By Dr. Larry F. Jetmore

Reprinted from LawOfficer.com

 My October column dealt with confidential, reliable informants. Along with a model policy and procedure for department personnel using informants, the article also provided information on the use and audit of department undercover funds, and some practical suggestions on how to recruit informants.

This article deals with establishing the reliability of informant information for use in securing arrest and search-and-seizure warrants. For the purposes of this article, a confidential informant is a person formally registered and compensated by the department for supplying information or performing a service, such as a controlled purchase of drugs. This article also distinguishes between paid police informants and others who provide information to the police.

Although laws vary considerably from state to state, affiants applying for a search warrant must convince a judge that probable cause exists to believe a crime is being, has been or will occur; that the information in the warrant application is reliable and timely; that there is a fair probability that that the premises or person searched will yield the items sought; and that the items are reasonably related to criminal activity.

The Aguilar-Spinelli Test

For many years, the Aguilar-Spinelli test was the standard for determining whether informant information was reliable. In Aguilar v. Texas, 378 U.S. 643, 1964, and later in Spinelli v. United States, 393 U.S. 213, 1969, a judicial guideline was established by the U.S. Supreme Court for evaluating the validity of a search warrant based on information from a confidential, reliable informant. This became known as the two-pronged test, in which a magistrate had to be informed of the officer s reasons to support a conclusion that an informant was both reliable and credible. In Illinois v Gates, U.S. 213, the Supreme Court abandoned the two-pronged test in favor of a totality of circumstances approach, effectively mitigating the requirement of officers to independently establish the reliability of informant information. In Illinois v. Gates, the court moved toward a more traditional probable cause standard, where a judge determines whether the information supplied by the police provides probable cause to believe there s a fair probability that contraband or evidence of a crime will be found in a particular place.

Note: Gates is a federal constitutional requirement and doesn t prevent individual states from providing additional rights under their own statutes and requiring the more stringent Aguilar-Spinelli test. And because the goal of officers seeking search warrants is most often to obtain evidence of criminal activity, it seems to me that regardless whether the Aguilar-Spinelli test or Gates is used, we want the evidence admitted and the case to withstand judicial scrutiny. Following the guidelines, outlined in Aguilar-Spinelli is a good way to ensure this.

Key Elements in Establishing Informant Reliability

Investigators should take the following steps to achieve the totality of circumstances and thus probable cause under

Illinois v. Gates:

1. Corroborate as much of the informants information as possible;

2. Determine how, where, when and under what circumstances the informant obtained the information;

3. Explain (without citing specific cases and names) use of the informants information in past criminal cases that led to arrests, convictions, seizures, etc.;

4. Provide/reveal statements informants made; and

5. Identify the informant if it s safe to do so.

A Training Exercise

I use fictional scenarios to teach a variety of topics, such as probable case, exigent circumstances, search warrant application and establishing the credibility of informants. Students and practitioners are provided with the scenario and search warrant application forms. I act as a judge and either approve or reject the warrant. Copy the below scenario and circle or highlight what you believe should be placed in a search warrant application. Determine when you feel probable cause is established.

Background Information

You are Detective John Smith and have been a member of the Anywhere Police Department (APD) for five years. You ve been assigned to the department s Vice and Narcotics Division for eight years and a police officer for 15 years. You have been teamed-up with Detective Beverly Brown, who is also assigned to Vice and Narcotics. Brown has been a member of the APD for four years and was recently promoted to detective.

The Informant

Mr. Carlos Santiago (informant #3029) is a confidential, reliable informant who has provided information to you that you have used to obtain search and seizure warrants in the recent past. This informant has also made controlled purchases of narcotics under your supervision after being supplied money, which you properly obtained from the APD s undercover fund. During the recent past, information supplied by Santiago has resulted in the seizure of narcotics and controlled drugs, the arrest of persons possessing and selling narcotics and controlled drugs, and the conviction of many of those arrested.

