An officer and an informant exchange information related to an investigation. Photo Dale Stockton
FEATURED IN INVESTIGATION
My October column dealt with confidential, reliable informants. Along with a model policy and procedure for department personnel using informants, the article also provided information on the use and audit of department undercover funds, and some practical suggestions on how to recruit informants.
This article deals with establishing the reliability of informant information for use in securing arrest and search-and-seizure warrants. For the purposes of this article, a confidential informant is a person formally registered and compensated by the department for supplying information or performing a service, such as a controlled purchase of drugs. This article also distinguishes between paid police informants and others who provide information to the police.
Although laws vary considerably from state to state, affiants applying for a search warrant must convince a judge that probable cause exists to believe a crime is being, has been or will occur; that the information in the warrant application is reliable and timely; that there is a fair probability that that the premises or person searched will yield the items sought; and that the items are reasonably related to criminal activity.
The Aguilar-Spinelli Test
For many years, the Aguilar-Spinelli test was the standard for determining whether informant information was reliable. In Aguilar v. Texas, 378 U.S. 643, 1964, and later in Spinelli v. United States, 393 U.S. 213, 1969, a judicial guideline was established by the U.S. Supreme Court for evaluating the validity of a search warrant based on information from a confidential, reliable informant. This became known as the two-pronged test, in which a magistrate had to be informed of the officer s reasons to support a conclusion that an informant was both reliable and credible. In Illinois v Gates, U.S. 213, the Supreme Court abandoned the two-pronged test in favor of a totality of circumstances approach, effectively mitigating the requirement of officers to independently establish the reliability of informant information. In Illinois v. Gates, the court moved toward a more traditional probable cause standard, where a judge determines whether the information supplied by the police provides probable cause to believe there s a fair probability that contraband or evidence of a crime will be found in a particular place.
Note: Gates is a federal constitutional requirement and doesn t prevent individual states from providing additional rights under their own statutes and requiring the more stringent Aguilar-Spinelli test. And because the goal of officers seeking search warrants is most often to obtain evidence of criminal activity, it seems to me that regardless whether the Aguilar-Spinelli test or Gates is used, we want the evidence admitted and the case to withstand judicial scrutiny. Following the guidelines, outlined in Aguilar-Spinelli is a good way to ensure this.
Key Elements in Establishing Informant Reliability
Investigators should take the following steps to achieve the totality of circumstances and thus probable cause under
Illinois v. Gates:
1. Corroborate as much of the informants information as possible;
2. Determine how, where, when and under what circumstances the informant obtained the information;
3. Explain (without citing specific cases and names) use of the informants information in past criminal cases that led to arrests, convictions, seizures, etc.;
4. Provide/reveal statements informants made; and
5. Identify the informant if it s safe to do so.
A Training Exercise
I use fictional scenarios to teach a variety of topics, such as probable case, exigent circumstances, search warrant application and establishing the credibility of informants. Students and practitioners are provided with the scenario and search warrant application forms. I act as a judge and either approve or reject the warrant. Copy the below scenario and circle or highlight what you believe should be placed in a search warrant application. Determine when you feel probable cause is established.
You are Detective John Smith and have been a member of the Anywhere Police Department (APD) for five years. You ve been assigned to the department s Vice and Narcotics Division for eight years and a police officer for 15 years. You have been teamed-up with Detective Beverly Brown, who is also assigned to Vice and Narcotics. Brown has been a member of the APD for four years and was recently promoted to detective.
Mr. Carlos Santiago (informant #3029) is a confidential, reliable informant who has provided information to you that you have used to obtain search and seizure warrants in the recent past. This informant has also made controlled purchases of narcotics under your supervision after being supplied money, which you properly obtained from the APD s undercover fund. During the recent past, information supplied by Santiago has resulted in the seizure of narcotics and controlled drugs, the arrest of persons possessing and selling narcotics and controlled drugs, and the conviction of many of those arrested.