United States Court of Appeals, District of Columbia Circuit
Argued March 21, 2013
Unsealed August 7, 2013
Appeal from the United States District Court for the District of Columbia (No. 1:08-cv-00808)
James R. Klimaski argued the cause for appellant. With him on the briefs were John P. Racin and Lynn I. Miller.
James C. McKay Jr., Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With him on the brief were Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General.
Before: Rogers and Tatel, Circuit Judges, and Sentelle, Senior Circuit Judge.
Tatel, Circuit Judge:
After the Metropolitan Police Department searched Leola Smith's house and found no illegal drugs, she sued the Chief of Police and others, alleging that an MPD officer lied in the affidavit used to procure the search warrant. The district court, finding that Smith failed to raise a genuine issue of material fact as to the affidavit's veracity, granted summary judgment to defendants. We affirm.
On July 13, 2007, MPD Officer Thomas Ellingsworth submitted an affidavit to a D.C. Superior Court Judge seeking a warrant to search appellant Leola Smith's property at 1812 9th Street NW, Washington, D.C. In the affidavit, Ellingsworth stated that an MPD confidential informant ("CI") had carried out a controlled drug buy at Smith's property. According to Ellingsworth, a CI contacted him "[w]ithin the past seventy-two hours . . . in reference to illegal drug activity occurring within the premises known as 1812 9th Street NW, Washington D.C." The CI advised Ellingsworth that "individuals are selling crack cocaine from within the residence." Ellingsworth then "provided the CI with Metropolitan Police Department funds and dropped [the CI] off" near Smith's property. "Once inside the building the CI advised that [the CI] knocked on the house door and an unknown subject answered." The CI advised the individual of the CI's "intention to purchase a quantity of cocaine, " entered the house, and "handed that individual the MPD funds in exchange for crack cocaine." After leaving the premises, the CI "handed the M.P.D. officer a piece of white paper which contained a loose white rock like substance, a portion of which field tested positive for cocaine base."
Based on Ellingsworth's affidavit, the Superior Court Judge approved the warrant application, and on July 14 Ellingsworth and other MPD officers conducted a search of Smith's residence. The search yielded no illegal drugs.
Smith, along with Dion Franklin, another person living at the property, then filed suit in the United States District Court against Chief of Police Cathy Lanier, the District of Columbia, and several MPD officers, alleging, among other things, that the search violated their Fourth Amendment rights. Specifically, they alleged that Ellingsworth lied when he stated in his affidavit that a CI had carried out a controlled drug buy at the property. See Am. Compl. ¶¶ 88–94.
Defendants subsequently moved for a protective order to limit discovery regarding the CI, invoking the "informer's privilege, " which permits the government "to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." Roviaro v. United States, 353 U.S. 53, 59 (1957). Finding the informer's privilege applicable and concluding that no exception was warranted, the district court granted defendants' motion for a protective order.
At some point during discovery, Smith's lawyer learned that the MPD was unable to locate the file for the CI who allegedly participated in the controlled buy. Apparently as a result, the district court ordered defense counsel to "submit an ex parte affidavit attesting to counsel's efforts to meet with the confidential informant, the results of such a meeting, " and "the substance of what [counsel] has learned, if anything, from the confidential informant" about the events related to the controlled drug buy. The district court also directed counsel to file a public affidavit "attesting to the scope and results of the search made for relevant documents, including but not limited to: the originals of ...