A07-512

State of Minnesota,

Appellant,

vs.

Johnny Rambahal,

Respondent.

Filed September 25, 2007

Reversed and remanded

Willis, Judge

Dakota County District Court

File No. K2-07-5

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

James C. Backstrom, Dakota County Attorney, Thomas E. Lockhart, Special Staff Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for appellant)

Mark D. Nyvold, Special Assistant State Public Defender, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for respondent)

Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

The state challenges the district court’s order requiring the state to disclose the identity of a confidential informant. Because we conclude that the district court abused its discretion by ordering disclosure of the identity of the confidential informant, who was not a material witness to the crime with which respondent is charged, we reverse and remand.

FACTS

In late 2006, Burnsville law enforcement was investigating a series of robberies of local businesses. In December 2006, a police officer interviewed a confidential informant concerning those robberies, and, for reasons not clear from the record, two police reports were prepared describing the interview. Both reports state that the informant told the police officer that (1) a .357 pistol was used in one of the recent robberies; (2) the informant learned from “a cousin” that D.H. had the pistol at his home and that D.H. had told those present that he “should take his gun and go get the person who made him mad”; and (3) that the pistol was “owned by [D.H.] and he was known to carry it under the seat of his vehicle.” One report states that the source of the ownership information was “J. Rambahal,” who is appellant Johnny Rambahal; the other report does not indicate the source of the information.

On January 1, 2007, Burnsville police officers saw Rambahal and D.H. walking down the middle of County Road 11. As the officers approached the two men, Rambahal turned and walked toward the side of the street. Both men were searched, and a police officer discovered “nearly a full box of .357 ammunition” in Rambahal’s possession. A search of the area revealed a loaded .357 pistol “on the ground on top of the newly fallen snow next to where Rambahal was standing.” D.H. told police that the pistol belonged to Rambahal, who had dropped the pistol when he saw the officers. Rambahal told the police that D.H. had asked him to hold the .357 ammunition but that he did not know who the pistol belonged to.

Rambahal was charged with being an ineligible person in possession of a firearm, in violation of Minn. Stat. § 624.713, subd. 1 (2006). Shortly before trial, the two police reports were disclosed to the defense. Rambahal moved for an order requiring the state to disclose the identity of the confidential informant, and the district court granted the motion. In its order, the district court concluded that “[t]he testimony of the concerned citizen that the gun belonged to the other party present at [Rambahal’s] arrest would be helpful to [him] in overcoming an element of the crime charged, possession, and is most certainly material to the issue of [Rambahal’s] guilt.” The district court also found that it was not “mere speculation” that the confidential informant’s testimony would be “necessary” to a determination of Rambahal’s guilt. The district court therefore concluded that the necessity for disclosure “outweighs any hindrance disclosure may have on effective law enforcement.” This appeal by the state follows.

D E C I S I O N

Rambahal argues first that we should dismiss the state’s appeal because the state has not established that the district court’s order has a “critical impact” on the state’s case, relying on State v. Hunter, 349 N.W.2d 865 (Minn. App. 1984). We disagree. Although Hunter did apply the critical-impact requirement to a discovery order, a later case criticized Hunter and held that a critical-impact analysis was not required on an appeal from a discovery order. See State v. Renneke, 563 N.W.2d 335, 337 (Minn. App. 1997). And in any event, this court has refused to apply the critical-impact requirement on an appeal by the state from a pretrial order requiring the disclosure of the identity of a confidential informant. See State v. Solheim, 477 N.W.2d 785, 786-87 (Minn. App. 1991). We conclude, therefore, that the state need not establish that the district court’s order would have a critical impact on its case.

II.

The state argues that the district court erred by ordering disclosure of the confidential informant’s identity. We review a district court’s order requiring the disclosure of a confidential informant’s identity for an abuse of discretion. See State v. Martinez, 270 N.W.2d 121, 122 (Minn. 1978). The state has a legitimate interest in protecting the identity of a person who aids law enforcement. State v. Litzau, 650 N.W.2d 177, 184 (Minn. 2002). Thus, a defendant has the burden of establishing that the need for disclosure overcomes the state’s interest in protecting its sources. State v. Ford, 322 N.W.2d 611, 614 (Minn. 1982).

When determining whether to require the disclosure of a confidential informant’s identity, a court considers four factors: (1) whether the informant is a material witness, that is, a witness to the actual crime; (2) whether the informant’s testimony is material to the issue of the defendant’s guilt; (3) whether the officer’s testimony is suspect; and (4) whether the identity of the informant might demonstrate an entrapment defense. Syrovatka v. State, 278 N.W.2d 558, 561-62 (Minn. 1979). Here, the district court did not address the third and fourth factors, and at oral argument, the parties agreed that those factors are not at issue.

The state argues that the first Syrovatka factor does not support disclosure because the confidential informant was not a material witness to the crime with which Rambahal is charged. If a confidential informant is a mere transmitter of information and not a material witness to the actual crime, the disclosure of the informant’s identity is generally not required. Litzau, 650 N.W.2d at 184. Further, even if a confidential informant were involved in an earlier part of the crime, either as a participant or a witness, that fact alone does not necessarily make the informant’s testimony material. Ford, 322 N.W.2d at 614. Here, it is undisputed that the confidential informant was not present when Rambahal was arrested on January 1 and is not, therefore, a material witness to whether Rambahal possessed the pistol on that date. Thus, we conclude that the first factor does not support disclosure.

Under the second Syrovatka factor, a court must consider whether the confidential informant’s testimony is material to the issue of the defendant’s guilt. Syrovatka, 278 N.W.2d at 562. Rambahal argues that the confidential informant’s testimony is material to the issue of his guilt because “[t]he informant has information directly relevant to ownership of the gun . . . .” But to prove a violation of section 624.713, subdivision 1, the state must prove only that Rambahalpossessed the pistol, either actually or constructively, on January 1, not that Rambahal owned the pistol. See State v. Porter, 674 N.W.2d 424, 427 (Minn. App. 2004). Thus, even if we were to assume that the confidential informant could testify as to the ownership of the pistol, whether Rambahal owned the pistol is not material to whether he possessed the pistol on January 1. We conclude therefore that the second factor also does not support disclosure.

Because neither of the applicable Syrovatka factors supports disclosure, the district court abused its discretion by requiring the disclosure of the confidential informant’s identity. We therefore reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.