Confidential Informants

1. Confidential Informants

2. “Courts have countenanced the use of informers from time immemorial; in cases of conspiracy, or in other cases when the crime consists of preparing for another crime, it is usually necessary to rely on them or upon accomplices because the criminals will almost certainly proceed covertly.” Judge Learned Hand, US v. Dennis

4. REESMAN GUIDELINES • (State v. Reesman, 2000 MT 243, 301 Mont. 408, 10 P.3d 83.) • Is the Informant anonymous? • Is the Informant known? • Is the Informant reliable?

5. Step 1 - Is the Informant anonymous, i.e. is his/her identity not known to law enforcement? Independent investigation is required to corroborate Informant’s information when the Informant is anonymous.

6. Step 2 – Is the Informant known by law enforcement? Determine the basis of informant’s knowledge if the Informant is known. • Personal observation of criminal activity – not hearsay. • Provide sufficient facts to support personal observations. For example, describe interior of the house, details, where is grow operation located, etc. • If no personal observation of criminal activity, independent corroboration is required.

7. Step 3 - Is the Informant reliable? Considerations: • Is he/she a Confidential Informant? • Did he/she make an admission against interest? • Is he/she a Concerned Citizen?

8. The Confidential Informant • The Informant must have provided reliable and accurate information to officers in the past to serve as a basis for probable cause without further corroboration. • A sworn statement by a law enforcement officer that the informant has been reliable and has provided accurate information on other occasions is sufficient to establish that the informant is reliable.

9. Admission Against Interest Further corroboration is unnecessary if the Informant makes an unequivocal admission against interest.

10. Concerned Citizen Was the Informant motivated by good citizenship? Presumed reliable and such reliability is generally shown by the nature of the circumstances under which the incriminating information became known.

11. Nelson’s opinion in Reesman establishes that “corroboration” or “further investigation” infers independent police work of some kind. However, Barnaby overruled Reesman on this point. The Barnaby decision objected to the notion that independent police work was the only method of corroboration. What constitutes independent corroboration or investigation?

12. Probable Cause in warrant Independent police corroboration still represents a key element in determining whether probable cause exists to issue a warrant.

13. Examples of independent corroboration/investigation • Investigative subpoena for power records (marijuana grow) • Criminal history records check for suspect and co-conspirators • Property ownership verification • Rental information • Address verification and property description • Photo identification of suspect by informant • Trash pull • Surveillance of premises and/or suspects in the community • Tracker warrant • Wire warrant

14. Example of a CI Search Warrant Affidavit

15. Application 1 included the following information from citizen informants which is recited here verbatim: 1. On December 30th, 2010 your Affiant received information from Dillon Johnson, a confidential informant, Dillon stated that Jennifer had a child with Michael Wagner. Dillon also stated that Jennifer smoke [sic] marijuana till [sic] she became pregnant. 2. On June 28th, 2010 you[r] Affiant received information from Mark Wagner Sr. Mark stated that his son, Michael Wagner, pays Jennifer Birkoski $500 a month in child support. Mark went on to state that since Michael has been paying child support to Jennifer, Jennifer has been selling and using drugs out of her house.

16. 3. On September 8th, 2010 your Affiant received information from Deputy Lucas Strommen. Deputy Strommen stated that he had received information from Carrie Gartner, who at the time was an inmate in the Valley County Detention Center. Deputy Strommen stated that Carrie said the [sic] Jennifer Birkoski had been arrested and placed in a cell with her (Carrie). Carrie stated that Jennifer hangs out with Lael Marchione and Elissa Stingley, (both are known drug users to your Affiant). Jennifer told Carrie that Jory Cook "shoots up." Jennifer also told Carrie that when Jory Cook lived with her she found hypodermic needles laying around the house that Jory had used to shoot up crack. Carrie stated Jennifer told her that the prescription morphine pills that she was arrested for belonged to her father. Jennifer told Carrie that she could introduce Carrie to Joe Garcia, who sells prescription pills as well. Carrie stated that on a[n] earlier separate occasion she had once overheard Jennifer Birkoski, Jory Cook, and Silver Tihista talking about shooting up crack in the shed on her property.

17. 4. On September 14th, 2010, your Affiant received the following information from Carrie Gartner, who at this time was working under your Affiant's direction as a confidential informant. Carrie stated that on the late evening of September 14th, 2010, Carrie went to Jennifer's residence located at 431 4th Avenue South in Glasgow, Montana. Jennifer told Carrie that she can sell her father's prescritpion morphine pills tomorrow (9/15/2010) to Carrie. Jennifer stated that she works at Hot Shots from 9am-5pm and told Carrie to stop by. Carrie stated Jennifer then showed her a crack pipe that Jennifer called a "Luka." Jennifer went into another room to retrieve the pipe and pulled it out of a Crown Royal bag. Jennifer said that she got it from "her boy." Jennifer stated that she was excited to use the pipe on Friday. Jennifer then went on to tell her that "her boy"is coming on Friday (9/17/2010) with some crystal meth. jennifer stated that this meth was very high quality and better than the meth that Elissa Stingley was buying from Lael Marchione for Elissa's friend Greg "Bird dog." Jennifer stated that she will sell Carrie a gram 91) of crystal meth for one hundred ($100) dollars. Jennifer stated that she normally sells one (1) gram of crystal meth for one hundred and fifty ($150.00) dollars. Jennifer stated that she would be getting enough crystal meth from "her boy" to sell for a while and enough for her own....use to last her three (3) days straight. Jennifer stated that she had to previously cut off (no longer sell to) Jory Cook at one point because he was smoking so often that he was getting crazy around Jennifer. Jennifer also told Carrie that she would get a hold of Joe Garcia who would sell her Adderall prescription pills.