The Situation

On Nov. 15, you and Detective Brown are on duty working from 0800 - 1600 hrs. At 0915 hrs, you receive a telephone call from Santiago. He tells you he has information that a large supply of cocaine is due to arrive in Anywhere from New York City late this afternoon. Further, a known drug dealer, Felix Bowman, left for New York City early this morning from his home located at 227 Merrow Street in Anywhere with a large sum of money to meet with his contact in New York City to purchase two kilos of cocaine. Santiago also informs you that Bowman was accompanied to New York City by one Hector Gonzales, and that Bowman and Gonzales were seen leaving for New York by the informant with Bowman driving a 2002 Chevrolet bearing CT. Reg #JLT-149. Santiago tells you that cocaine will be brought to Bowman s cousin s apartment (Dolores Domingo) located at 129 Bellevue Street, Apartment 4D, in Anywhere. Santiago describes Gonzales as a Hispanic male, 5'6" tall, weighing 150 lbs., with medium-length brown hair and missing the thumb on his left hand.

Facts

1. A check with the motor vehicle department reveals that CT Reg #JLT-149 is registered to Dolores Domingo of 129 Bellevue Street, Apartment 4D, in Anywhere. The car is a 2002 Chevrolet, four door, color red.

2. A check with the local light company indicates Domingo pays the electric bill at 129 Bellevue Street, Apartment 4D.

3. Detectives Smith and Brown establish surveillance from an abandoned building adjacent to and with a clear view of all approaches to 129 Bellevue Street. The surveillance began at 1000 hrs on Nov. 15. At 1400 hrs, they observe a 2002 Chevrolet, four door, color red, CT. Reg #JLT-149, occupied by two Hispanic males, pull into the parking lot in the rear of 129 Bellevue Street. From a police department photograph, Smith identified the driver of the vehicle as Bowman. The other occupant of the vehicle is unknown to either detective, but based on the informant s description, they think it s Gonzales. Both men are observed to exit the vehicle, look cautiously around and enter the front door of 129 Bellevue Street. Bowman is carrying a black gym bag with the word Nike on the side.

4. At 1430 hrs, Detective Smith met with informant Santiago and supplied him with a $20 bill from the APD undercover fund, serial number H75149365, in order to make a controlled buy of narcotics from 129 Bellevue Street, Apartment 4D. The detectives observed the informant enter the front of 129 Bellevue Street at 1440 hrs and exit the front of the building at 1450 hrs. At 1500 hrs, Smith and Brown met with the informant, who turned over to Smith a small glassine bag containing a white powder.

5. Brown performs a field test on the substance from the bag and receives a positive reaction for cocaine.

6. Informant Santiago informs Smith and Brown that he went to 129 Bellevue Street, Apartment 4D and knocked on the door. A woman opened the door and said her name was Dolores. Santiago asked if he could get some, and she told him to wait in the hall. A few minutes later, Bowman came to the door. Santiago purchased the glassine bag with suspected cocaine in it from Bowman in exchange for the $20 bill Smith had given him.

7. 129 Bellevue Street. Apartment 4D is located within a city housing project. A check with the housing department by Brown revealed the apartment is rented to Dolores Domingo. It s a brick building consisting of apartments on five floors with the number 129 painted in black letters over the front entrance. A check of APD records by Smith revealed that a search warrant was served at 129 Bellevue Street, Apartment 4D on Oct 20, and 53 glassine bags of cocaine were seized from the apartment. Domingo was arrested for possession of the drugs and is currently out on bond.

8. Smith further checks police department arrest records, which reveal Domingo s birth date (5/11/70) and that she is a Hispanic female, 5'2'' tall and weighs 110 lbs. Arrest records indicate Bowman s date of birth is 7/4/72 and that he is a Hispanic male, 5'7" and 180 lbs. Bowman was arrested by the APD on Oct. 20 for illegal possession of a narcotic substance and is currently out on bond awaiting trail.

Probable Cause?

How much of the information contained in the scenario do you think is needed to establish probable cause that a crime is taking place, and evidence of that crime is located in a specific location? Keep in mind, the court can require the disclosure of the identity of an informant if it believes such disclosure is necessary to support the truthfulness of the officers affidavit. In most states, such disclosure isn t required if the officers show the information is credible and the informant's information reliable.