       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                    IN AND FOR KENT COUNTY

STATE OF DELAWARE                       )
                                        )
v.                                      ) I.D. No. 140200979
                                        )
THOMAS N. VAN VLIET,                    )
Defendant.                              )

                              ORDER
     Upon Defendant’s Motion to Disclose Identity of a Confidential
                        Informant - Denied

Defendant Thomas N. Van Vliet has moved for disclosure of the identity of a

confidential informant. The State opposes the motion. Upon consideration of the

written submissions of the parties and after an in camera hearing, the Court finds

as follows:

       1. Under Rule 509(a) of the Delaware Rules of Evidence, the State has the

privilege to refuse to disclose an informant’s identity.

       2. The Delaware Supreme Court has addressed the showing which a

defendant must make in order to overcome the State’s privilege. The Court has

stated, “[a] defendant attempting to invoke the exception must show, beyond mere

speculation, that the confidential informant may be able to give testimony that




                                          1
would materially aid the defense."       1
                                             In Butcher v. State, the Delaware Supreme

Court addressed the trial court’s obligation to engage in a balancing of the

interests; specifically, “the public interest in protecting the flow of information

against the individual’s right to prepare his defense.”        2




       3. In State v. Flowers, the Superior Court described the following four

situations in which the issue of disclosing the informer’s identity arises: (1) the

informer is used merely to establish probable cause for a search; (2) the informer

witnessed the criminal act; (3) the informer participated in, but was not a party to

the illegal transaction; and (4) the informer was an actual party to the illegal

transaction. The Court noted that while the privilege is generally protected in the
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first scenario and disclosure is generally required in the fourth scenario, there is no

general rule for the second and third scenarios.4 Under the second and third

scenarios, “disclosure of the informer’s identity is required only if the trial judge

determines that the informer’s testimony is material to the defense.”         5




       1
          McNair v. State, 2008 WL 199831, at *1(Del. Jan. 23, 2008)(internal quotation marks
and citations omitted).
       2
         Butcher v. State, 906 A.2d 798, 802 (Del. 2006)(quoting Roviaro v. United States, 353
U.S. 53, 77 (1957)).
       3
           State v. Flowers, 316 A.2d 564, 567 (Del. Super. 1973).
       4
           Id.
       5
           Butcher, 906 A.2d at 803.

                                                 2
      4.       On July 28, 2015, the Court conducted an in camera hearing

regarding this issue. Prior to the hearing, the Court reviewed questions proferred

by the Defendant and the State and posed in the hearing some of those questions in

addition to the Court’s own questions.

      5.       The Court finds that the site of the alleged crime in this case was

1658 Woodyard Road, Harrington, Delaware. The indictment alleges the criminal

activity occurred on June 11, 2014. The confidential informant in this case took a

video of allegedly illegal activity at the site well in advance of the execution of a

search warrant at the location. This video, and certain statements allegedly made

by occupants at the crime site were relayed to the police, and were used for the

purposes of formulating probable cause for a search. Furthermore, the

confidential informant testified that he witnessed criminal activity at that location

and recorded such activity by video.

      6. Th confidential informant’s involvement in the transactions at issue falls

under the first and second Flowers scenarios.6 Namely, the informer was used to

establish probable cause and he also witnessed criminal activity at the site at issue.

After carefully questioning the confidential informant, however, the Court finds

that the informant’s testimony would not be material to the defense. Accordingly,


      6
          See Flowers, 3156 A. 2d at 567.

                                            3
      disclosure of the confidential informant’s identity is not warranted pursuant to

      Flowers v. State.

      NOW, THEREFORE, this 29th day of July, 2015, the Defendant’s Motion to

      Disclose Identity of a Confidential Informant is hereby DENIED.

      IT IS SO ORDERED.

                                                    /s/ Jeffrey J Clark
                                                   Judge



cc:      Lindsay A. Taylor, Esquire
         Andre M. Beauregard, Esquire
         Prothonotary
         File




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