19. KEEPING CONFIDENTIAL INFORMANTS CONFIDENTIAL • Pursuant to Rule 502, MRE, the State has a privilege to refuse to disclose the identity of an informant. The exceptions to this privilege are: 1) where there has been voluntary disclosure, 2) where the informant is a witness for the State, or 3) where a court finds that an informant should be required to give testimony relevant to an issue in a pending case. • The Commission Comments indicate that the Rule was adopted to specifically recognize the government's privilege in protecting informants’ identities. The comments declared that the purpose of the privilege was "...the furtherance and protection of the public interest in effective law enforcement...The protection given the informer by the privilege is therefore incidental, for it’s only meant to encourage citizens to communicate information about the commission of crimes..." • Working in conjunction with Rule 502, MRE, is Mont. Code Ann. § 46-15-324(3), which provides: • Disclosure of the existence of an informant or the identity of an informant who will not be called to testify is not required if: • (a) disclosure would result in substantial risk to the informant or to the informant's operational effectiveness; and • (b) the failure to disclose will not infringe the constitutional rights of the accused. • It is important to get your detective to testify about the risk to the informant and/or the informant’s future ability to provide vital information. • Below, is a Judge’s synopsis of testimony given by a Drug Task Force Officer during a hearing on whether or not the CI’s identity must be disclosed.

20. Officer Hebert stated that 95% of the drug cases that are investigated by the Drug Task Force use an informant in some capacity. He further said that from his experience, the drug community is fairly tight knit, and that some individuals with experience in the community are willing to coooperate with law enforcement, but that if their identity is disclosed, such cooperation will dry up and hamper their ability to investigate drug trafficking. Individuals would no longer cooperate with law enforcement because they would be worried about repercussions for themselves or their families. He stated that in his experience, defendants will often claim to know the identity of the CI as a method of fishing to see if he or she is correct in their supposition of the CI’s identity. He further stated that the particular informant in this case had received threats, but that he could not attribute those threats to the Defendant. On cross examination, the Detective admitted that the CI had driven with the Defendant in the CI’s car to the drug transaction, and that the Defendant had been photographed in the CI’s car. With regard to § 46-15-324(3)(b): whether or not the lack of disclosure infringes on the constitutional rights of the accused – keep in mind that the burden is on the defense to establish the need for the CI’s identity. Whether or not the identity of the informant must be disclosed is a matter of both statutory and case law interpretation. In 1957, the United States Supreme Court recognized the informer’s privilege and established a balancing test between the need for disclosure to the defense versus the need for confidentiality in Roviaro v. United States, 353 U.S. 53 (1957). The Roviaro test

21. was adopted by Montana in State ex rel. Offerdahl v. District Court, 156 Mont. 432, 481 P.2d 338 (1971). • Defense attorneys cite Roviaro for the premise that the State must disclose the identity of a CI if the CI participated in the transaction with the defendant. • However, case law has evolved significantly since Roviaro. • Ten years after Roviaro was decided, the U.S. Supreme Court held that the prosecution was not required to disclose the identity of an informant that had provided agents with information that formed the basis for a search warrant. McCray v. Illinois, 386 U.S. 300 (U.S. 1967). More importantly, the Court acknowledged the flexibility of the balancing test. “What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer's identity even in formulating evidentiary rules for federal criminal trials.” McCray v. Illinois, 386 U.S. 300, at 311. • In McCray, the Court further commented on the government’s privilege: • What Illinois and her sister States have done is no more than recognize a well-established testimonial privilege, long familiar to the law of evidence. Professor Wigmore, not known as an enthusiastic advocate of testimonial privileges generally, has described that privilege in these words:"A genuine privilege, on . . . fundamental principle . . . , must be recognized for the identity of persons supplying the government with information concerning the commission of crimes. Communications of this kind ought to receive encouragement. They are discouraged if the informer's identity is disclosed. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary reward, he will usually condition his cooperation on an assurance of anonymity -- to protect himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him. The government also has an interest in nondisclosure of the identity of its informers. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities. Revelation of the dual role played by such persons ends their usefulness to the government and discourages others

22. McLeod, (1987) 227 Mont. 482 740 P.2d 672, quoting with approval, United States v. Kerris (11th Cir. 1984), 748 F.2d 610, 614. • In State v. Babella, the Montana Supreme Court affirmed the principle that the burden is on the defendant and that mere speculation is insufficient. “In this balancing test the burden is on the defendant to show the need for disclosure, and this need must be one which overrides the government's interest. Mere speculation will not suffice.” State v. Babella, (1989) 237 Mont. 311, at 316, 772 P.2d 875, citing United States v. Prueitt, (9th Cir. 1976), 540 F.2d 995, 1003-04. • The Babella Court recognized the danger in allowing defendants unfettered access to informants. “As we stated in State v. Sykes, allowing such a routine challenge as that presented by defendant would hamstring the effective operation of law enforcement agencies.” Babella, 237 Mont. at 315. • In State v. Ayers, the Montana Supreme Court re-iterated that, “In this balancing test the burden is on the defendant to show the need for disclosure, and this need must be one which overrides the government’s interest. Mere speculation will not suffice.” State v. Ayers, 2003 MT 114, at ¶ 55, 315 Mont. 395, 68 P.3d 768, citing State v. Campbell, (1992), 254 Mont. 425, 838 P.2d 427. (Emphasis in Campbell.)