The opinion
DALTON, Judge
(dissenting in part and concurring in result).
I respectfully dissent from that portion of the opinion which holds that the cause must be reversed and remanded to give the trial court an opportunity to exercise his discretion as to whether or not the state’s witness, on a hearing of a motion to suppress evidence, should be required to divulge the name of his informant.
I dissent because I think the record in this case shows that it would have been a clear abuse of the trial court’s discretion to have required a disclosure of the informant’s name. Under the facts of this case there could have been no error in denying disclosure and appellant was not prejudiced thereby. If the trial court properly ruled the issue presented (and I think it would have been error and an abuse of discretion to have ruled it otherwise), it is immaterial that the court might have made an erroneous ruling, except for the fact that he thought such result was foreclosed by the opinion in State v. Bailey, 320 Mo. 271 , 8 S.W.2d 57, 59 .
Defendant was charged with possession of narcotics and the record shows that the charge was based upon the fact that narcotics were found in defendant’s automobile after his arrest. I fully agree with the holding that the arrest was lawful.
There were, two motions to suppress evidence. The first motion sought “to suppress evidence of narcotics taken from the automobile of the defendant.” Evidence was heard by Judge John H. Lucas, Judge of Division No. 7 of the Jackson County *450 Circuit Court, and the motion was overruled January 23, 1957.
On January 29, 1957, defendant filed a further or second motion “to suppress evidence of narcotics taken from the person of the defendant.” Evidence was heard on this motion before Judge Paul A. Buzard, Judge of the Criminal Division of the Circuit Court of said county. Practically the same evidence was again offered showing the finding of heroin in defendant’s automobile after his arrest. The facts tending to show probable cause to believe a felony had been committed are correctly reviewed by the opinion. Judge Buzard overruled this second motion to suppress the evidence and he indicated that he was not inclined to overrule the decision of the Supreme Court in the Bailey case, apparently believing he was foreclosed by that decision from ruling otherwise.
If the narcotics were found in defendant’s car upon his arrest, we are unable to see how a required disclosure of the name of informant would assist defendant in proving his innocence of the charge. The credibility, weight and value of the informant’s testimony would not be an issue in the trial of that cause.
The Bailey case states the established rule, as follows: “It would be against public policy to compel a sheriff or other officer to disclose the identity of the person or persons who inform him of facts tending to show that a given person is guilty of felony. If information of this character cannot be given to an officer freely and without fear on the part of the informant that his part in the arrest and prosecution of one suspected of felony will be made public, the detection and prosecution of crime will be intolerably hampered and be defeated altogether in many instances.”
I believe that the rule stated in the Bailey case evidences a sound public policy, vital to the protection of the public. The rule should not be departed from, except in a most exceptional case and under exceptional circumstances, and I am convinced from the reading of this record that the present case is not a case requiring a departure from this well-established rule.
An annotation in 83 L.Ed. at page 155, states the general rule as follows: “It is a general rule, subject to an exception hereinafter discussed, that the names of persons who are the channels of information leading to the detection of crime are not to be disclosed. This rule is usually observed by the courts upon a principle of public policy, and from regard to public interests, for the reason that such disclosure can be of no importance to the defense, and may be highly prejudicial to the public in the administration of justice by deterring other persons from making similar disclosures.”
The exception to the rule is stated in 83 L.Ed. at page 157, as follows: “There appears to be an exception to the general rule, which is that if disclosure of the informer’s identity is necessary to show the innocence of one accused of a crime; then the rule must yield to a stronger one which says that one is not to be condemned when his innocence can be established.” (Italics ours.)
The rule is stated in an annotation in 1 L.Ed. at page 1998, as follows: “The privilege is founded upon public policy, and seeks to further and protect the public interest in effective law enforcement. It recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officers, and by preserving their anonymity, encourages them to perform that obligation. The privilege is designed to protect the public interest and not to protect the informer. * * * The privilege against disclosure of the identity of an informer is, of course, as applicable in pre-trial proceedings in which the disclosure is sought as at the trial itself.”
While the facts testified to by officer Heinen were entirely sufficient to show probable cause to believe that a felony was being committed and to authorize a lawful) *451 arrest, the record fails to disclose any manner in which the disclosure of the informant’s identity ' could be relevant or helpful to the defense of the accused on the charge against him.
The facts upon which the decision in the case of Roviaro v. United States, 353 U.S. 53 , 77 S.Ct. 623 , 1 L.Ed.2d 639 , is based, are totally different from the facts in this case. In that case in an opinion by Burton, J., six members of the United States Supreme Court held that the applicability of the privilege of non-disclosure depends on the particular circumstances of each case and held the principle inapplicable in that case. As to count (2) it was pointed out that the informer had taken a material part in bringing about the possession of the heroin by the petitioner, was the sole participant together with the petitioner, in the transaction charged, might be a material witness as to whether the petitioner knowingly transported the drugs as charged, and was the only witness in a position to amplify or contradict the testimony of the government witnesses. As to count (1) it was pointed out that it was evident from the face of the indictment charging petitioner with a sale of heroin to John Doe that the informer was a participant in and a material witness to that sale. See summary 353 U.S. 53 , 77 S.Ct. 623 , 1 L.Ed.2d 639 .
The case of Sorrentino v. United States, 9 Cir., 163 F.2d 627 , is somewhat the same kind of a case as the Roviaro case where the informant was something more than a mere informer.
In the case before us there is no occasion for a disclosure of the informant’s name. We have only to weigh the morbid curiosity of the defendant to know the name of the individual who caused him to be caught with the drug in his possession, and his personal desire to effectively and forever remove the threat of any future disclosure by such informer, against the public interest in keeping open the channels by which the officers of the law get information to assist in the enforcement of the law and the protection of society.
The application of the rule against disclosure of an informant’s name cannot be considered and construed abstractly or apart from the hard facts of life in the particular case and the absolute necessity of securing the cooperation of members of the public in the enforcement of the law and, of course, there must necessarily be a balance of interest between the rights of the individual and the rights and necessities of society to protect itself against the criminal element. Claimed rights of the individual, which tend to destroy the social group and prevent or destroy its ability to effectively protect itself from destruction, must be considered with great care.
In this case, except for the well-established general rule evidenced by the decision in the Bailey case, the trial judge might have erroneously ruled that the name of the informer be disclosed and, if that had been done, the damage would have been done and there would have been no appeal from the order, since the state cannot appeal. Under the facts of this case any other order than the order made would have been erroneous and the appellant was not prejudiced by any failure of the trial court to exercise his judicial discretion.
Further, we think it wholly immaterial to any issue before the court on the hearing of the motion to suppress evidence whether the trial judge would have believed the informer or would have considered him a credible and reliable witness. The issue was whether the officer believed the informer and had reasonable cause to believe him. The informer was a drug addict. The officer had been dealing with him for some time and had found the information furnished by him to be reliable. The informer was not, and in most cases is not, the kind of person ordinarily referred to as a reliable, high type citizen and worthy of belief by all. Such persons are not the kind of people that obtain and have the information that can assist the officer in the enforcement of the law. They not only do not have the information but like the officers they cannot get it except *452 from those that do know. Officers must depend on the individuals who know about such facts and are willing to tell and officers may rely on those they have found to be reliable and dependable in furnishing such information.
For the reasons stated, I respectfully dissent from that part of the opinion which holds that “the judgment must be reversed and the cause remanded, to the end that the trial court, upon another trial, may, in the exercise of his discretion, determine whether the defendant can have a fair trial without requiring the officer to disclose the name of his informant.”