Dennis G. Fitzgerald is the author of The Informant Law Deskbook, a 1997 West Group publication. He is a retired U.S. Drug Enforcement Administration Special Agent and former Miami Police Department Narcotics Sergeant. An NACDL member, he provides consulting services for the defense bar.
The defense lawyer's perspective that law enforcement views its snitches as free agents, conveying to them near 007 status, is seriously flawed. That misconception may place you at a serious tactical disadvantage in the defense of your client.
Many police managers view informants as a necessary evil,1 time bombs waiting for the wrong moment to explode. The catastrophe that follows their detonation may include the death or serious injury of citizens,2 civil law suits and destroyed police careers.3 The Drug Enforcement Administration (DEA) reports that the "failure in the management of cooperating individuals constitutes, perhaps, the most obvious single cause of serious integrity problems in DEA and other law enforcement agencies."4
Law enforcement efforts to rein in both their informants and their agents have created a paper trail few defense attorneys have discovered. Known as the "Informant File," its contents may contain the detonator you can use to blow the government's case against your client out of the water.
The Informant File contains closely guarded information concerning the informant and his relationship with the government. At a minimum it should contain:
a copy of his agreement to cooperate with the government
a debriefing report or an outline of what type of cases he might produce
his personal and criminal history
the amount of money paid to him for information and expenses
and if a defendant informant, what he might expect at sentencing in return for his substantial assistance.
The file can also hold internal memoranda prepared by the control agent documenting informant misconduct and deactivation known as "blacklisting." Either may have a devastating effect on the informant's credibility and may prove invaluable in the preparation of your case. When the reliability of an informant witness may be determinative of guilt or innocence, non-disclosure of evidence affecting the informant's credibility falls within the general rules of Brady.5 While the file may contain evidence adversely affecting the credibility of the informant,6 jurisdictions differ in how they respond to demands for the disclosure of its contents.7
Law enforcement agents do not voluntarily surrender their informant's file. Some prosecutors are surprised when they learn of the file's existence. Those prosecutors who do know of the file are frequently ignorant about what it actually contains. Those prosecutors who are familiar with the file may vigorously resist disclosing its contents.
The defense attorney who recognizes the potential value that an informant's file holds still remains at a disadvantage without knowing exactly what the file contains. What follows is an examination of information that a "generic" informant file should hold. Armed with this knowledge, the defense attorney can request the confidential contents with some degree of specificity.8 Coupled with an aggressive investigation of the informant, counsel can then attempt to convince the court that the file information is subject to disclosure.9
The DEA, the FBI and Customs are the largest federal consumers of informant services. Federal agents and local law enforcement are equally dependent on informants. It is an unusual organized crime and/or drug case that does not involve informants.
The defense bar usually describes informants as "snitches." Agents and officers may refer to their informants as "snitches" in conversations. However, in written reports and forms, informants may be described as "sources of information," or "cooperating individuals," etc.
Agencies not only use different terms for informants but many have sub-categories for their sources, each bearing different terms. This can be critical when drafting discovery demands10 for the informant file. For the purpose of this discussion the terms "confidential informant," or "C.I." will be used to describe persons who confidentially volunteer material information of law violations. These terms do not include persons who supply information only after being interviewed by police officers, or who give information as witnesses during an investigation.11 The informant is under the direction of a specific agent and furnishes information with or without expectation of compensation.12 The term "informant file" will be used to describe the file that contains all information produced by a law enforcement agency that pertains to a specific informant.
Because of its extensive participation in multiple jurisdiction task forces since 1974, the DEA has greatly influenced state and local law enforcement's use of informants. Many of the DEA forms, procedures and filing systems have been adapted by local agencies and are frequently seen in state prosecutions.
Much of what follows is drawn from a recent FOIA release of the DEA Agent Manual section13 governing the informant file and its contents. Like a legal desk book, the volume is loose-leaf and subject to change and update. With few exceptions, the sub-chapter governing the format of the informant file has remained the same throughout DEA's 25 years of existence.
The informant file is generally kept by the law enforcement agency in a safe or a Mosler-style "combination entry only" file cabinet. Those individuals with the combination are generally command level personnel. The safe or cabinet when unattended is usually locked.
