THE USE AND CONTROL OF INFORMANTS A PATROL OFFICER’S PRIMER

1. THE USE AND CONTROL OF INFORMANTSA PATROL OFFICER’S PRIMER Florida Department of Law Enforcement Florida Criminal Justice Executive Institute

2. THE USE AND CONTROL OF INFORMANTSA PATROL OFFICER’S PRIMER Product Development by David Brand, MPA Professionalism Program Mike Crews, Director

3. IntroductionGoals and Objectives Where do “confidential informants” come from? When responding to a crimes against persons call, and struggling to capture the basic information, officers occasionally observe a detective arrive at the scene, ask a few questions, leave, check with his or her sources and resurface at the station a few hours later with a suspect in tow. Is there someplace the officer can go to find informants or do they just appear? Were they passed on by someone else or do you have to develop your own? Most of all, can patrol officers have confidential informants as well?

4. Introduction Goals and Objectives The purpose of this course is to explain: • what a confidential informant is, • how they can be developed, • how they should be managed, and, most of all, • what the pitfalls can be.

5. What are confidential informants and what motivates them? It is generally accepted, within the law enforcement community, that there is a difference between a confidential informant and a source of information. A confidential informant can be defined as a non-law enforcement individual who, by reason of his or her familiarity or close association with criminals, supplies information about criminal activities (FFWC 2002, 3.1.1). A source of information, however, can be defined as someone who provides information solely as a result of legitimate routine access to information or records (U.S. Dept of Justice 2002, p. 3.).

6. What are confidential informantsand what motivates them? An informant’s motives are as old as human nature itself. One typology was developed over 40 years ago and appears to never change: Fear, by people who feel threatened by law enforcement officers or by other criminals.

7. What are confidential informantsand what motivates them? Revenge, from persons who want to get even, such as ex-spouses or former associates.

8. What are confidential informantsand what motivates them? Perversity, on the part of persons who are cop “wannabes” or who see themselves as secret agents. Ego, displayed by persons who need to feel that they are outwitting those they see as inferior to them.

9. What are confidential informantsand what motivates them? Money, from people who will do anything if enough money is offered. Repentance, from persons who want to leave their criminal past behind. (Cross & Harney 1960)

10. What are confidential informantsand what motivates them? From this typology, three basic types of informants can be classified for the patrol officer: the mercenary, the volunteer and the anonymous. The mercenary is, of course, the paid informant, and is usually cultivated, nurtured and, to a certain extent, protected by the controlling officer. The mercenary, whose ranks are usually composed of unsavory characters, can not only tell the controller about incidents that have already occurred but can advise of crimes that are about to be committed. Because of this, mercenary informants are considered to be very effective, and usually justify the continuous maintenance that they always require.

11. What are confidential informantsand what motivates them? The volunteer can be anyone. This type might volunteer information and, because he or she saw the results of previous efforts in the form of an arrest being made, contacts the officer again with additional information. Good citizen informants fall into this category. Volunteer informants are usually very responsive to Community Oriented Police patrols. The anonymous informant calls in information and, obviously, wants to keep his or her identity a secret. These can be citizens with good intent but some may also have more sinister motives such as revenge.

12. Developing Informants Informants and sources typically include people doing business around an area that criminal types frequent. They can be taxi drivers, hotel workers, bartenders, delivery employees, and occasionally even private investigators and bail bondsmen. The whole philosophy of community policing, which has become popular in law enforcement, creates good citizen, volunteer sources because the patrol officer is in direct, daily contact with the neighborhood that he or she serves. Whether the officer proactively recruits or the potential informant approaches the officer, the officer should attempt to assess the person’s motives and obtain enough information so that an analysis can be conducted.

13. Developing Informants The informant should never be mistreated or insulted; instead, attempt to encourage his or her continued dialogue by reinforcing any positive motivators that have been identified. When dealing with informants, whether a newly recruited person or one who has been used extensively in the past, never accept the information provided on face value without verifying it on each and every occasion. When establishing the credibility of information provided by an informant, consider it in the same way that you would any other information that you would develop probable cause from. In this circumstance, however, you will not be revealing your witness.

