“Confidential Informants – AKA The Snitch” – by Kirk Tarman, Criminal Defense Attorney, San Bernardino County CA

Confidential Informants-AKA “The Snitch”

In a previous article we looked at a couple of motions that could help out a criminal defendant’s case,  and now I’d like to focus on some scenarios that may call for other motions.

In previous articles, we touched on some aspects of a suppression motion, and glimpsed at other motions.  This article assumes that you have read these previous articles because it uses some of the terms and ideas from the previous articles. Though this article can be read independently of those articles, the reading of the previous articles will make reading this essay easier and will make the legal mumbo jumbo a little easier to understand.

Again, these articles are mere primers, and are very superficial, and each criminal case is different. Many attorneys have different outlooks and tactics, and this article is not meant to undermine those strategies. It is merely to give the reader a superficial understanding of the legal system, and give a bit of context to the criminal defendant.

This essay concerns the confidential informant aka the ‘CI’ aka the snitch. A confidential informant  is a person that is being used by the police to help them in their police investigation. Many times, the CI is a person that was arrested by those same police, and in return for a dismissal/charge reduction or money  are now helping the police officers.

A phenomenon that seem to be encountering more and more is that police officers are using these confidential informants as a basis for issuing search warrants, and in some cases as a basis to make an arrest.

As a defense attorney, and a cynic, it is my firm belief that most of these confidential informants are complete fabrications by the police, and the cops create the statements so that they can bypass the constitution, and take a shortcut to getting a search warrant issued, instead of accomplishing a prolonged investigation.

In the two scenarios that I see most commonly the snitch is either used to inform the cops of some illegal activity, or the snitch is used as a basis to get a search warrant. In either situation the defense may decide that they need to find out who that person is and what they know. Usually this means that the defense has to file a motion to disclose the identity of the informant.

Of the tow scenarios, he first scenario is not nearly as difficult to deal with as the second (and I’ll tell you why later). Now, if the CI is the only witness to criminal acts, then there is no problem, the prosecution has to reveal their identify, ‘cause how else can they prove their case at trial. But if the CI merely points the cops in the direction of illegal activities, then the cops and the prosecutor probably won’t want to reveal the informants identity.

Now the cool thing about the motion to reveal the identity of a CI is that if the judge tells the prosecutor to cough up the identity, and for whatever reason ( the CI doesn’t exist, or the cops want to protect the snitch) the prosecutor doesn’t produce  the information the case is DISMISSED! So it’s probably worth the effort to make a run at the motion.

The major reason that judges don’t grant the request for the CI’s identity is that the defense has failed to show that the “the informant is a material witness on the issue of guilt” or in other words the defense has to show that the CI has information that could help the defendant be found “not guilty”.  Seems easy, but many times the information that the defense has regarding the CI’s statements or knowledge is sketchy at best, and though the defense can make reasonable inferences regarding this issue, this can be a tricky issue.

The defense only has to make an “on its face” showing of this materiality and then usually the judge will request that the CI be brought in so that the judge can question the CI in chambers. Of course if there is no CI, then POOF! the case goes away (oh if only it was that easy!). If there is a CI the judge then evaluates what information the CI has and whether it could exonerate the defendant.

Understand that this line of reasoning does not allow the defense to make this motion if it is only relevant to attacking the warrant. It only applies if the CI is sought  to exonerate (not guilty/affirmative defense etc) the defendant.

Again, there are two primary scenarios where the cops use a snitch-1) As a “fingerpointer” or someone that tells them about possible criminal occurrences; or 2) as a basis for probable cause, and getting a search warrant.

The second scenario is a heck of a lot more difficult, because many times the police will seal the search warrant affidavit. Which basically means the defense doesn’t get a copy of the affidavit/probable cause statements. Therefore, the defense doesn’t know for sure if there is a CI, or what the CI said. Wow, so how can one argue that the CI has information that may exonerate the defendant (remember materiality is still necessary for the judge to order the CI’s identity revealed).

There are numerous options available, and I will just touch on a couple of the simpler ones.

A defendant  can merely file a motion to suppress the evidence (remember that one from the previous article), and say that since the defense  hasn’t received the search warrant or the probable cause statement, and implicitly that there isn’t one,  the presumption is that the search is illegal.

One can file a motion to unseal the search warrant, which may include a hodge-podge of the other options below. This motion can be difficult because usually the prosecutor, the cop, and the judge all step into the darkest corners of the courtroom (aka the judge’s chambers), sip some coffee, and the cop spins a tale of a snitch whose life would be put in jeopardy if his name were to be revealed, and that any information that was revealed would jeopardize his life. All the while the defendant AND HIS ATTORNEY, are waiting in the courtroom. Yup, even the defense attorney waits outside! There is nobody capable of yelling “Shenanigans!” to the cop’s dramatic tale of danger and mystery. Though, an intelligently drafted motion can definitely help, much of this motion is based upon the assumption that the judge can see through the officer’s exaggerated (fabricated?) goal of protecting his CI.

To show the necessity of most of these motions, defense needs to make a preliminary showing that the requested information is necessary, and to that end may request a hearing wherein the judge determines what disclosures are necessary, and how much to disclose.

Another related motion is to traverse the warrant (or to see if the statements made in the probable cause affidavit are false or reckless). This motion can be made whether the search warrant is sealed or not. If it’s sealed then this motion usually follows the motion to unseal the warrant, and the judge, the DA, and the cop, all decide whether there is any indications of a false or reckless statement made in the probable cause part of the search warrant. Again, usually no defense counsel is present.

If the search warrant isn‘t sealed, then the defense needs to cast some doubt on the credibility of the cop that made the probable cause statement, or on the existence of the CI or the reliability of that informant. If the defense accomplishes that, then the court will hold a hearing in his chambers (again no defense counsel).

So as one can see, whenever there is a confidential informant being used in a case, things become pretty complicated.  There a various flavors of motions that can be used to disclose the identity of the snitch, some are simple and some complex. The scariest aspect of these cases, is that in most scenarios, the defense attorney is cut out of the loop, which is very frustrating. But a complete and logical attack on these issues should hopefully  give the prosecution pause, and perhaps dislodge them from an unacceptable sentence, and at maximum cause a dismissal of the case.

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