The opinion
Ringold, J.
(dissenting)—Casal submitted an affidavit
and offer of proof to the trial court setting forth Batham's admission that he was the informant and detailing the factual discrepancies between the affidavit in support of the warrant and the information Batham claimed to have given the police. After reviewing this material, the trial judge stated that Batham "appears to be the informant." Under these circumstances, I would hold that Casal made a sufficient showing to justify an in camera hearing on the applicability of the informant privilege.
Disclosure of an informant's identity is governed by CrR 4.7(f)(2): 6
Informants. Disclosure of an informant's identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe upon the constitutional rights of the defendant. Disclosure of the identity of witnesses to be produced at a hearing or trial shall not be denied.
The informant's privilege is not absolute, even when disclosure of the informant's identity is relevant only to the determination of probable cause, United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1983); United States v. Anderson, 509 F.2d 724 (9th Cir. 1974), cert. denied, 420 U.S. 910 , 42 L. Ed. 2d 840 , 95 S. Ct. 831 (1975), because the warrant clause of the Fourth Amendment is premised upon the affiant's good faith. See Franks v. Delaware, 438 U.S. *318 154, 164, 57 L. Ed. 2d 667 , 98 S. Ct. 2674 (1978). It is impossible to determine from the record before us whether the failure to disclose the informant's identity will infringe upon Casal's Fourth Amendment rights. An informed resolution of this question is dependent upon an in camera hearing.
In concluding that Casal did not make a sufficient showing for an in camera hearing, the majority distinguishes State v. Dick, 362 So. 2d 547 (La. 1978), where the defendant produced the informant, and United States v. Kiser, supra, where the defendant presented an affidavit from the informant. In so doing, the majority effectively holds that the defendant must produce a sworn statement from the alleged informant admitting his identity prior to any inquiry into the applicability of the privilege. This places an unfair evidentiary burden on the defendant. Here, Casal made several attempts to serve Batham with a subpoena but was unable to locate him. Part of Casal's motion was directed to requiring the State to disclose Batham's location. As noted by our Supreme Court, the whereabouts of the informer is as important to the defendant as the identity of the informer. State v. Harris, 91 Wn.2d 145, 152 , 588 P.2d 720 (1978).
Casal made a substantial preliminary showing that Batham was the informant and that the affidavit misstated crucial facts. Under these circumstances, the proper procedure is for the court to hold an in camera hearing to determine whether Batham was, in fact, the informant. This procedure would in no way prejudice the rights of the State or the safety of the informant and would further society's interest in preventing serious police misconduct. Casal concedes that if the court is satisfied that Batham is not the informant, the inquiry is ended.
If the court determines that Batham is the informant, the in camera hearing must be extended to determine whether Casal is entitled to disclosure of Batham's identity and to an open evidentiary hearing under Franks v. Delaware, supra. Resolution of these questions depends upon *319 whether Casal has made a threshold substantial showing of falsehood by the affiant. See United States v. Kiser, supra at 1273. If the court determines that such a showing has been made, Casal is entitled to disclosure of the informant's identity and a Franks hearing. At the Franks hearing, it would be Casal's burden to establish by a preponderance of the evidence that the affiant made intentional or reckless misrepresentations necessary to finding probable cause to issue the warrant. Franks, 438 U.S. at 156 .
I would vacate Casal's conviction and remand to the trial court for an in camera hearing and, if necessary, a Franks hearing. In the event the trial court found that Casal is not entitled to a Franks hearing, or if such a hearing were held and Casal did not establish his claim, the court could reinstate the judgment of conviction.
I dissent.
Review granted by Supreme Court November 2, 1984.
To the extent that RCW 5.60.060(5) is inconsistent with this rule, it is superseded by the rule. CrR 1.1.