"to abolish the informer's privilege from its law of evidence,
and to . . . disclos[e] . . . the informer's identity in every such
preliminary hearing where it appears that the officers made the
arrest or search in reliance upon facts supplied by an informer
they had reason to trust."
386 U.S. at
386 U. S.
312.
We have, to be sure, recently concluded that the Fourth and
Fourteenth Amendments entitle a defendant to a veracity
Page 465 U. S. 327
hearing if he makes a substantial preliminary showing that an
affiant knowingly and intentionally, or with reckless disregard for
the truth, included in a warrant affidavit a false statement
necessary to the finding of probable cause.
Franks v.
Delaware, 438 U. S. 154
(1978). But in so doing, we emphasized that
"[t]he deliberate falsity or reckless disregard whose
impeachment is permitted today is only that of the affiant, not of
any nongovernmental informant."
Id. at
438 U. S. 171.
The decision in
Franks neither required nor contemplated
routine disclosure of informants' identities, and we took care to
avoid deciding or predetermining
"the difficult question whether a reviewing court must ever
require the revelation of the identity of an informant once a
substantial preliminary showing of falsity has been made."
Id. at 170.
In
People v. Dailey, supra, the state court decision on
which the challenged judgment rests, the Colorado Supreme Court
clearly recognized the limits of the rights conferred by the Fourth
and Fourteenth Amendments.
Id. at 1074. It concluded,
however, that
Franks established only the federal
constitutional standard, and held that the State Constitution
entitles defendants to challenge the informant's veracity and in
appropriate circumstances to have his identity disclosed for that
purpose. Although this case would be resolved differently under
federal law,
see McCray v. Illinois, supra, at
386 U. S.
306-309, I agree that the challenged judgment rests
solely on state law grounds, and that this Court lacks jurisdiction
to review it.
JUSTICE STEVENS, concurring.
In view of the growing public interest in the magnitude of our
workload, [
Footnote 1] I have
on occasion taken note of some of the ways in which the present
Court makes use of its resources. Several years ago, I expressed
concern about the purely advisory
Page 465 U. S. 328
character of individual opinions dissenting from orders denying
petitions for certiorari.
See Singleton v. Commissioner,
439 U. S. 940,
944-945 (1978) (opinion of STEVENS, J.). More recently I have noted
that the Court is prone to grant certiorari in cases that do not
merit our attention.
See Watt v. Alaska, 451 U.
S. 259,
451 U. S.
273-276 (1981) (STEVENS, J., concurring);
see also
Watt v. Western Nuclear, Inc., 462 U. S.
36,
462 U. S. 72-73
(1983) (STEVENS, J., dissenting). [
Footnote 2] Last Term, in
South Dakota v.
Neville, 459 U. S. 553
(1983), and
Michigan v. Long, 463 U.
S. 1032 (1983), the Court decided to enlarge its power
to review state court decisions. I dissented from those novel
assertions of appellate jurisdiction in part because I was
concerned about the undesirability of the rendition of purely
advisory opinions by this Court.
See id. at
463 U. S.
1065 (STEVENS, J., dissenting); 459 U.S. at
459 U. S. 566
(STEVENS, J., dissenting);
see also 463 U.S. at
463 U. S.
1054 (BLACKMUN, J., concurring in part and in judgment
in
Michigan v. Long) (noting "an increased danger of
advisory opinions in the Court's new approach").
Today, JUSTICE WHITE "agree[s] that the challenged judgment
rests solely on state law grounds, and that this Court lacks
jurisdiction to review it."
Ante at
465 U. S. 327.
He nevertheless provides us with an advisory opinion, in which THE
CHIEF JUSTICE and JUSTICE O'CONNOR join, concerning the merits of
the case. We of course have jurisdiction to determine our
jurisdiction over this case, but once we agree that we lack
jurisdiction, this case no more provides a vehicle for deciding the
question upon which three Justices now volunteer an opinion than if
the petition for a writ of certiorari had never been filed. I, of
course, fully respect their right to their opinions concerning that
question, just as I respect other scholars who disagree with the
wisdom of the choice made in
Hayburn's Case,
2 Dall. 409 (1792). I merely note that today's advisory opinion is
consistent with the Court's
Page 465 U. S. 329
emerging tendency to enlarge its own involvement in litigation
conducted by state courts. This tendency feeds on itself, for it
can only encourage litigants -- particularly institutional
litigants -- to file even more petitions for certiorari in the hope
of obtaining, if not review and reversal, at least an opinion by a
number of Supreme Court Justices in support of their position. In
light of the increasing flood of certiorari petitions, today's
advisory opinion provides further support for concluding that this
situation "will very likely progressively worsen." [
Footnote 3]
[
Footnote 1]
See, e.g., Coleman, The Supreme Court of the United
States: Managing its Caseload to Achieve its Constitutional
Purposes, 52 Fordham L.Rev. 1 (1983); Note, Of High Designs: A
Compendium of Proposals to Reduce the Workload of the Supreme
Court, 97 Harv.L.Rev. 307 (1983).
[
Footnote 2]
See generally Stevens, Some Thoughts on Judicial
Restraint, 66 Judicature 177, 180 (1982).
[
Footnote 3]
White, Challenges for the U.S. Supreme Court and the Bar:
Contemporary Reflections, 51 Antitrust L.J. 275, 280 (1982).
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