M Warrants Affidavits and Informants in the Law of Search

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




    Florida Department of Law Enforcement
   Florida Criminal Justice Executive Institute
 THE USE AND CONTROL OF INFORMANTS
      A PATROL OFFICER’S PRIMER




Product Development by David Brand, MPA
Professionalism Program Mike Crews, Director
                           Introduction
                        Goals 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?
                      Introduction
                   Goals and Objectives

The purpose of this course is to explain:
1.  what a confidential informant is,
2.  how they can be developed,
3.  how they should be managed, and, most of all,
4.  what the pitfalls can be.
             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.).
            What are confidential informants
              and 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.
            What are confidential informants
              and what motivates them?

Revenge, from persons who want to get even, such as ex-spouses
  or former associates.
            What are confidential informants
              and 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.
            What are confidential informants
              and 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)
               What are confidential informants
                 and 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.
              What are confidential informants
                and 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.
                       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.
                  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.
                    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.
                   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.
                   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.
                        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).
                        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.
                       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.
                        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.
              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.
              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.
                 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.
                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.
                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.
              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.
                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.
              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.
                      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.
                       Controlled Buys

Controlled buys always should
  be conducted under the
  direct control of the handling
  officers who have developed
  a strategy that avoids
  entrapment.
                      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.
                       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.
                           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.
                          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.
                       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.
                     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.
                     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.
                       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.
                      The 5 “C’s”
         for the use and control of Informants.

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

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

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

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

5.   Cancel the use of the informant when the information
     provided has reached a point of diminishing return.
                          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)
                          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.
                           Questions

1.   An informant’s motives to disclose information include: (A)
     fear (B) Revenge (C) Ego (D) A, B & C
2.   There are three basic types of informants: mercenary,
     volunteer and anonymous. (A) True (B) False
3.   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
                            Questions

4.   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
5.   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
                           Questions

6.   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
7.   Periodic arrest warrant checks should be conducted on the
     informant: (A) True (B) False
8.   The informant should be required to sign an
     acknowledgement form where rules have been established (A)
     True (B) False
                             Questions

9.    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
10.   The court can never order a disclosure of the informant’s true
      identity: (A) True (B) False
11.   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
                            Questions

12.   A male officer should always meet with a female informant
      alone: (A) True (B) False
13.   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
14.   Controlled buys should only be attempted after the handling
      officers have developed a strategy that avoids entrapment: (A)
      True (B) False
                            Questions

15.   The informant should always be searched prior to being sent
      to make a controlled buy because: (A) he may already have
      contraband on his person (B) the officer should never trust the
      informant (C) the officer will have to testify later that he/she
      knows that the contraband was obtained by the informant
      from the suspect because the informant had no contraband
      when the officer observed him encountering the suspect (D)
      both A, B & C are correct
16.   It is common procedure to discuss investigative strategy with
      the informant present: (A) True (B) False
                             Questions

17.   The handling officer can usually relax while handling a reliable
      informant: (A) True (B) False
18.   List the 5 “C’s” for the use and control of informants.
          Answers

1.    D
2.    A
3.    B
4.    A
5.    C
6.    D
7.    A
8.    A
9.    C
10.   B
                            Answers

11.   D
12.   B
13.   B
14.   A
15.   D
16.   B
17.   B
18.   Communicate, Create, Credibility, Control, Cancel
       To obtain credit for mandatory retraining

This CD course is provided by FDLE and the Florida Criminal
     Justice Executive Institute. If you successfully complete this
     course you are entitled to 2 hours of mandatory retraining
     hours. To document these training hours you must:
1.   Have the permission of your agency head or designee.
2.   Have your agency document the training in the same way that
     they normally do, and
3.   Send a letter on agency letterhead, signed by the agency head
     or designee, to: David Brand, Education and Training
     Administrator FDLE P O Box 1489 Tallahassee, Fl 32302.