may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
c/o LaSalle Management,
Filed June 1, 1999
Toussaint, Chief Judge
Hennepin County District Court
Keith M. Ellison, Hassan & Reed, 2311 Wayzata Boulevard, Minneapolis, MN 55405 (for appellant)
Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Foley, Judge.[*]
This is an unlawful detainer action, initiated by the property owner, respondent Bossen Terrace, but assigned to the Hennepin County Attorney's Office, according to Minn. Stat. § 504.181, subd. 2 (1998). In early 1998, respondent suspected the sale of illegal narcotics from the dwelling of appellant Deneen Miller in violation of both her lease and state law. Two Minneapolis police officers, who worked part-time for the owner, investigated the allegations and monitored appellant's dwelling. Based on their observations, they arranged two controlled purchases from appellant's premises. Lab results confirmed that crack cocaine was the substance from the first purchase.
Respondent filed this unlawful detainer action in housing court. Appellant removed the action to district court. The district court ruled that illegal narcotic sales had occurred at appellant's premises in violation of the lease. The district court relied on (1) the police officers' testimony regarding the observation of a narcotic purchase by a confidential reliable informant (CRI) from appellant's dwelling; and (2) both the resident manager's and police officers' previous observations of suspected drug activity. Because appellant claimed sole access to her apartment, the district court inferred that she knew or should have known of the illegal activity.
Appellant challenges the district court's judgment, arguing that the district court erred by not ordering the disclosure of the CRI's identity. Because the district court did not err in requiring the disclosure of the CRI, we affirm.
An unlawful detainer action is "a summary proceeding to quickly determine present possessory rights." Eagan East Ltd. Partnership v. Powers Investigations, Inc., 554 N.W.2d 621, 622 (Minn. App. 1996). "The plaintiff must plead and prove facts which show the defendant is in unlawful possession of property." Mac-Du Properties v. LaBresh, 392 N.W.2d 315, 317 (Minn. App. 1986), review denied (Minn. Oct. 29, 1986). On review, we determine only whether the district court's findings of fact are clearly erroneous. Phillips Neighborhood Housing Trust v. Brown, 564 N.W.2d 573, 574 (Minn. App. 1997), review denied (Sept. 18, 1997).
Respondent initiated this action because of the alleged sale of illegal narcotics from appellant's dwelling. In every residential lease, whether in writing or parol, the lessor and lessee covenant that neither party will allow controlled substances on the premises nor allow others to so possess or sell. Minn. Stat. § 504.181, subd. 1 (1998). A breach of this covenant "voids the lessee's * * * right to possession of the residential premises." Id. at subd. 2. Moreover, appellant's lease prohibited "unlawful activities in the unit" and allowed eviction for "criminal activity" on the premises.
In an appeal from an unlawful detainer proceeding, we are asked to review whether the district court clearly erred in finding that unlawful activity was occurring on appellant's premises in violation of the lease. Unless the district court erroneously concluded that appellant had breached the lease through her acquiescence in the unlawful activities, respondent demonstrated that appellant was in unlawful possession of the property. See LaBresh, 392 N.W.2d at 317.
On appeal, appellant raises a procedural challenge to the district court's refusal to order the disclosure of the CRI employed by the police officers. A district court's decision regarding discovery will not be reversed absent an abuse of discretion. Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987).
Appellant's challenge illustrates the tension between the broad civil procedure rules of discovery, and the statutory restriction on a police officer's disclosure of communications with a CRI. While Minn. R. Civ. P. 26.02(a) provides for the discovery of any matter relevant to a pending action, privileged matters temper such breadth. The legislature has protected a police officer's communications with a CRI by providing that a "public officer shall not be allowed to disclose communications made to the officer in official confidence when the public interest would suffer by the disclosure." Minn. Stat. § 595.02, subd. 1(e) (1998).
Case law resolving the issue of disclosure has generally arisen in the criminal context. Yet, the supreme court has applied such reasoning to disclosure in the civil context. See Erickson, 414 N.W.2d at 409; Hughes v. Dakota County, 278 N.W.2d 44, 45 (Minn. 1978).
