
returned on May 1, 1987. Coates was sentenced on June 15,
1987 to ten years imprisonment at the Montana State Prison on
each count, with three years suspended on each of the four
concurrent sentences.      Coates appeals and raises the
following issue: Did the District Court abuse its discretion
in denying the motion for disclosure of the identity of the
confidential informant whose report led to the surveillance
of Coates' vehicle?
      Coates seeks to compel disclosure of the informant's
identity through Rule 502(c)(2), M.R.Evid.  Rule 502 provides
in pertinent part as follows:
           (a) Rule of Privilege.        The United
           States or a state or subdivision thereof
           has a privilege to refuse to disclose the
           identity of a person who has furnished
           information relating to or assisting in
           an investigation of a possible violation
           of a law.


           (c) Exceptions and limitations.
           (2) Testimony on relevant issue. If it
           appears in the case that an informer may
           be able to give testimony relevant to any
           issue in a criminal case or to a fair
           determination of a material issue on the
           merits in a civil case to which a public
           entity is a party, and the public entity
           invokes the privilege, the court shall
           give the public entity an opportunity to
           show   facts  relevant   to   determining
           whether the informer can, in fact, supply
           that testimony.
The Montana Supreme Court Commission on Evidence comments
indicate that Rule 502 adopted the following balancing test
as expressed in Roviaro v. United States (1957), 3 5 3 U.S. 5 3 ,

           We believe that no fixed rule with
           respect to disclosure is justifiable.
           The problem is one that calls for
           balancing   the    public    interest   in
           protecting   the   flow   of   information
           against the individual's right to prepare
           his defense.    Whether a proper balance
           renders nondisclosure     erroneous must
           depend on the particular circumstances of
           each case, taking into consideration the
           crime charged, the possible defenses, the
           possible significance of the informer's
           testimony, and other relevant factors.
Roviaro, 353 U.S. at 62, 77 S.Ct. at 628-29, 1 L.Ed.2d at
646.   Section 46-15-324(3), MCA, is also relevant to the
issue on appeal and provides as follows:
           (3) Disclosure of    .. . the identity of
           an informant who will not be called to
           testify is not required if:
           (a) disclosure     would    result   in
           substantial risk to the informant or to
           his operational effectiveness; and
           (b) the failure to disclose will not
           infringe the constitutional rights of the
           accused.
      Coates contends that the confidential informant may be
able to give testimony which is relevant to whether there was
probable cause for his arrest.     The State points out that
Coates was arrested for an open container violation and that
the informant's information was not used as a basis for that
arrest.    The State also contends that the informant's
conversation only supplied the impetus for placing Coates'
vehicle under surveillance. For that reason, the State did
not rely on the informant's information at trial and avoided
any reference to the informant or to his or her conversation
with law enforcement officers.    Finally, the State asserts
that the informant's testimony would have been cumul-ative to
that of other witnesses in the trial.
      The District Court noted that Coates' subsequent arrest
for felony theft was predicated on the arresting officers'
independent investigation. That investigation revealed that
Coates had attempted to sell certain items to the informant
and others, that Coates claimed ownership of the items, and
that the items were stolen. Consequently, it is clear under
the undisputed facts of this case that the informant's
information was not used as a basis for probable cause to
arrest Coates for felony theft.
      Coates cites to State v. Chapman (Mont. 1984), 679 P.2d
1210, 41 St.Rep. 550, and Gilmore v. United States (5th Cir.
1958), 256 F.2d 565, to support his argument that the
informant's identity should have been revealed in this case.
However these two cases are distinguishable from the instant
case in that the informants in Chapman and Gilmore were
active participants in the alleged crime and had done more
than just inform or supply information.
      Coates contends that the informant's testimony would be
relevant to his defense but fails to support that contention
with anything more than conjecture or supposition. State v.
McLeod   (Mont. 1987), 740 P.2d   672, 675, 44 St.Rep. 1251,
1255, (citing United States v. Kerris (11th ~ i r .1984), 748
F.2d 610, 614, which states that mere conjecture or
supposition is insufficient to warrant disclosure).   There is
no evidence that disclosure in this case outweighs "the
public interest in protecting the flow of information" or
that the informant's testimony would be relevant to any issue
in this case. Roviaro, 353 U.S. at 62, 77 S.Ct. at 628-29, 1
L.Ed.2d at 646; State v. Sykes (Mont. 1983), 663 P.2d 691,
694, 40 St.Rep. 690, 692; Rule 502, M.R.Evid.      Coates has
failed to substantiate his claim that his constitutional
rights have been infringed by nondisclosure or that the
informant would be exposed to no risk upon disclosure.
Section 46-15-324(3) (a), (b), MCA; McLeod, 740 P.2d at 675.
Accordingly, we hold that the District Court did not err by
denying the motion for di.sclosure of informant's identi-ty.
      Affirmed.                                 ./



                                                        avY\     f
                                  Justice

We concur:
