            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                               :           ID No. 1703022133
                                                :           In and for Kent County
                 v.                             :
                                                :
QUAHEEM HALL,                                   :
                                                :
                 Defendant.                     :
                                                :

                                            ORDER

                                   Submitted: July 26, 2017
                                   Decided: August 3, 2017

      Defendant Quaheem Hall (hereinafter “Mr. Hall”) moves to compel disclosure of
the identity of a confidential informant. The State opposes the motion. Upon
consideration of the written submissions of the parties, 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. However, this privilege is not
absolute. 1 In order to overcome this privilege, the defense must show, beyond mere
speculation, “that the informer may be able to give testimony [that] would materially
aid the defense.”2
      2. There are four scenarios where disclosure of a confidential informant’s
identity typically arise:
      (1) [t]he informer is used merely to establish probable cause for a search[;]
      (2) [t]he informer witnesses the criminal act[;] (3) [t]he informer



1
    D.R.E. 509(c).
2
    Cooper v. State, 32 A.3d 988, 2011 WL 6039613, at *9 (Del. Dec. 5, 2011) (Table).
      participates but is not a party to the illegal transaction[; or] (4) [t]he
      informer is an actual party to the illegal transaction. 3

Delaware courts consistently hold that “the privilege afforded under Rule 509 is
protected in the first Flowers scenario but not in the fourth. In 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.”4
      3. In the event of an adequate prima facie showing, the Court will hold a Flowers
hearing to determine whether the State must disclose a confidential informant’s
identity. However, the Court will not hold such a hearing unless the defense shows
“beyond mere speculation, that the confidential informant may be able to give
testimony that would materially aid the defense.”5 A defendant is only entitled to a
hearing on this matter if he or she is capable of meeting this burden. 6
      4. Here, Mr. Hall focuses on his alleged entitlement to a Flowers hearing because
the confidential informant’s information established probable cause to stop and
search his vehicle. He argues that the only basis for the vehicle stop was the
information provided by this informant. He further argues that information about
the confidential informant is critical to determine whether the State had probable
cause to stop the vehicle.
      5. In this case, Mr. Hall’s motion fails to establish a need for a Flowers hearing
on the basis that information provided by a confidential informant established
probable cause for a search. This fits squarely within the first scenario described
above. Delaware courts recognize that a confidential informant’s identity is


3
    State v. Flowers, 316 A.2d 564, 567 (Del. Super. Ct. 1973).
4
    Butcher v. State, 906 A.2d 798, 802–03 (Del. 2006).
5
    Cooper, 2011 WL 6039613, at *9.
6
 Miller v. State, 154 A.3d 1124, 2017 WL 444843, at *4 (Del. Jan. 3, 2017), as revised (Jan. 31,
2017) (Table).

                                                  2
protected when that person merely establishes probable cause for a search. 7 When
confronted with such a scenario, the Court will not hold a Flowers hearing to
determine whether the confidential informant’s identity is privileged. 8
      6. While Mr. Hall’s motion, in a conclusory manner, also implies that the
confidential informant witnessed criminal activity, he recites no factual allegations
or support justifying such a conclusion. With regard to the second scenario, a
hearing is inappropriate in this case for two reasons. First, in support of this Flowers
scenario, Mr. Hall’s allegations are limited to stating “[a]s stated in State v. Flowers,
under scenarios (1) and (2) as is the case here . . . .” He fails, however, to even allege
that the confidential informant was present during any criminal activity, much less
the charges at issue in the indictment. Mr. Hall provides no legal authority, and the
Court was unable to locate any, where a court found such a motion sufficient to
warrant a Flowers hearing.
      7. Second, while generally a court will conduct a Flowers hearing when the
defense alleges, beyond mere speculation, the second Flowers scenario,9 a court is
not required to hold such a hearing even under the second Flowers scenario when
the defense fails to meet its prima facie burden of demonstrating that compelled
disclosure of the confidential informant’s identity will materially aid the defense.10



7
    E.g., Butcher, 906 A.2d at 802–03; Flowers, 316 A.2d at 367.
8
  See Cooper, 2011 WL 6039613, at *10 (finding that it was unnecessary for the Superior Court to
hold a Flowers hearing to determine that the confidential informant’s identity was privileged when
the confidential informant merely provided probable cause for an arrest).
9
    E.g. Butcher, 906 A.2d at 803.
10
  See Davis v. State, 718 A.2d 527, 1998 WL 666713 (Del. July 15, 1998) (Table) (stating that
the Superior Court did not need to hold an in camera Flowers hearing after the defendant alleged
the confidential informant witnessed criminal activity because the defense failed to meet its burden
of showing beyond mere speculation that the confidential informant would materially aid the
defense).

                                                 3
Here, Mr. Hall’s motion provides no information or even a claim that the confidential
informant’s identity would assist his defense in any way.          11
                                                                        Namely, he does not
allege that the confidential informant will (or even possibly could) provide
exculpatory testimony or would otherwise assist in his defense. His motion merely
states that “the Court should hold an in camera ‘Flowers hearing’ to determine
whether disclosure would aid the defense.” Since Mr. Hall must have first set forth
allegations and some justification in his written motion that the evidence will
materially aid his case, it is inappropriate for the Court to conduct a Flowers
hearing. 12
       THEREFORE, Mr. Hall’s motion for an in camera Flowers hearing is
DENIED. His motion to compel the State to produce a complete criminal history
and other such information of the confidential informant is also DENIED.
       IT IS SO ORDERED.


                                                          /s/Jeffrey J Clark
                                                               Judge




11
  Miller, 2017 WL 444843, at *4 (requiring a defendant to show beyond mere speculation that the
confidential informant could materially aid the defense).
12
  See id. (stating that if the defendant meets the burden of showing that the identity of the
confidential informant will materially aid his defense, he is entitled to a hearing).

                                              4