14. Developing Informants For example, a source may provide information that Joe Smith lives at a certain address, drives a red Ford, works at a particular job, frequents a particular area, and furthermore, that he stole two televisions from a particular store, sold one of the televisions to a certain individual for $100.00, and has the other television in his home. Then, in the course of the investigation, the officer determines that Joe Smith does exist and lives at the address that was provided. He owns a red Ford, works at the job that the informant described, and does, in fact, frequent a particular area. It is further determined that the described retail store did have two television sets stolen on the date provided by the informant.

15. Developing Informants The individual who reportedly bought one of the television sets is contacted. He turns over the stolen television and confirms that he gave Joe Smith $100.00 for it. By independently confirming all of the information that was provided, it becomes reasonable to assume that the last element, the other television being located in Joe Smith’s home, also is correct. Probable cause has just been developed to obtain a warrant to search for the stolen property.

16. Developing Informants When the confidential informant has provided truthful and accurate information on several occasions that has resulted in the successful conclusion of criminal investigations, the officer then can articulate in affidavits that he or she has personal knowledge about the informant’s past activity on behalf of law enforcement. It is at this point that a “reliable confidential informant” is born.

17. Legal Standards The standard that is required by the court to establish probable cause is the totality of circumstances test. The responsibility of the issuing judge is to make a practical decision after considering all of the circumstances set forth in the affidavit, including the “veracity” and the “basis of knowledge” of persons supplying the information, that there is a probability that contraband or evidence of a crime will be found in a particular place (Illinois v. Gates 1983).

18. Legal Standards In the past, two cases, Aguilar v. Texas (1964) and Spinelli v. U.S. (1969), established a “two prong test.” The first part of the “two prong test” required that the affiant establish the basis of knowledge by describing what the informant observed, when it was observed, how it was observed, who else was present (without revealing the identity of the informant), and why the informant knew that the observation was important.

19. Legal Standards The second part established the credibility of the informant. This credibility was established by attesting that the informant had previously given correct information. It could also be established, by corroboration by the affiant, that part of the information given this time is true, or demonstrated that the informant made a statement against his criminal interest, thereby admitting a crime himself when he provided the information or demonstrated that the information given was very detailed.

20. Legal Standards In Illinois v. Gates (1983), the court ruled that the two-prong test directed analysis into two largely independent channels: the informant’s veracity or reliability, and his or her basis of knowledge. There are persuasive arguments against according these two elements such independent status. Instead, they are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations. A deficiency in one may be compensated for, in determining the overall reliability of the information provided, by a strong showing regarding the other, or by some other indicia of reliability.

21. The Informant works for you; you don’t work for the Informant. The first step in controlling an informant is to document a Confidential Informant Profile. This file should contain, at a minimum, the informant’s name, alias, race, sex, date of birth, social security number, a description of any scars, tattoos or piercings, a copy of the NCIC check, active warrant check, administrative fingerprint cards, multiple angle photographs, and a videotape of the informant walking and talking.

22. The Informant works for you;you don’t work for the Informant. It is further suggested that periodic warrant checks be conducted. One of the most serious pitfalls of working with an informant involves the informant having an arrest warrant in another jurisdiction that the officer has no knowledge of.

23. The Informant works for you;you don’t work for the Informant. There also should be a Confidential Informant Acknowledgement form, signed by the informant, using the signature that will appear on receipts where he or she is paid cash for information. The rules that are established by the officer’s agency, some of which may be confidential to protect the informant, should be included in this acknowledgement. The informant should be thoroughly briefed on these rules and his or her acknowledgement witnessed by the appropriate authority within the officer’s agency. Remember, an informant may very well sue you if he or she in injured. Having documented proof that you explained the terms and conditions of the services that are being provided will help you defend your agency if you are sued.

