“Informants” are individuals who confidentially supply information about suspected criminal activity to the police.1
You may also hear informants referred to as “informers”2—or by less flattering terms such as “snitches,” “rats,” or “narcs” (a term originating in the use of informants in drug crimes cases).
Informants play a complex, and often ethically questionable, role in the California criminal court process.
Types of informants
The blanket term “informant” covers two distinct types of informers: citizen-informants, and police confidential informers.
Citizen-informants are people who just happen to witness or otherwise have knowledge about a crime, and who approach the police with that info without expecting anything in return.3
Example: Jerry is involved in a bar brawl in which someone is stabbed. Ben is present at the bar at the time of the fight but does not participate.
Immediately after the brawl, Ben contacts the police and tells them Jerry is the person who did the stabbing. He also tells them where Jerry went after he left the bar. The police use this information to get an arrest warrant for Jerry, who is charged with assault with a deadly weapon.
Ben is a citizen-informant—also known as an “eyewitness-informant.” He has knowledge of the crime only accidentally, because he was present on the scene. And he is offering this information to the police out of a sense of public duty rather than for compensation.4
Police confidential informants
Police confidential informants are people who provide information to a law enforcement agency in return for some kind of compensation.
Police confidential informants come in many different varieties, depending on their motivations and how they operate.
For example, some receive payment in cash from police departments—while others are criminal defendants who provide information about other defendants or suspects in order to get more lenient treatment in their own criminal case.5
Example: Marissa is a methamphetamine user. She is caught by police with a small amount of the drug in her possession and is charged with possession of methamphetamine.
The prosecutor tells Marissa that he will drop the misdemeanor charge for this offense and let Marissa enter California's “deferred entry of judgment” program instead—IF Marissa will help the police gather evidence against some of the dealers who have sold her drugs.
So, working with the police, Marissa calls Ted, one of her dealers. She tells him she wants to introduce a new customer to him. It turns out the new “customer” is an undercover police officer. The officer goes to Ted's residence to buy drugs, and this results in Ted's arrest and prosecution.
Marissa has become an informant working for the police for her own benefit.
It is common for confidential informants to be individuals who are extensively involved with complicated criminal activities, such as those of criminal street gangs. Their involvement in the criminal activity makes them especially valuable sources of information for law enforcement.6
However, some confidential informants come upon the information that they sell to police accidentally.
A classic example is the “jailhouse snitch”—a jail inmate who overhears a confession by another inmate and then offers that information to prosecutors in return for early release from custody or more lenient treatment in his/her own criminal case.7
How police and prosecutors use informants
Just as there are several distinct kinds of informants, there are several ways in which police and prosecutors might use the services of an informant.
The most straightforward way is for the informant to act as a witness for the prosecution in a preliminary hearing or criminal jury trial, testifying about facts that would tend to show that the defendant is guilty.
But it is even more common for police to rely on the information provided by informants to obtain California arrest warrants or search warrants.8
In fact, one study found that 92% of search warrants filed in federal courts for drug cases relied on information from confidential informants.9
Standards for obtaining a search warrant based on informant statements
The way this typically works is that a police officer obtains information from an informant—whose identity will be kept confidential—and puts that information into the affidavit s/he presents to a judge. The judge will then issue a warrant if s/he determines that the affidavit shows “probable cause.”10
But not every statement by an informant will add up to probable cause to issue a search warrant. Judges are not supposed to issue warrants based solely on the statements of an anonymous informer unless the police affidavit also sets forth some facts showing that the informant's statements are believable.11
Example: Somebody fires several shots at a police car being driven by an officer.
Lee, a “serial informant” who has helped the local police with information in felony cases in the past, contacts them. Lee claims to have overheard a conversation in which some other people stated that a man named Ted was the one who fired the shots. Lee tells the police where Ted lives.
But Lee does not identify the people whose conversation he overheard, nor does he give any concrete reason to believe that their statements that Ted committed the crime are accurate.