Generally, informant files are segregated from all other investigative files. Access to the file is generally restricted to the informant's handling agent, supervisor or others who can show a legitimate need to inspect the file. Many agencies, including DEA14 have sign-out logs that record the date and time the file was removed and returned.
The sign-out/sign-in procedure, if followed by the agency, can be valuable to the defense attorney. This is particularly true when an informant is suspected or alleged to have committed a violation of agency procedure or law. Some agency manuals only require periodic supervisory review on either a monthly or quarterly basis. A flurry of supervisory sign-outs or access to the file by agency internal affairs investigators could signal extraordinary attention being paid to a particular informant's misconduct. When you discover extra scrutiny being paid to the C.I. it can certainly expand your witness list. Your subpoenas will also create a stir within the agency. Supervisors and internal affairs investigators do not like to testify and are usually poor witnesses for the government.
Code Numbers and Names
The primary method used to keep an informant's identity confidential is to assign him a code number or a code name. The code number system is more common but some agencies issue both.
The number or name is used in both investigative reports and internal memoranda that document the informant's activity. Receipts for payment made to the informant for information and expenses will also bear the code number and may be signed by the informant with his code name. Agencies that use both code names and numbers do so for security and as a matter of convenience in dealing with their sources. The code name allows the informant to telephone his agent handler's office and leave messages without giving his real name. Keeping the informant's identity a secret from others in the police department or agency is a routine practice.
The code number can provide the defense with some valuable information about the informant. The numbering system historically used by DEA will immediately tell what year the informant was recruited. As an example, informant number SGB-89-X001 was recruited early in 1989. He was the first informant (001) documented by the respective DEA office. The letters that precede the year yield less obvious and more difficult to decipher clues. The code number always starts with S, the second and third characters are the designators of the establishing office. If an X appears in character six it indicates a DEA state or local task force established the informant.15 DEA recently realized the value of the informant number to the defense and has begun redacting informant code numbers from investigative reports.
In a recent major smuggling investigation, I demonstrated the number's value to the defense attorney. A case was developed in Phoenix, Arizona in 1995 through the efforts of informant SGB-89-X001. He maintained a Miami Field Division (G), Ft. Lauderdale, Florida Resident Office (B) informant number and the two digits, 89. In essence the code number told the attorney who the informant was. His client had conducted legitimate business with a Ft. Lauderdale export company executive prior to his arrest. It also told us to expect an informant with a long track record of use, dating back to at least 1989. The X indicating a DEA Task Force told me that the informant was probably recruited by a police officer participating in the DEA Task Force. Police officers routinely violate DEA procedure for handling informants and that was the case here. In a trial by ambush jurisdiction, that small amount of intelligence information contained in the informant's code number seemed like a windfall.
Most law enforcement agencies use a form to fully identify their informants and document their criminal histories. Some of the forms resemble arrest reports, others are as complete as an application for employment. Comprehensive documentation also serves to verify the existence of the source to prosecutors and police managers. Instances of police officers creating rather than recruiting informants have been occurring for decades.16 The non-existent informants provide extremely accurate information to support the issuance of search warrants.
Again, DEA has had a dramatic impact on the practices employed by state and local police departments. Many police agencies have adopted the same documenting format used by DEA, either in part or in whole.
DEA's Confidential Source Establishment Report17 contained in the Informant File is DEA Form 512. The form has over 60 boxes that require the agent to obtain information from and about a prospective informant. Beyond name, date, place of birth, Social Security number and address, it also requires that the informant's criminal history be fully investigated. Form 512 contains useful information for trial strategy, particularly if the informant has committed crimes the government knows about that would affect his credibility at trial.
