By Kirk Tarman, Criminal Defense Attorney in San Bernardino County, California. Originally published in 2007 and reposted with permission from Crime, Justice and America magazine
A confidential informant is a person used by the police to help them in their investigation – often, somebody who was arrested by those same police and is now helping them in return for money or a dismissal or reduction of the charges against them.
The two most common scenarios are the snitch informing the cops of some illegal activity, and the snitch’s statement being used as a basis for the police to get a search warrant. In either situation, the defense may decide that they need to find out whom that person is, and what they know. Usually, this means filing a motion to disclose the identity of the informant.
As a defense attorney and a cynic, though, it is my firm belief that most of these “confidential informants” are complete fabrications by the police, and the cops create their statements in order to bypass the Constitution and take a shortcut to getting a search warrant issued, instead of conducting a thorough investigation.
If the CI is the only witness to criminal acts, then there is no problem: The prosecution has to reveal his identity in order to prove their case at trial. But if the CI merely points the cops in the direction of illegal activities, then the cops and the prosecutor probably won’t want to reveal his identity.
Now the cool thing about the motion to reveal the identity of a CI is that if the judge does tell the prosecutor to cough up the identity, and for whatever reason (the CI doesn’t exist, or the cops want to protect the snitch) the prosecutor doesn’t produce the information, the case is dismissed! So it’s probably worth the effort to make a run at the motion.
The major reason a judge will refuse the request for the CI’s identity is the defense’s failure to show that the informant is a material witness on the issue of guilt — in other words, the defense has to show that the CI has information that could help exonerate the defendant or offer the defendant an affirmative defense. The request will not be granted if the defense is only seeking to attack the warrant.
The problem is, the information that the defense has regarding the CI’s statements or knowledge is often sketchy at best; and though the defense can make reasonable inferences regarding this issue, this can be a tricky issue.
The defense only has to make an “on its face” showing of this materiality and then usually the judge will request that the CI be brought in so that the judge can question the CI in chambers. Of course if there is no CI, then poof! the case goes away. If there is a CI, the judge then evaluates what information the CI has and whether it could exonerate the defendant.
The second scenario – the police using a CI a basis for probable cause, and getting a search warrant — is a heck of a lot more difficult, because many times the police will seal the search warrant affidavit, so the defense doesn’t get a copy of the affidavit/probable cause statements. If the defense doesn’t know for sure what the CI said, or even if there is a CI, how can one argue that the CI has information that may exonerate the defendant?
When a defense attorney seeks to suppress evidence in a criminal case, this means he wants to keep some of the evidence against his client from being used against him. This evidence can include drugs, weapons, DNA, stolen goods, and even witnesses’ observations. Suppression of evidence can, of course dramatically weaken the prosecution’s case.
California Penal Code §1538.5:
(a)(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds:
(A) The search or seizure without a warrant was unreasonable.
(B) The search or seizure with a warrant was unreasonable because any of the following apply:
(i) The warrant is insufficient on its face.
(ii) The property or evidence obtained is not that described in the warrant.
(iii) There was not probable cause for the issuance of the warrant.
(iv) The method of execution of the warrant violated federal or state constitutional standards.
(v) There was any other violation of federal or state constitutional standards.
These are some of the options:
A defendant can file a motion to suppress the evidence, arguing that since the defense hasn’t received the search warrant or probable cause statement, they believe there isn’t one, and therefore the search is illegal.
The defense can file a motion to unseal the search warrant. This motion can be difficult because usually the prosecutor, the cop, and the judge all step into the darkest corners of the courtroom (aka the judge’s chambers) and sip some coffee, while the cop spins a tale of a snitch whose life would be put in jeopardy if his name were to be revealed. All the while the defendant and his attorney, are waiting in the courtroom. Yup, even the defense attorney waits outside! There is nobody capable of yelling “Shenanigans!” to the cop’s dramatic tale of danger and mystery. Though an intelligently drafted motion can definitely help, much of this motion is based upon the assumption that the judge can see through the officer’s exaggerated (fabricated?) goal of protecting his CI.
Another related motion is to traverse the warrant (or to see if the statements made in the probable cause affidavit are false or reckless). This motion can be made whether the search warrant is sealed or not. If it’s sealed then this motion usually follows the motion to unseal the warrant, and the judge, the DA, and the cop, all decide whether there is any indications of a false or reckless statement made in the probable cause part of the search warrant. Again, usually no defense counsel is present.
If the search warrant isn‘t sealed, then the defense needs to cast some doubt on the credibility of the cop who made the probable cause statement, or on the existence of the CI or the reliability of that informant. If the defense accomplishes that, then the court will hold a hearing in his chambers (again no defense counsel).
To show the necessity of most of these motions, the defense needs to make a preliminary showing that the requested information is necessary, and to that end may request a hearing wherein the judge determines what disclosures are necessary, and how much to disclose.
Whenever a confidential informant is being used in a case, things become pretty complicated. There are various flavors of motions that can be used to disclose the identity of the snitch, some simple and some complex. The scariest and most frustrating aspect is that in most scenarios, the defense attorney is cut out of the loop. But a complete and logical attack on these issues should hopefully give the prosecution pause, and perhaps dislodge them from the demand for an unacceptable sentence, and at best cause a dismissal of the case.
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