Based on this report, the police apply for a search warrant to search Ted's home. But they do not receive one because of the lack of information about the people Lee overheard—which makes it impossible for the judge to determine if they are reliable or not.12
Problems with the use of informants in law enforcement
Even police themselves admit that there are lots of problems with the use of informants to build criminal cases.13
The most significant issue is their lack of reliability. Confidential informants who are compensated by police for information have an incentive to tell police and prosecutors what they want to hear rather than the truth. And law enforcement agencies may do surprisingly little due diligence on their informers.14
According to Riverside criminal defense attorney Michael Scafiddi15:
“Even non-compensated citizen informers may have reasons to lie to police—such as a desire to get revenge on the person they are informing on. And police probably have even less information about the backgrounds of these people than they do about paid informers.”
There are plenty of other ethical and practical problems with police reliance on informants, including:
- The development of un-professional personal relationships between officers and informants;
- Police officers making promises to informants that can't be kept; and
- Potential ethical issues when officers give money to informants who are probably going to spend it on drugs.16
If you or a loved one has been charged with a crime, and informant testimony is involved, you may be able to help your case by seeking disclosure of the informant's identity.
The law surrounding disclosure of informants' identity is complicated—and a criminal defense attorney is the best person to advise you on whether this seeking this could help in your case.
Call us for help…
For questions about police and prosecutors' use of informants in California criminal cases, or to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
1 Black's Law Dictionary, 10th ed. 2014, informant. (“Someone who informs against another; esp., one who confidentially supplies information to the police about a crime, sometimes in exchange for a reward or special treatment. — Also termed informer; feigned accomplice.”)
3 Same. (“citizen-informant (1951) A witness who, without expecting payment and with the public good in mind, comes forward and volunteers information to the police or other authorities.”)
4 Based on the facts of People v. Lanfrey (1988) 204 Cal.App.3d 491.
5 See, e.g., Lieutenant Stephen B. Johnson, LA County Sheriff's Department, “Future Polices Regarding the Use of Confidential Narcotic Informants,” Nov. 2001, available at http://lib.post.ca.gov/lib-documents/cc/31-Johnson-j.pdf, at 6. (“In the enforcement of narcotic cases, defense attorneys have grave concerns about the use of paid and defendant confidential narcotic informants.”)
6 See, e.g., FBI's Compliance with the Attorney General's Investigative Guidelines, Chapter Three: The Attorney General's Guidelines Regarding the Use of Confidential Informants, Office of the Inspector General, U.S. Dept. of Justice, Sept. 2005.
7 See “Jailhouse Snitches: Trading Lies for Freedom,” Los Angeles Times, Apr. 16, 1989.
8 See, e.g., Price v. Superior Court (1970) 1 Cal.3d 836 (information provided by an informant went into affidavit used to secure a search warrant).
9 Lieutenant Stephen B. Johnson, LA County Sheriff's Department, “Future Polices Regarding the Use of Confidential Narcotic Informants,” endnote 5, above, at 2.
10 Penal Code 1525 – Issuance; probable cause; supporting affidavits; contents of application. ("A search warrant [including one based on information provided by an informant] cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched.")
11 Illinois v. Gates (1983), 462 U.S. 213, 238-39. (“For all these reasons, we conclude that it is wiser to abandon the “two-pronged test” established by our decisions in Aguilar and Spinelli.11 In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable cause determinations. See Jones v. United States, supra; United States v. Ventresca, supra; Brinegar v. United States, supra. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information [i.e., informants], there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... conclud[ing]” that probable cause existed.”)
12 Loosely based on Price v. Superior Court (1970) 1 Cal.3d 836.
13 See, e.g., Lieutenant Stephen B. Johnson, LA County Sheriff's Department, “Future Polices Regarding the Use of Confidential Narcotic Informants,” endnote 5, above.
14 See, e.g., same, at 3.
15 Riverside criminal defense attorney Michael Scafiddi is a former police officer and police sergeant. He knows how the police gather evidence, including through informants—and he understands the weaknesses in their strategies. He represents clients in all San Bernardino County courthouses and Riverside County courthouses.
16 Brian Lieberman, “Ethical Issues in the Use of Confidential Informants for Narcotic Operations,” Police Chief, June 2007.