The C.I. is also fingerprinted and an "Inquiry Only" request is sent to the FBI for fingerprint information. The purpose of the query is to determine whether there is anything in the informant's criminal background that would preclude his being used as an informant. DEA has been embarrassed before. In one case, agents unwittingly used an informant who was responsible for two murders.18
The DEA Manual and the Informant Establishment Report require more than a routine background check and "running the informant's fingerprints." The NCIC,19 Computerized Criminal History (CCH) and Interstate Identification Index (III) files must also be queried. The check is based upon the informant's FBI number. If the informant was born before 1956, and the CCH and III files are negative, a Request for Criminal Records (DEA Form 105) must also be sent to the FBI Identification Division. There could be a manual arrest record that may not have been indexed.20 The results of the criminal check are entered on the Informant Establishment Report.
DEA requires that its own computer system, NADDIS21 be checked. Every name ever indexed on a DEA investigative report22 is entered into the computer. An INTERPOL23 check is also required. A box documenting the date when inquiries were completed is also provided on the form.
Other items of interest on the Informant Establishment Report include:
Whether the informant has been declared unsatisfactory (blacklisted);24
If the informant is or has been enrolled in the U.S. Marshal's Witness Security Program;
Whether the informant is on probation or parole, and the probation /parole officer's name who approved his use as an informant;25
If a defendant informant, the name and telephone number of the prosecutor who gave permission for his use;
Whether a Cooperation Agreement (DEA Form 473) has been completed;26
Whether an initial debriefing report has been completed;
A brief statement of what type of cooperation the informant hopes to provide, including a NADDIS number of the target.
Not all agencies have adopted the strict documenting procedure that DEA is supposed to follow. However, besides DEA's influence over police practices, they have been providing formal police investigator training for years. The documenting process is taught to the state and local police students. Police agencies also contract with police training companies for investigator training.27 Documenting is a part of many of those courses.
With the guidance of a clearly stated informant documentation process, an investigator is hard pressed to explain in court why he did not check the C.I.'s criminal history. The investigator handling an informant with a long history of violent crime is clearly placing himself in unnecessary danger. Moreover, an informant convicted of crimes showing dishonesty or perjury could also taint any future testimony he might offer at trial28 wasting valuable time and money for both the court and the law enforcement agency. The defense attorney should be aware that the FBI and some other agencies do use informants with incredibly violent pasts.29
Defense attorneys must aggressively investigate the informant witnesses' background and conduct during the investigation of the client. Although costly and often time-consuming, it may be the only way to effectively undermine the credibility of the informant witness at trial.
The client may hold the key to his own defense. Your thorough debriefing conducted soon after your client's arrest may develop valuable leads for your investigator to follow.
The Informant Agreement outlines what cooperation the prosecutor or police expect from the informant. It will also state what the informant can expect in return for that cooperation.
The informant file maintained by the police department or federal agency will usually only contain agreements between the control agent and the informant. It will be signed by the control agent, the informant and usually one witness. Although agreements between the prosecutor and the informant may exist, they do not necessarily find their way into the informant's file maintained by the law enforcement agency. Those agreements are generally retained in the prosecutor's file.
Informant Conduct Agreements contain the rules which an informant must follow while working for the police. The agreement may be referred to by another name but it is usually no more than a list of behavior strictly prohibited by the police. Some police agencies have gone to the extent of preparing a list of as many as 25 "thou shalt nots" for the informant including not to carry a firearm, not to violate the law and not to represent himself as a law enforcement officer. It should not be confused with the Informant Agreement or contract that outlines what cases are expected from the informant and what he may expect in return for his cooperation.
DEA's agreement is contained in DEA Form 473. It contains:
C.I.'s shall not violate criminal law in furtherance of gathering information or providing services to DEA, and that any evidence of such a violation will be reported to the appropriate law enforcement agency.
C.I.'s have no official status, implied or otherwise, as agents or employees of DEA.
The information they provide may be used in a criminal proceeding, and although DEA will use all lawful means to protect their confidentiality, it cannot be guaranteed.
It is a federal offense to threaten, harass, or mislead anyone who provides information about a federal crime to a federal law enforcement agency. Should they experience anything of this nature as a result of their cooperation with DEA, they should contact their controlling agent immediately.
