A Confidential Informant (CI) is a person who, while acting under the direction and control of a law enforcement handler(s), sometimes plays a participatory role in a criminal investigation. Since CIs are typically known to be involved in criminal activity or are associated with criminals, they’re in the unique position of having the means to provide solid insider information that’s extremely useful to investigators. In exchange for their services, informants generally seek something of value, such as financial gain/cash payment, or a reduction or dismissal of pending criminal charges.
NOTE – Police officers do not have the authority to reduce or dismiss criminal charges. It is the prosecutor, or Court, who has the authority to do so.
Confidential Informants (CIs) are typically used to supply probable cause for the issuance of search warrants, or to justify an arrest. Therefore, it’s an important part of policing to seek and develop criminal intelligence through the use of confidential informants.
For their safety, informants highly prefer to remain anonymous. Protecting an informant’s anonymity can pose problems for prosecutors because the 6th Amendment’s Confrontation Clause guarantees criminal defendants the opportunity to face their accuser(s) in the case(s) against them, and to dispute the witnesses’ testimony. Therefore, it’s always best to build a criminal case on evidence that doesn’t solely rely on an informant’s contribution. However, many times cases are dependent on the evidence supplied by informants. More on protecting an informant’s anonymity in a moment.
When using confidential informants officers must consider:
- The risk that a CI could violate an individual’s rights.
- CIs are not trained law enforcement officers, legal authorities, etc. Therefore, they may, unknowingly, intrude upon privileged communications, which could lead to a compromised investigation.
- The character and motivation of the CI. Is he/she involved in the matter under investigation and is using his role as a CI to shift the blame.
- Has he/she proven to be reliable? Is there a means to verify information which he/she provides.
- There must be a means for police to control the CIs activities when he/she is acting on their behalf.
- Is it possible to ensure that the CI’s actions are consistent with his instructions and the law?
- Is the value of the information provided by the informant worth the reward sought by the CI?
- When a CI acts according to instructions provided by the police, then the CI’s actions are governed by the same laws and standards was if they were a police officer. Simply put, in certain circumstances they’re an agent of the police.
The business of utilizing CIs should be well-documented. In my former departments, each CI submitted biographical and other background information, such as criminal history, known associates, etc. Also included in their file was a current photo of the CI, list of vehicles driven/owned, and a signed copy of the “Informant Conduct Agreement.”
If the CI was on probation or parole, the detective/officer was responsible for notifying the appropriate probation or parole officer to alert them of the CI’s agreement to help the police.
The CI’s file was sealed and maintained in a secure location. To ensure anonymity, each CI was assigned a number and alias that was to be used on all records in place of their actual names. Numbers were used to identify CIs in all reports and paperwork, including affidavits for search warrants.
Itemized records were kept for all expenditures such as “buy money” and payments made to CIs. CIs were required to sign receipts/distribution of funds when receiving payment for services.
Buy money is cash provided by the handler to CIs that’s used to purchase evidentiary items , such as illegal drugs. These purchases are called “controlled buys,” and they go something like this:
- The CI meets with his handler and says, “Rocky’s holding a few kilos of coke and said he could let me have one for 28.” The handler calls her supervisor who agrees to the deal. He, along with a second supervisor who serves as a witness, prepares the necessary paperwork and then pulls the $28,000 from the safe. The detective signs for the cash and tells he informant to call the suspect to arrange the drug sale. The call is recorded on video and audio.
- Cash used for drug deals is marked, meaning serial numbers are recorded. The reason police use currency with pre-recorded serial numbers is to prove that the money in the seller’s pocket at the time of his arrest later in the day is the same money police gave to the CI.
- Detectives often equip the informant with a body wire to record audio of the transaction. Sometimes a covert camera is used to video the buy. Covert cameras can be disguised as practically any object imaginable, from a ball cap, to a pen, to a button on a shirt, and everything between. The list is nearly limitless.
- An undercover officer may accompany the CI to the meeting with the dealer. Most of the time, though, the CI is on his own. However, officers often maintain surveillance of the area from unmarked vehicles, such as fake utility vans, delivery vehicles, etc. Undercover agents might be nearby in the event something goes wrong, or if the intention is to raid the place after the sale is complete.