24. The Informant works for you;you don’t work for the Informant. Informant files should be centrally controlled by an appropriate authority, and information concerning informants should be disseminated only on a need to know basis. Centrally controlling intelligence information on informants will ensure that an informant will not be giving the same information to more than one officer, which could place both officers, if nothing else, in an embarrassing situation. In a larger agency it could even result in two different officers obtaining a search warrant for the same crime, from two different magistrates, with neither officer realizing it.

25. The Informant works for you;you don’t work for the Informant. Aside from the legal problems that this could cause, a serious officer safety issue could be created. A control number should be assigned to the informant. These should not begin with the numeral 1, but should instead begin with higher numbers such as 2013 so that there is not an appearance that there are only two or three informants.

26. The Informant works for you;you don’t work for the Informant. The possibility of a court-ordered disclosure of an informant’s identity should be considered during each investigation. If this occurs, it may be necessary to request that the prosecutor dismiss the criminal case in order to protect the identity of the informant. Careful case management usually will preclude this from occurring.

27. The Informant works for you;you don’t work for the Informant. The second critical step involves the actual fieldcraft of working the informant. Prior to any planned contact with an informant, conduct an up-to-date check for outstanding arrest warrants and any current confidential informant entries that have been made in the informant’s profile log. If there are active arrest warrants, consultations must be made with a supervisor and the prosecutor to determine if the warrant should be served at the time of the encounter or later. Remember, an arrest warrant is an order of the court and should be treated as such.

28. The Informant works for you;you don’t work for the Informant. A male officer should never meet with a female informant alone. Likewise, a female officer should exercise extreme caution in meeting with a male informant. If it’s not feasible to have another officer present, have one monitor the meeting from a distance. If appropriate or necessary, have the handling officer wired and the meeting monitored by the second officer. Carefully document the meeting including notes on not only the information provided but the appearance and demeanor of the informant.

29. Controlled Buys Controlled buys involve investigations in which the informant is sent to purchase contraband so that a search warrant can be obtained at a later date. This method is used when law enforcement officers cannot or should not infiltrate the area where the contraband is being sold.

30. Controlled Buys Controlled buys always should be conducted under the direct control of the handling officers who have developed a strategy that avoids entrapment.

31. Controlled Buys The informant should first be instructed on what to do and, more importantly, what not to do. If drugs are going to be purchased, this should include a stern directive regarding not using any of the drugs before he or she gets back to the debriefing area.

32. Controlled Buys The informant should be further instructed to speak so that he or she can be heard on the wire and to count the money, that’s being given to the suspect, out loud. The informant should be given a code word, which changes each time the informant is used, so that he can let the monitoring officers know if he or she has encountered a situation where there is personal danger.

33. Controlled Buys Search the informant and remove any personal money that he or she has in their possession. This is so the officer can testify later that he/she knew the informant didn’t have any contraband or money in his or her possession. Search the informant’s vehicle if it’s not feasible to use a police vehicle for transportation.

34. Controlled Buys After the purchase, search the informant and any vehicle that he or she has used, using the same method as the pre-purchase search. Retrieve the contraband and any money that is left. Don’t pay the informant with any of the marked or recorded money. Obtain a statement from the informant, including a detailed description of the interior of the building, the suspect and any officer safety issues. Never discuss strategy or any future investigative activity with the informant. The informant may simply begin to fabricate and stylize the information that is provided around what he or she thinks the officer is looking for.

35. Controlled Buys Enter the contraband description, recordings and the informant’s statement into the profile log. Remember that informants usually are criminals too and, as such, cannot be trusted not to go back to the suspect and tell what just occurred. Also, informants, by their very nature, are unpredictable under stress and could react in an unexpected way when they are wearing a wire.

36. Always Use Caution An informant who has always provided reliable information sometimes can cause the officer to relax and not thoroughly investigate the information that is being provided. Generally, informants will, if given enough time, try to manipulate the officer in order to fulfill their own agenda. Also, consistent arrests of major criminals, in concert with positive news media coverage, can result in an officer’s upward mobility within the agency. Both of these circumstances can cloud the officer’s judgment in handling an informant.

