by Anthony Accurso

The Supreme Court of the State of Minnesota affirmed a decision by the Court of Appeals, which held the district court erred in denying a defendant’s request for non-identifying information about a confidential informant (“CI”).

In February 2017, law enforcement filed an affidavit requesting a search warrant for the home of Tyler James Dexter. The affidavit claimed a CI had visited Dexter’s home within the previous 72 hours and saw firearms and large quantities of marijuana. Police executed the warrant, found the marijuana and guns, and charged Dexter with fifth-degree possession of a controlled substance under Minn. Stat. Section 152.025, subd. 1(1).

Prior to trial, Dexter filed for information relating to the CI, both their identity and information about their relationship with police. The district court denied this information, citing the State’s common-law privilege “to withhold from disclosure the identity of persons who furnish information” to law enforcement. See Roviaro v. United States, 353 U.S. 53 (1957).

Dexter then filed to suppress the evidence of the search on the grounds that the CI was an agent of the State and had search his property illegally. This motion was denied because Dexter lacked information on the CI’s relationship with police, which had earlier been denied to him.

Dexter was convicted, but the Court of Appeals overturned his conviction on the grounds that the district court properly denied identifying information on the CI but erred in failing to disclose the non-identifying information. The State then appealed to the Minnesota Supreme Court.

The Court found that the State’s common-law privilege is “limited by its underlying purpose.” Roviaro. Further, when “the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged.” Id. Thus it held that the Court of Appeals properly concluded non-identifying information about the CI must be disclosed.

Minn. R. Crim. P. 9.01, subd. 1 states, “The prosecutor must, at the defense’s request ... allow access ... to all matters within the prosecutor’s possession or control that relate to the case, except as provided in Rule 9.01, subd. 3….” The State argued that the information requested did not “relate to the case,” and thus Dexter had no right to it.

The Court disagreed. The Fourth Amendment protects against searches by the State but not those conducted by private persons. United States v. Jacobsen, 466 U.S. 109 (1984). However, if a private person acts as an agent of the State, then Fourth Amendment protections apply. State v. Buswell, 460 N.W.2d 614 (Minn. 1990). To determine whether a person acted as a government agent, courts must, on a case-by-case basis, consider “all the facts and circumstances relative to the search.” Id. “It is only when the government takes some type of initiative or steps to promote the search, that a private citizen is deemed to be an agent or instrument of the government.” Id.

The warrant application was vague about the CI’s relationship to law enforcement. Dexter’s motion had requested information about when the CI began working with the police, as well as the timing and content of his communications with the police. He also requested information about when the CI visited his home.

The Court determined that this information was directly related to the case as it would establish “whether the informant acted as a police agent and, if so, whether the informant entered Dexter’s home in violation of the Fourth Amendment.”

Finally, the Court sought to alleviate the State’s concerns about the “slippery slope” of allowing information to be disseminated which might be used to identify the CI. The Court said district courts could conduct an in camera review to determine what information might be an issue to address the State’s concerns.

Accordingly, the Court upheld the Court of Appeals’ decision to vacate Dexter’s conviction, grant his motion for non-identifying information on the CI, and allow him to file a renewed suppression motion based on any information obtained, should he choose to do so. See State v. Dexter, 941 N.W.2d 388 (Minn. 2020).

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