Informants sign DEA Form 473 acknowledging that he/she has read and agrees to the listed conditions. His/her signature and the date are witnessed by two agents. Should a cooperating individual refuse to sign the DEA Form 473, the following statement is entered on the form, and is signed and dated by two agents: "On (date), (C.I. Number) was advised of and agreed to the conditions set forth on this form. (C.I. Number) refused to sign." The DEA-473 is placed in the appropriate C.I. file.30
Informants usually possess a variety of criminal intelligence. It is the duty of the control agent to extract as much information from the informant as possible. The process at DEA is known as "debriefing."31 Information learned from the informant is contained in a report prepared by the control agent, usually entitled "Debriefing of Informant #" and is memorialized in a DEA 6 investigative report.
Agencies differ in what they do with information learned during a debriefing about crime that is outside of their area of responsibility. The "written rule" in most law enforcement agencies is to pass the information on to the proper jurisdiction or agency charged with enforcing a particular law. It is not unusual, however, for an agent to keep the information to himself or within his agency if he believes that divulging the data could compromise the informant's identity. The FBI is generally regarded by local law enforcement officers as a "one-way street" when it comes to sharing information. They take information but seldom return the favor. The FBI has provisions in its own manuals that allow them to withhold information from local police about crimes that either have been committed or are planned for the future.32 The FBI does not necessarily report crimes committed by their informants that occur outside "the line of duty" if the disclosure will compromise their informant's identity.
If you are able to obtain the debriefing report during discovery, you may well find that the police ignored "big fish" and went after your "little fish" client. If your client is not mentioned in the initial debriefing report, he may truly be a victim of a "fishing expedition" by the informant. This is particularly likely to happen with defendant informants. They must produce bodies in exchange for their freedom and are not enthused at the prospect of turning in friends if there is any alternative. They certainly like to avoid providing evidence about their true source of supply if he is their only source of drugs.
Although rare, some defendants have no one to give up and they must go out and make a case from scratch. Check the court file to see if the government has asked for seemingly needless continuances of the defendant informant's criminal case. Those continuances could be at the urging of the informant handler to buy time for his C.I. to produce a case. Check if your client's arrest was close in time to the defendant informant's sentencing date. Your client's case may have held the key that opened the jail house door for the snitch.
In one case I assisted in, the defendant informant worked on our client for months without getting him to deliver drugs. As the date of the snitches' sentencing came closer, his efforts to draw the client into a criminal case became increasingly desperate. The video of our client's arrest showed the informant literally throwing the "buy money" at the defendant when the client attempted to withdraw from the conspiracy. The informant's long distance telephone bill showed many calls to the client at all times of the day and night. Many of the calls were not taperecorded.
My investigation showed that the state had requested two continuances in the case. We also obtained a copy of the Informant Agreement that gave the snitch 90 days to produce three prosecutable cases. In return, the state agreed to recommend probation at his sentencing. The client's arrest was on the eve of the agreement's due date.
The truly mercenary money motivated informant may also find himself running out of targets. No defendants equals no money, so he will become creative in his efforts to deliver bodies. Any of the above situations provide ripe opportunities for the defense attorney to explore an entrapment defense.
Some agencies require that a formal statement be taken from the informant if he has provided information or has participated in an activity in which he may be required to testify.33 The informant is usually told by his control agent that the statement will serve as his "report" of what occurred. It should be taken immediately or soon after the police activity and should be a fresh recollection of what the informant saw, heard, and said. In reality, the procedure is a precaution the agency takes in the event the informant decides to deny his role in the investigation. It is not always followed. Some informants refuse to sign a statement. DEA has a provision "where taking a statement may adversely impact an investigative outcome, the procedure may be waived if all relevant information is reported in a DEA 6"34 investigative report.
Very often the statement is prepared by the control agent for the informant's signature. There is seldom an ulterior motive for this method of obtaining the statement. Many informants have difficulty in verbalizing a complete sentence let alone writing their own statements. Some can't read and have no idea what they have signed. When it comes down to "sign or no money" they will generally sign anything. The signed and witnessed statement is then usually placed in the informant file with other internal memoranda pertaining to the informant.
A DEA informant is usually paid when he assists in developing a case, either by supplying information or by actively participating in the investigation. He will be paid in either a lump sum or in staggered payments.35 It has been my experience that many agencies have similar payment practices.
