Many of our cases originate from an anonymous call, information provided by a police informant, or allegations from a jailhouse snitch. Additionally, many of my clients ask me whether they should be working as an informant for leniency in their own cases. This is a short guide to informants and how they pop up in criminal cases.
THE ANONYMOUS TIPSTER
This one is pretty common. Police will get an anonymous call from someone claiming that they’ve seen suspicious activity, most often suspected drug transactions, but also impaired driving, break-ins, and domestic violence. Tip lines like Crime Stoppers encourage anonymous reports, and sometimes promise money in exchange for information leading to an arrest. Clients often wonder whether anonymous tips can be used against them.
The answer is that it depends on the circumstances. Police have the ability to act on anonymous tips, but can’t automatically stop a vehicle, detain a person, or enter a home without some indication that the tip is reliable. Oftentimes this means that an officer has to corroborate some of what the tipster has claimed before he or she can act on the tip. For example, if the tipster claims that they’ve seen a suspected drunk driver, an officer will often watch the car in question to see if it is weaving, breaking any traffic laws, or otherwise appears suspicious before stopping it. Similarly, a suspected drug dealer will often be watched by undercover units to try and corroborate suspicious behavior before stopping the target of an anonymous tip. The key here is reliability, and generally speaking, the more detailed an anonymous tip is and the more an officer is able to corroborate those details, the more reliable the tip will be when it is challenged in court.
A classic example of an anonymous tip involves a caller telling police that a suspect will travel on a certain date to a certain location with the intent to deliver drugs. In this scenario, courts look for whether the tip has “predictive reliability,” that is, does the tip predict behavior beyond what anyone on the street could observe? This means that most of the time it is insufficient to stop a driver based on a description of the driver, the car he’s driving, or his general location, because those are details that would be available to the general public. Instead, officers can only act on an anonymous tip when the caller predicts future behavior, such as a stop at a convenience store to meet with an alleged drug purchaser. Like all cases, whether or not a stop based on an anonymous tip depends on the details and an experienced criminal attorney can help you sort out whether you are able to challenge an anonymous tip that led to a traffic stop.
THE CONFIDENTIAL INFORMANT
Also common, the confidential informant, or “CI,” is a mainstay in drug investigations. It works like this: police arrest a low-level drug offender, usually an addict, and tell them they won’t be booked in exchange for providing information to law enforcement and making undercover recorded drug buys. When the street-level distributor is implicated, the police try the same tactic, attempting to work their way up to high-level drug distributors.
Confidential informants are often treated by the court system as more reliable than an anonymous tipster because the police know the identity of the informant and can speak to their past reliability. CI’s also regularly wear an audio or video “wire” and can corroborate their activities by way of a recording.
That doesn’t mean that a CI is beyond question in court, though. CI’s are, by nature, unreliable witnesses. They are oftentimes drug addicts engaged in their own criminal behavior, and they have an immediate incentive to implicate others by any means possible, because their freedom depends on it. In a shocking number of cases, controlled buys are not captured by a CI’s recording system and the prosecutors have to rely on the informant’s testimony to establish an alleged drug transaction. I’ve handled several cases in which an informant later admits to bringing in their own drugs to a controlled buy in order to assure police that they’re holding up their end of the bargain. You don’t need to think too much about where the CI’s who engage in this behavior hide the drugs in question…
CI’s have protected status by statute, meaning that law enforcement does not have to disclose an informant’s identity until it becomes necessary to determine whether a case should be set for trial. Many prosecutors take the position that they will revoke pretrial offers once a CI’s identity is disclosed. This practice has been the subject of recent litigation, and recent appellate decisions (including a case that I handled) have required earlier disclosures of an informant’s identity to defense attorneys so that clients can assess their credibility and make a well-informed decision on whether they want to take a deal or go to trial. However, judges have the ability to limit a defendant’s ability to share the identity of an informant with others, and can issue a protective order to keep clients from sharing informant names or videos with others.
THE JAILHOUSE SNITCH
People in jail or prison only want one thing: to be out of jail or prison. That’s why we will always have to deal with the jailhouse snitch. I and many of my colleagues view this type of informant as the least credible, because the informant has a high motive to lie and often little or no corroboration for their claims.
Those that have the most serious charges are often the target of jailhouse snitches. Serious cases, particularly those in the news, give jailhouse snitches an outlet to fabricate claims and go to a prosecutor and ask for leniency in exchange for supposed admissions from a high-profile defendant. Most jailhouse snitches have plenty of time, and access to publicly-available material like criminal complaints or news reports to come up with a foundation for their claims. Almost always the jailhouse snitch will claim that they became a confidant to a homicide defendant, accused drug dealer, or other high-profile target and claim that he or she spontaneously confessed to them in jail. Most of the time it’s garbage, but prosecutors almost always jump at the chance to present testimony from a jailhouse snitch because they have little to lose by doing so. In almost every homicide case I’ve handled, a jailhouse snitch has emerged in one form or another claiming that my client spontaneously confessed their guilt.
An experienced criminal defense attorney will know to thoroughly research a jailhouse snitch and present evidence of inconsistencies, omissions, and publicly available information that form the basis of a claim. Jailhouse snitches are almost always subject to brutal cross examinations that expose their incentive to lie, inconsistencies in their reports, and own criminal histories.
SHOULD I WORK AS AN INFORMANT?
I get this question a lot and almost always my answer is no. Most of the time, the leniency a defendant receives is minimal compared to the risk of acting as an informant. Moreover, many CI agreements are open-ended and allow a drug investigator to determine the degree of cooperation (hint: they never believe that a client has cooperated fully). Finally, working as an informant jeopardizes the recovery of addicts struggling to maintain sobriety when those same clients are forced to interact with drug dealers. While there are always exceptions to the rule, I believe that in most cases it is easier, and safer, to defend a case on the merits than trying to implicate others.