Darren Chaker finds that when a Confidential Informant (CI) is used in connection with a criminal investigation, the court will look at several indicia of reliability when determining probable cause to issue a search or arrest warrant. The most common are:

 

  • Informant’s history of truthfulness shows reliability. See United States v. Goodson, 165 F.3d 610 (8th Cir. 1999) (reliability of a confidential informant can be established if the person has a history of providing law enforcement officials with truthful information).

 

  • Corroboration of information shows informant’s reliability. See United States v. Miner, 108 F.3d 967 (8th Cir. 1997) (investigating officer’s confirmation of confidential informant’s incriminating information provided probable cause for search warrant on defendant’s home); United States v. Fields, 72 F.3d 1200 (5th Cir 1996) (search warrant valid where informants’ information was corroborated by other informants and by police investigation). But see United States v. Clark, 31 F.3d 831 (9th Cir. 1994) (mere confirmation of static details in an anonymous tip is not ”corroboration”).

 

  • Personal observation by informant shows reliability. See United States v. Allen, 168 F.3d 293 (6th Cir. 1999); Lawmaster v. Ward, 125 F.3d 1341 (10th Cir. 1997) (affidavit based on informant’s personal observation of controlled substance) (affidavit based on informant’s observation of defendant transporting and firing machine gun).

 

  • Informant’s history of truthfulness shows reliability. See United States v. Goodson, 165 F.3d 610 (8th Cir. 1999) (reliability of a confidential informant can be established if the person has a history of providing law enforcement officials with truthful information).

 

The disclosure of the identity and location of informants is governed by Rovario v. United States, 353 U.S. 53 (1957). In Rovario, the Supreme Court affirmed the principle that the government has a privilege to withhold from disclosure the identity of persons who furnished information of violations of the law to officers charged with enforcement of that law. Id. at 59. The purpose of this privilege is “the furtherance and protection of the public interest in effective law enforcement.” Id. Rovario also stands for the proposition that this governmental privilege is limited, and that courts must engage in a balancing test to weigh the public’s interest in protecting the flow of information against a defendant’s right to prepare a defense for trial.

There are three factors which come into play for a court when engaging in the Rovario balancing test. A court must examine the extent of the informant’s participation in the criminal activity, the directness of the relationship between the defendant’s asserted defense and the probable testimony of the informant, and the government’s interest in non-disclosure. United States v. Gutierrez, 931 F.2d 1482, 1491 (11th Cir. 1991); United States v. Tenorio-Angel, 756 F.2d 1505, 1509 (11th Cir. 1985).

A defendant can tip the balance in this weighing process in his favor by showing that the informant played an active role in the criminal activity and that the informant’s testimony would sufficiently aid in establishing an asserted defense. United States v. McDonald, 935 F.2d 1212, 1217 (11th Cir. 1991). It is true that the defense must show that the informant’s testimony would sufficiently aid in establishing an asserted defense. United States v. Gutierrez, supra at 1491. However, if the informants are actual participants in the illegal activity, it is presumed that the defendant has met his burden of showing the need to have access to them and there is a duty by the government to reveal their identity. United States v. Tenorio-Angel, supra; United States v. Gutierrez, supra.

Last, Darren Chaker notes In the absence of reliability, it is common for the defense to file a motion to suppress evidence if the CI’s information was used as the backbone of probable cause to obtain a search warrant.

error: Content is protected !!