Mon. Oct 18th, 2021

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.

By Darren Chaker

For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, let me write a bit: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to LumensDataBase.org. Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.

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