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 b e able to give testimony [that] wo uld materially

aid the defense. ” 2

2. Th ere are four scenarios where disclosure of a confidential informant’s

identity typically arise :

(1) [t] he informer is used merely to establ ish probable cause for a search[;] (2) [t] he informer w itnesses 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, 2 011) (Table)

.2

participates but is not a p arty to the illegal transaction[; or] (4) [t] he informer is an actual pa rty 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

de termines that the informer’s testimony is material to the defense. ” 4

3. In the event of an adequate prima facie showing, t he Cou rt 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 wo uld materially aid the defense. ” 5 A defendant is o nly 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 th is informant . He further argues that i nformation abou t

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 se arch. This fits squarely within the first scenario described

ab ove. 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).3

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 thi s case for two reasons. First, i n 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 infor mant was present during any criminal activity , much less

the charges at issue in the indictment

. Mr. Hall provide s no legal authority

, and the

Court was unable to locat e any , whe re a court found such a motion sufficient to

warrant a Flowers hearing.

7. Second, w hile generally a court will conduct a Flowers heari ng when the

defense alleges , beyond mere speculation, the second Flowers sce nario, 9 a court is

not required to hold such a hearing even under the second Flowers scenario when

the defense fails to me et 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 6 039613, at *10 (find ing 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 1 5, 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 in formant would materially aid the defense).4

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 i n 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 . H is 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).