- The deal is done, and if all goes well, and it should, the informant meets detectives to hand over the recently purchase drugs. The officers again conduct searches of the CI and his vehicle.
- If the suspect is arrested immediately after the sale, police search him to confirm that any cash discovered includes the marked money.
To protect the CI’s identity, it’s best to wait until several transactions by a variety of “customers” are witnessed at the drug house before raiding the place.
As mentioned above, when all is a said and done, the drug seller will have his day in court, and it is the 6th Amendment that guarantees criminal defendants the opportunity to face their accuser(s). Meaning that defendants have the right to confront the folks who said they committed an illegal act, such as selling cocaine.
In the case of a CI, though, there are protections in place to help preserve their anonymity.
“The identity of one providing criminal information to the prosecution is generally considered privileged, to further effective public law enforcement. Webb v. Commonwealth, 137 Va. 833, 120 S.E. 155 (1923); Roviaro v. united states, 353 U.S. 53 (1957). A defendant’s need to learn the identity of the CI must be weighed by the court against the government’s need to maintain confidentiality in the particular case, taking into account the crime charged, the relevance of the CI’s prospective testimony, and other factors. It is a case by case analysis.” ~ Commonwealth’s Attorney’s Drug Prosecution Manual
Prosecutors typically have privilege against disclosure of a CI’s identity. Still, defense attorney’s know that pressing again and again for the identity will sometimes force a prosecutor to nolle prosequi the case (basically, drop the charges) rather than “give up” the CI.’s identity. Hey, it works, sometimes, if the judge leans toward the side of the defense.
I once had a case where I used a couple of CIs to purchase cocaine from several dealers. One of those dealers was a major player who supplied large quantities of cocaine to other dealers.
She was convicted of distribution of cocaine and sentenced to serve 15 years in prison. At her sentencing hearing I was called to testify about her extensive history of maintaining a significant drug operation that included buying, transporting and selling large quantities of cocaine and other drugs. Part of my testimony included information obtained from reliable confidential informants.
On appeal, her attorneys demanded that I provide the names of the informants. The appellate court ruled that disclosure of their identities was not required because the informants were not participants in the events which led to the defendant’s convictions, but were only witnesses to previous criminal activities.
Her conviction was constitutional under the 5th, 6th, and 14th Amendments, and the identities of the informants was not required. Conviction Affirmed.
When uses CIs in criminal cases, it’s important to understand their motivation for wanting to help police. Knowing why they do what they do helps police better manage and understand their vulnerabilities. “To address this, Ian Stanier and Jordan Nunan of CREST have developed a new mnemonic, FIREPLACES: Financial, Ideology, Revenge, Excitement, Protection, Lifestyle, Access, Coercion, Ego, and Sentence.
F — Financial: Includes the receipt of monetary reward or in-kind payment (i.e. payment of rent, tools, vehicles, phones, clothes).
I — Ideology / Moral: Information is provided about a person or group who possess ideas or beliefs at odds with those held by the informant (i.e. drug dealing or terrorist tactics).
R — Revenge: Information is provided to harm or place another in a detrimental position (i.e. arrested) in response to a previous injury or perceived wrongdoing (i.e. as a result of an acrimonious breakup of a personal or criminal relationship).
E — Excitement: Undertaking the role of an informant offers the individual a feeling of excitement, eagerness, or arousal.
P — Protection: Passing information to authorities to protect the informant from persons or networks threatening them, their criminal enterprises, or family. The cooperation aims to provide information that encourages police action to diminish this threat.
L — Lifestyle: The role played by the informant provides the individual with an enhanced lifestyle, either as a consequence of deployments and/or payments.
A — Access: The informant relationship provides an opportunity for counter-penetration to identify agency interest in offending networks and associates. This may include deliberate infiltration by criminals to understand the nature of police tasking and levels of interest in their or their competitor’s criminal enterprises.
C — Coercion: Information is provided to avoid carrying out a threat made by an official (i.e. the threat of deportation; being prevented access to or from a country; or blackmail after being caught in compromising situations).
E — Ego: Undertaking the role of an informant enhances the individual’s self-esteem or self-importance. Where this ego starts to impact the veracity of provided information, these are sometimes colloquially known as ‘Walter-Mitty’ informants.
S — Sentence: Information is shared to mitigate the length of a likely forthcoming prison sentence or release from detention.