In Syrovatka v. State, 278 N.W.2d 558 (Minn. 1979), the Minnesota Supreme Court applied the leading disclosure case from the United States Supreme Court--Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623 (1957). In deciding whether to require disclosure, the Syrovatka court described the governing factors to include
the crime charged, the possible defenses, and the possible significance of the informer's testimony, and that disclosure is required whenever it is "relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause."
278 N.W.2d at 561 (quoting Roviaro, 353 U.S. at 60, 77 S. Ct. at 628). The court went on to say that "[i]f the informant was an eyewitness * * * courts have at times, ordered disclosure," yet, if he was a mere participant, "courts would protect his identity." Id. at 561-62 (quoting 2 Jack B. Weinstein, Evidence, § 510(06)).
The district court rejected appellant's request for disclosure because the police officers' testimony supported the finding that illegal narcotic sales had occurred. The officers had described searching the CRI prior to the buy, watching the CRI enter appellant's dwelling, and shortly thereafter return with a narcotic on the first occasion. While the CRI was a primary eyewitness to the purchases, the district court did not rely on any observations, hearsay, or information from the CRI. Instead, the district court relied and ruled on the testimony of the police officers, who searched and observed the CRI during all but the moment of sale. Furthermore, the property manager and officers had described other activity consistent with and evidence of drug trafficking.
In reviewing the need for disclosure, courts have examined the need for in-camera review of an informant. In-camera review allows a court to determine with "`reasonable probability that the informer's testimony is necessary to a fair determination of guilt or innocence.'" Id. at 562 (quoting Weinstein supra (analyzing requirements if informant were eyewitness)).
At oral argument before this court, appellant stated that she had requested an in-camera review of the informant before the district court. Yet, a thorough reading of the record evidences no such request. The defendant carries the burden of establishing the need for in-camera questioning of an informant. State v. Wessels, 424 N.W.2d 572, 574 (Minn. App. 1988), review denied (July 6, 1988). Because appellant did not produce evidence of the in-camera review request, appellant fails to meet her burden of establishing the need for such review.
Moreover, appellant fails to satisfy the substantive requirements of in-camera review which also apply in the disclosure context. Speculation as to the helpfulness of informants' testimony does not justify in-camera disclosure. Syrovatka 278 N.W.2d at 562. Disclosure must be premised on an explanation of "precisely what testimony [the petitioner] thinks the informant will give and how this testimony will be relevant to a material issue of guilt or innocence." Id.; accord State v. Brunes, 373 N.W.2d 381, 385 (Minn. App. 1985), review denied (Oct. 11, 1985).
Appellant's disclosure request (1) relies on little more than speculation; (2) infers a challenge to the credibility of the police officers and the informant, but does not articulate what testimony the informant may offer to justify reversal; and (3) suggests that the informant will testify to exculpatory facts. The Syrovatka court noted that "[i]f there is little likelihood that an informer's testimony will be helpful to defendant in overcoming an element of the crime charged, the disclosure is not required." Id. at 562 (citing supra). Appellant's disclosure request does not meet the Syrovatka standard, while inferring knowledge of the illegal activity.
Finally, appellant argues that she should not be held responsible for the drug activity because she did not have "sufficient awareness" of the activity. This court has previously ruled that a public housing tenant is liable for those activities, which breach a lease, even if the tenant neither participated in nor controlled the conduct. Phillips Neighborhood Housing Trust v. Brown, 564 N.W.2d 573, 575 (Minn. App. 1997), review denied (Sept. 18, 1997). Because appellant claimed sole control over her dwelling, appellant is liable for sales that occurred on the premises. Such activity violates both appellant's lease and state law. See Minn. Stat. § 504.181, subd 1. Therefore, the district court did not err in concluding that respondent established appellant's unlawful possession of the premises, justifying unlawful detainer action.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * *." Minn. R. Civ. P. 26.02(a).