Some informants are actually paid on a commission basis or a contingent fee basis.36 The latest FOIA release of the DEA Agent Manual redacted a pertinent part of the manual governing contingency payments to informants. Earlier editions of the manual directed agents to instruct informants paid on a contingent fee basis about the law of entrapment.37 The manual contains the following instructions for agents:38
The fee arrangement should be discussed with the cooperating individual in detail; there should be no gaps in understanding the terms of the arrangement;39
The usual instructions to the cooperating individual, the details of the fee arrangement and the Entrapment Instructions should be provided to the cooperating individual in writing at the beginning of the operation;40
Every effort should be made to maximize the control and supervision of the cooperating individual;41
Every effort should be made to corroborate the cooperating individual's statements concerning his activities;42
Payments should be completed before the cooperating individual testifies;43
Agents should be prepared to give reasons why it is necessary to use cooperating individuals in this unusual manner.44
Money for Information
Informants generally fall into two very broad categories:
Those who are working for money.
Those who are working to stay out of or get out of prison.
It is no great revelation that informants are paid. In 1993, approximately $97 million was paid to informants by the FBI, DEA, Customs, ATF and the IRS.45 How much a C.I. is paid may be as significant to the defense as it is embarrassing to the prosecution at trial. DEA instructs its agents that they "should be prepared to give reasons why it is necessary to use (paid) cooperating individuals in this unusual manner46 during testimony." Defense counsel should be prepared to rebut the explanation when it is tendered.
As a prerequisite to any payment for information, most agencies require that the individual providing the assistance be documented as an informant. The informant file will almost always contain a payment record. In DEA cases that record is contained in Form 356 and is kept at the top of the informant file. It lists the payments the informant has received for all investigations he has participated in, not just your client's case.
Some state and local agencies maintain a payment record that incorporates a "track record" of the informant's success ratio. This serves the dual function of recording how much the informant was paid and his level of reliability. That information is particularly useful when agents apply for a search warrant based upon an informant's information and his reliability.
Informants generally receive money from their agent handler for three reasons:
The amount paid to a money motivated informant is usually calculated by the significance of the target (your client), the danger the target presents to the informant, and the amount of the actual or potential seizure realized by the government. The CI's payment is for information and/or active participation in a case.47 He is also reimbursed for expenses including but not limited to rental cars, hotel rooms, meals while with the target and telephone calls. Both sums are small change when compared to the award paid to an informant responsible for a seizure of real or personal property. The informant may become eligible for a percentage of the assets seized by the government. The award can be as much as 25 percent of the property seized or up to $250,000 per case.48
Payment for information and/or active participation (often called a reward for information) or when an informant assists in developing an investigation. DEA refers to these funds as P.I.;
To purchase evidence. DEA refers to these funds as P.E.;
Payment or reimbursement for expenses incurred in connection with an investigation.
Any money given to an informant must be signed for by the C.I. no matter what the funds are to be used for. Many agencies require that two agents be present for any payment. The second agent signs the receipt as a witness.
The receipt serves two purposes: It is not unusual for an informant to turn on his agent handler and claim he was not paid when, in fact, he was. Such allegations usually occur when the snitch feels the agent didn't live up to his end of their arrangement. The agent may have failed to deliver on a promise. The informant's only way to hurt the agent is to allege wrongdoing. Misuse of funds is one of the most serious allegations that can be leveled against an agent.
The agent may actually be pocketing money that was meant for the informant. I have received reports from all regions of the U.S. that document how agent handlers steal from informant funds. One classic method is to have the informant sign numerous blank receipts. The agent tells the snitch the procedure is for the C.I.'s own protection so he won't have to sign for funds while on the street. The agent then fills in the amount of the reward and the date, keeping the money for himself.
It is relatively easy for a jury to understand why the government pays the money motivated snitch.49 After all, greed is a universal motivation. Yet the defense can get the jury's attention by making an issue of an outrageously high sum paid to deliver your client to the police.