37. Always Use Caution One example of poor discretion that the law enforcement community observed was the case of retired FBI Agent John Connolly. Agent Connolly was convicted in 2002 of tipping off informants to be charged in criminal cases. One of those informants, James “Whitey” Bulger, was placed on the FBI’s 10 Most Wanted list (Capitol Blue Hill, January 14, 2003). In either circumstance, the officer should no longer use the informant. A notation should be made in the Informant Profile log in case the informant approaches another officer offering to provide information in the future.

38. The 5 “C’s” for the use and control of Informants. While this CD course is not an all-inclusive text on the use and control of criminal informants, it can serve as a basic guide for the patrol officer who aspires to take his or her investigations to a higher level. In doing so, the officer should keep these five “C’s” in mind.

39. The 5 “C’s” for the use and control of Informants. • Communicate with your supervisor and associates so that you not only understand and comply with your agency policy but ensure officer safety as well.

40. The 5 “C’s”for the use and control of Informants. • Create informant profile documentation and an activity log for the informant.

41. The 5 “C’s”for the use and control of Informants. • Establish the informant’s credibility by thoroughly investigating the information that has been provided and corroborating it with information that is already known.

42. The 5 “C’s” for the use and control of Informants. • Control your informant by ensuring compliance with all agency policies and actively directing all of the informant’s activities.

43. The 5 “C’s” for the use and control of Informants. • Cancel the use of the informant when the information provided has reached a point of diminishing return.

44. References Aguilar v. Texas, 378 U.S. 108 (1964) Capitol Blue Hill News Service (2003, January 14). Using Crooks as Informants. Cross, J., & Harney, M. (1960). The Informer in Law Enforcement. Springfield: Charles Thomas. Florida Fish and Wildlife Conservation Commission. (2002). Division of Law Enforcement General Orders. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76L. Ed. 2d 527 (1983). Spinelli v. U.S. 393 U.S. 110 (1969)

45. References U.S. Department of Justice. (May 30, 2002). The Attorney General’s Guidelines Regarding the Use of Confidential Informants. Washington, D.C.: Government Printing Office.

46. Questions • An informant’s motives to disclose information include: (A) fear (B) Revenge (C) Ego (D) A, B & C • There are three basic types of informants: mercenary, volunteer and anonymous. (A) True (B) False • When dealing with an informant that you have used successfully numerous times in the past, you don’t need to verify the information the informant provides on each and every occasion. (A) True (B) False

47. Questions • When an informant has provided truthful and accurate information on several occasions in the past that have resulted in the successful conclusion of criminal investigations allowing the officer to articulate this fact in an affidavit, the informant is considered to be a “reliable confidential informant.” (A) True (B) False • The standard of proof that is required in court when using a confidential informant is: (A) the Aguilar two prong test (B) the Spinelli two prong test (C) the totality of circumstances test

48. Questions • The informant’s profile file should include: (A) the informant’s true name (B) social security number (C) an administrative fingerprint card (D) A, B & C • Periodic arrest warrant checks should be conducted on the informant: (A) True (B) False • The informant should be required to sign an acknowledgement form where rules have been established (A) True (B) False

49. Questions • Informant profile files should be: (A) maintained and kept by the officer (B) there is no need to keep informant files once credibility is established (C) kept in a central location where authorized personnel have access to them • The court can never order a disclosure of the informant’s true identity: (A) True (B) False • If it is discovered that an informant has an active arrest warrant just prior to being used for a controlled buy the officer should: (A) proceed with the controlled buy (B) check with a supervisor (C) consult with the prosecuting attorney or judge that issued the warrant prior to proceeding (D) both B & C

50. Questions • A male officer should always meet with a female informant alone: (A) True (B) False • A controlled buy, as defined in this course, involves an investigation where the informant lawfully purchases items from a store to test the store employee: (A) True (B) False • Controlled buys should only be attempted after the handling officers have developed a strategy that avoids entrapment: (A) True (B) False