APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 80-00188)
Before Gibbons, Hunter and Garth, Circuit Judges.
The Government appeals in this case from two orders of the United States District Court for the Eastern District of Pennsylvania. The first order dismissed the indictment against appellee, Anthony Jiles, because the Government refused to disclose the identity of a confidential informant. The second order suppressed an identification from a photographic display, and a post-arrest statement resulting therefrom, because the display contained a picture of appellee secured from his juvenile records. We will reverse both orders.
The appellee in this case, Anthony Jiles, was indicted on June 17, 1980, and charged with an assault on Postal Service Carrier Daniel A. Kuzan.*fn1 At the pretrial hearing, Kuzan testified that on May 5, 1980, while he was on his route in North Philadelphia, he was pushed into an alley and "mugged" by three young men. The assailants stole Kuzan's wallet but were unable to take his keys or mail. Kuzan observed the faces of two of his assailants during the assault.
After he reported the incident to local police, Kuzan described two of his assailants to postal inspector Edward Alegado. Inspector Alegado, through the use of an "identikit," prepared sketches of the assailants.
The next day, on May 6, 1980, Postal Inspector Ostwalt presented an array of photographs to Kuzan, based on the composite sketches from the day before; he asked Kuzan if he could identify his assailants from the pictures. Appellee's picture was not in this first group of photographs and Kuzan did not recognize any of the portraits.
Within a week after the assault, a confidential informant, who was an eyewitness to the assault, identified appellee, Anthony Jiles, as one of the assailants. The informant provided this information in return for a promise of complete anonymity.
Based on this information, Inspector Ostwalt sought from the Philadelphia Police Department any available photographs of Anthony Jiles. Because appellee's records were related to juvenile proceedings, Ostwalt was required to secure special approval for their release. He consulted with Captain Anthony Pace of the Philadelphia Police, who in turn presented the problem to Frank Cavanaugh, Captain of the North Central Detective Division. Captain Cavanaugh approved the request for Jiles' photograph.
After the postal inspector obtained appellee's photograph, he prepared a second display of photographs, this time with appellee's picture. This photographic array was shown to the mail carrier on May 19, 1980, and he identified the appellee's photograph as being that of one of the persons who had assaulted him on May 5, 1980. After this identification, Kuzan asked the postal inspector whether the photograph he selected was that of one of his assailants. The postal inspector responded: "It could be. We have received some information that it could be the guy." Appendix at 46.
Primarily on the basis of this information, a warrant for the arrest of Jiles was issued on May 20, 1980. The appellee was arrested on May 21, 1980, and, after being advised of his constitutional rights, he issued a post-arrest statement. Appellee admitted to being in the general vicinity at the time of the assault but claimed that two other individuals, "Benny" and "Benny's friend", actually attacked Kuzan.
The appellee was indicted on June 17, 1980. Following his indictment, appellee's counsel brought several suppression motions. They included: (1) a motion to suppress the identification of appellee from the photographic display; (2) a motion to reveal the identity of the confidential informant; (3) a motion to suppress the defendant's post-arrest statement; and (4) a motion to suppress any in-court identification of the appellee by Kuzan. Following hearings on these motions, the district court granted the first three, but denied the fourth.*fn2 The judge/court ordered that appellee's counsel be provided with an opportunity to meet with the confidential informant and that the identification of appellee's photograph and appellee's post-arrest statement be suppressed.
The Government advised the district court that it could not breach its promise of anonymity to the confidential informant and, therefore, would not comply with the disclosure order. In response to the Government's position, the district court, pursuant to ...