Informant's Tax Responsibility
There is no requirement for the paying agency (payor) to notify the IRS of the informant payment. The Code of Federal Regulations governs the area of payments for which no return of information is required to be made by the payor. Section 26CFR 1.6041-3(2)(n)50 does not require IRS notification for: "A payment to an informer as an award, fee, or reward for information relating to criminal activity but only if such payment is made by the United States, a State, Territory, or political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. . . ."51
Both prosecutors and control agents routinely turn their heads to the tax evasion committed by their informants. Defense counsel should capitalize on the transgression.
In contrast, the informant who is working to stay out of jail usually is not paid for information or participation in a case. His reward is a "get out of jail free card" or a downward departure in his sentence.52
Federal agencies such as DEA generally do not pay their defendant informants. Payments aren't necessary because the informant is working for his freedom and payments may look bad when revealed at trial. Yet money does get to these defendant informants, usually disguised as payments for expenses. Hidden payments usually occur when the handling agent is over anxious to achieve results with his informant or is outwitted by the snitch.
One such case was in Miami, Florida. A particularly slimy "blackballed" informant who faced significant jail time for an attempted murder was recruited to set up "corrupt" U.S. Customs agents. Customs Internal Affairs Investigators were convinced that nearly all of their Hispanic agents were either corrupt or corruptible. This, of course, was not true. In their exuberance to arrest agents they reactivated the informant from "blacklist" status and sent him to make cases against their own agents. Before trial the government insisted that the snitch was only given per diem and reimbursement for his out of pocket expenses. In reviewing reports released to the defense it was clear that the informant was living a lifestyle of the rich and famous. The defense team calculated that the C.I.'s reimbursement for expenses was in the neighborhood of $1000 per day for several months. It was clear that the internal affairs agents were attempting to surreptitiously reward the informant to keep him working. It was also obvious that prosecutors wanted to keep the jury from learning about the exorbitant sums paid to the defendant informant.
Purchases of Evidence
Control agents also give their informants money to purchase evidence from targets of their investigations. Informally called "buy money" or P.E. funds (purchase of evidence) by agents, the funds are only to be used by the informant during a controlled purchase of evidence also called a "controlled buy." In truth, C.I.s often retain some of the "buy money" as a "self-help" reward.
Here is a general description of how law enforcement agencies are trained to conduct a controlled buy. Deviations from the procedure may allow the informant to steal "buy money." Failure to follow the steps outlined below also allows a desperate snitch to plant evidence on a target or provide his own evidence of a purchase. How the defense attorney capitalizes on deviations from the procedure are case specific and usually require investigative effort. Police reports detailing the "controlled buy" are usually found in the informant file.
The purchase of evidence by the informant should be made with funds provided to the C.I. by the control agent. The money is usually either pre-recorded with the serial numbers written down, or the actual currency is photocopied by agents. The serial numbers of funds later seized from the defendant are compared against those used during the controlled buy. (Don't make an issue of the illegality of photocopying U.S. currency, it's a waste of time.) The informant uses the money only to purchase evidence, usually stolen property or drugs. He is not to keep any of the funds for himself.
Fortunately for the defense, informants don't play by the rules. Most are thieves who cannot resist the temptation of easy money. Many will steal from their agent handler whenever given the chance. Some agents turn a blind eye to the theft. They allow it to occur as a way to get around strict rules imposed by their supervisors governing payments to C.I.'s. Others are naive and don't realize the informant is rewarding himself.
One common way for these self-help payments to occur is when the informant quotes a higher purchase price to his control agent than that quoted to him by the dealer. One informant actually added an adulterant to a one-ounce package of cocaine that he purchased, doubling both the weight and the price he reported paying for the drugs. Naturally the agent didn't complain about the bonus two-ounce purchase. Only the defendant will know for sure just how much he really sold to the C.I. but will seldom complain about the discrepancy at his bond hearing.
Some informants reward themselves by simply keeping some of the purchased drug evidence for themselves to use or to resell. To ensure the snitch's honesty, agents are taught to search the informant before and after the purchase. The search is meant to eliminate any possibility that the evidence purchased by the informant was in fact supplied by the informant. The search, however, does not always occur.
The informant files of some law enforcement agencies actually document the reliability of their C.I.s on a case by case basis. For example, the Portland (Oregon) Police Bureau has employed a standard form that tracks an informant's reliability. To satisfy the Aguilar-Spinelli53 basis of knowledge and reliability test, the Tacoma Police (Washington) Narcotics Unit documents each instance that their informant produces results during a "controlled buy."
Searching the Informant
To illustrate the importance the DEA places upon the search of an informant both before and after the purchase of evidence is the following excerpt from the agent manual:
Where a cooperating individual is to participate in an undercover purchase in which he may come in contact with either official funds, controlled drugs, or anything else of potential evidentiary value, he will be thoroughly searched both before and after the undercover encounter, and where possible kept under continuous observation in between. The reason for this is to preclude questions as to the validity or integrity of the evidence. The search of the cooperating individual will be reported in the DEA-6 documenting the activity.54
The value that the search procedure holds for the defense is often overlooked. It is an area loaded with potential problems for the prosecution. Perjury by the informant, agents or both is often a possibility if they are called to testify about the extent of the search.
The defense attorney must be aware that there are two or three participants to every search: the informant, the agent and a witness to the search, usually another agent. The problem for the prosecution is subtle: very often the search was never conducted although investigative reports state that it occurred. If a search was conducted, it was not a thorough search that included an examination of the informant's body cavities. The prosecutor is usually the last to find out that no search or only a cursory search was conducted. That revelation should occur during the defense examination of the informant and agents.
The reason for the lapse in the search procedure is difficult for the prosecutor or defense attorney to understand, probably because neither has had to conduct a body search. For the agent, bypassing a thorough search of the informant is convenient. It also avoids the often disgusting task of inspecting an unwashed snitch.
Some informants, particularly those who are police "wannabes" resist being searched. They claim it is demeaning. Agents don't want to loose the snitch and let the search, instead of his pants, fall to the wayside. Yet, it is not unusual for the thorough search to be routinely reported as if it had occurred. If a "pat down" search was performed it is often reported as a thorough search.
In-house, agents will offer the excuse that there wasn't time before a buy to accomplish the search, or there wasn't a suitable place at the staging area of the operation to conduct the search. Another excuse offered is that the informant was the opposite sex of the handling agent. A search of a male informant by a female agent or vice-versa is strictly prohibited by most agencies. There simply may not be a female agent available to do the search. Again, poor planning by the case agent is the cause. None of these are acceptable excuses and they only indicate poor planning by the agent. The defense attorney should capitalize on any lapse in the search procedure.
In a Franks55 hearing in which I assisted, the informant was called to testify following his handling agent's testimony of how a "controlled buy" occurred. As expected, the agent recounted his thorough search of the informant both before and after the drug purchase. Apparently the informant had not been coached by the prosecutor who genuinely appeared to be ignorant about search procedures. The informant testified that he was patted down and nothing more. The car he used to go to the defendant's house for the purchase was never searched.
The agent's partner, a witness to the "search" also described it as thorough. He went into great detail about how it was conducted. Perhaps he was confusing the incident at trial with another buy. It was clear that the judge believed the agents were not being truthful and the search warrant was suppressed.
Obviously the thorough search is reserved for occasions when informants are sent to purchase items such as small quantities of drugs or counterfeit notes that are easy to conceal. The purchase of a stolen stereo would not call for a strip search. Regardless, searching the informant on his return with the stereo would be necessary to determine he did in fact use all of the pre-recorded buy money.
Knowing what the informant file should contain allows you to draft a more specific and complete demand for discovery. Your knowledge of what should be in the file also makes it more difficult for the prosecutor to withhold information which will assist in the defense of your client.
1. Confidential Informants - Concepts and Issues Paper, International Association of Chiefs of Police, Law Enforcement Policy Center.
2. Carlson v. United States, 93-953G, see also Alvord, Snitches, Licensed to Lie?, San Diego Union Tribune, May 30, 1995, at A-7.
3. Commonwealth v. Lewin, 405 Mass. 566, 542 N.E. 2d 837 F.2d 727, 731 (6th Cir. 1988).
4. Integrity Assurance Notes, Drug Enforcement Administration, Planning and Inspection Division, Vol. 1, No. 1 (Aug. 1991). See also United States v. Gardner, 658 F. Supp. 1573, 1575 (W.D. Pa. 1987).
5. Brady v. Maryland, 373 U.S. 83, 87 (1963).
6. See United States v. Bagley, 473 U.S. 667, 676 (1985); Giglio v. United States, 405 U.S. 150, 154-55 (1972), Napue v. Illinois, 360 U.S. 265 (1959).
7. See Steven G. Mason, How to Compel the Disclosure of the 'Snitch'/Confidential Informant, The Champion, May 1996 at p. 24.
8. Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987).
9. United States v. Valenquela-Bernal, 458 U.S. 858, 867 (1982).
10. Mason, surpa.
11. Gordon v. United States, 438 F.2d 858, 874 (5th Cir. 1971).
12. Drug Enforcement Administration Agent (DEA) Manual 6612(C).
13. DEA Agent Manual Ch. 661, 6621, 1995.
14. DEA Agent Manual 6612.24.
15. DEA Agent Manual 6612.22(B).
16. Mark Curriden, Secret Threat to Justice, Natal L.J. 1, 29 (Feb. 21, 1995).
17. DEA recently began referring to informants as confidential sources (CS) in official reports and internal memoranda.
18. United States v. Bernal-Obeso, 989 Fd 331 (9th Cir. 1993).
19. National Crime Information Center.
20. DEA Agent Manual 6612.26.
21. Narcotic and Dangerous Drug Information System.
22. DEA 6.
23. International Criminal Police Organization.
24. DEA Agent Manual 6612.63; blacklisting alerts any DEA agent making inquiries about a prospective informant that he has been declared unreliable and should not be used.
25. See United States v. Trevino, CR-94-78-F, an informants pre-sentence report can contain information damaging to the informant reputation. Obtaining the PSR can be difficult if not impossible.
26. See United States v. Kojayan, 8F.3d 1315 (9th Cir. 1993), government's failure to disclose that a key witness had entered into a cooperation agreement was prosecutorial misconduct depriving the defendant of due process of law.
27. For example, the National Institute for Drug Enforcement Training, is a private training provider for state and local police. The author is the co-founder of the company.
28. United States v. Brooks, 966 F.2d 1500, 1502-05 (D.C. Cir. 1992) and Carley v. Duckworth, 738 F.2d 875, 878 (7th Cir. 1984).
29. FBI Manual of Investigative Operations and Guidelines, Volume 1, Part 1, Section 137. Informants.
30. DEA Agent Manual 6612.3F (1 thru 4). See also 6115.2.
31. DEA Agent Manual 6612.32.
32. FBI Manual of Investigative Operations and Guidelines, Volume 1, Part 1, Section 137. Informants.
33. DEA Agent Manual 6612.33.
34. DEA Agent Manual 6612.33 (A).
35. DEA agent Manual 6612.43(A).
36. See United States v. Cervantes-Pacheco, 8F.2d 452 (5th Cir. 1986), reconsidered, United States v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987), contingency fee arrangements are not per se unconstitutional.
37. DEA Agent Manual 6612.43A1. United States v. Vida, 370 F.2d 759 (6th Cir. 1966) cert. denied, 387 U.S. 910 (1967).
38. DEA Agent Manual 6612.43A1.
45. Mark Curriden, Secret Threat to Justice, Nat'l L.J. 1, 29 (Feb. 20, 1995).
46. DEA Agent Manual 6612.43(7).
47. DEA Agent Manual 6612.43.
48. U.S.C. 524 (c)(1)(B) and 19 U.S.C. 1619 (c).
49. United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987).
50. 4-1-97 Edition of the Code of Federal Regulations, Internal Revenue Service, Treasury.
52.18 U.S.C. 3553 (e) and 28 U.S.C. 954 (n), U.S.S.G. 5K1.1.
53. Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969).
54. DEA Agent Manual 6612.31(G) Release 1995.
55. Franks v. Delaware, 438 U.S. 154, 171 (1978).
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