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Search and Seizure for Police and Prosecutors

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Confidential Informants

 

  1. Provide a reason to believe the informant is telling the truth.
    (Provide at least one of the following)

    1. Establish that the informant has provided reliable information in the past.
      1. State how many times informant has provided information, AND
      2. Describe the results of the past information (arrest, conviction, etc.).
    2. ORDescribe any details of the informant’s tip that are corroborated by police investigation.
      1. Establish how the details were corroborated, AND
      2. Establish that the corroborated details are facts not readily available to any member of the public, and that the details indicate the informant’s inside knowledge, OR
      3. Establish that the details of the tip predicted behavior or events that did in fact occur.
      4. Provide information required for each different source of information (informant, police investigation, controlled buy, etc.) – see relevant outlines.
    3. ORProvide facts that help establish the informant’s credibility.
      (Provide two or more of the following.)

      1. Establish that the informant gave a statement against his own penal interest,
      2. Establish that the informant was in police custody when he gave his statement,
      3. Establish that the informant was not threatened or promised leniency,
      4. Provide the informant’s name (if the name cannot be provided, state why),
      5. Establish that the informant’s identity is known by affiant or other police officers,
      6. Establish that another informant, also named or discussed in the affidavit, independently provided the same information.
  2. Establish how the informant knows the information.
    (Provide at least one of the following)

    1. Establish that the informant knows the information through his own personal observation.
      1. Describe the informant’s observations (what informant observed, and where and how informant observed it).
      2. Establish when the informant made his observation.
        1. Provide exact date and time, or
        2. Establish that observation was made within a certain number of hours, days or weeks prior to the application for search warrant.
    2. ORDescribe any details of the informant’s tip that are corroborated by police investigation.
      1. Establish how the details were corroborated, AND
      2. Establish that the corroborated details are facts not readily available to any member of the public, and that the details indicate the informant’s inside knowledge, OR
      3. Establish that the details of the tip predicted behavior or events that did in fact occur.
      4. Provide information required for each different source of information (informant, police investigation, controlled buy, etc.) – see relevant outlines.

Probable cause for the issuance of a search warrant “may be determined on the basis of evidence which at trial would not be legally competent.”1 Hearsay, such as information from a confidential informant, can be sufficient to establish probable cause to issue a search warrant, regardless of whether the hearsay would be admissible in a trial.2 When probable cause to issue a search warrant is based on hearsay information from a confidential informant, the affidavit must establish (1) the veracity or credibility of the informant, and (2) the basis of the informant’s knowledge of the information.3 Both requirements must be met for each confidential informant from whom information for the affidavit was obtained.

Provide a reason to believe the informant is telling the truth.

To establish the veracity or credibility of the informant the affidavit must provide the magistrate or issuing judge with a reason to believe the informant is telling the truth. In so doing, the affidavit must do more than simply state that the affiant knows the informant to be reliable or truthful.4 For example, the affiant may establish the informants veracity by showing that

(1) the informant has given reliable information to police officers in the past; (2) the informant is a volunteer citizen-informant; (3) the informant has made statements against his or her penal interest; (4) independent investigation by police corroborates [the] informant’s reliability or information given; and (5) facts and circumstance disclosed impute 5

The simplest method of establishing the veracity of the informant is to establish that the informant has provided reliable information in the past that was relevant to a police investigation of criminal activity.6 Preferably, the informant has provided information in the past that has led to the seizure of evidence, or to arrests or convictions.7 Naturally, the more times an informant has provided reliable information in past investigations, the more credible the informant can be considered in the present investigation.8

When probable cause for the search warrant is based on information from an informant who does not have a past record of providing information, the informant’s veracity may be established by other means. For example, the issuing magistrate or judge may have reason to believe the informant is telling the truth if specific details of the informant’s tip are corroborated by police investigation.9 However, the police investigation must corroborate details that are not readily available to any member of the public. 10 Thus, corroboration of the informant’s description of a particular residence or vehicles parked at the residence is not sufficient to establish the veracity of the informant.11 On the other hand, corroboration of information from a confidential informant regarding the telephone number for a particular residence, the ownership of a vehicle parked at the residence, or the occupation of the owner of the residence is sufficient.12

Other methods of establishing the informant’s veracity include providing the informant’s name or establishing that the affiant knows the informant’s identity.13 The issuing magistrate or judge can reasonably infer that an informant who is named in the affidavit has a “greater incentive to provide truthful information because he or she is subject to unfavorable consequences for providing false or inaccurate information to a greater degree than an unnamed or anonymous individual.”14 However, the informant’s identity alone would not be sufficient to establish the informant’s veracity. Additional information would be necessary, such as corroboration of some details through police investigation, as discussed above, or corroboration through statements from other informants.15 Thus, the fact that two or more informants independently provided the same information indicates the veracity of the informants.16 This is true even if one of the informants did not provide information sufficient to establish the informant’s basis of knowledge, as long as one of the informants establishes a basis of knowledge of the information.17 Likewise, information from an informant that is against the informant’s penal interest also indicates the veracity of the informant.18 Finally, circumstances that establish the informant’s cooperation with police during an investigation can indicate the informant’s veracity. For example, officers can establish the veracity of an informant by describing the informant’s “history of repeated sessions and extensive cooperation with the investigating officers” and details of “the [informant’s] reported contacts with the suspect.”19

Establish how the informant knows the information.

In addition to establishing the veracity of the informant, the affidavit must also establish how the informant knows the information.20 This requirement is designed to eliminate the use of rumor or innuendo as a basis for issuing a search warrant. This requirement can be met in only two ways. First, the affidavit may establish that the informant knows the information from his or her own personal observations.21 In other words, if the informant heard, watched or participated in the illegal activity, or saw evidence of illegal activity at a particular location, the issuing magistrate or judge may believe the informant has a reliable basis for the information he or she provides. Second, the affidavit may establish the informant’s basis of knowledge through police corroboration of details of the informant’s tip. Just as corroboration of details to establish the informant’s veracity must corroborate facts not readily available to the general public, so must corroboration to establish the informant’s basis of knowledge.22

ENDNOTES

1 State v. Perea, 1973-NMCA-123, ¶ 7, 85 N.M. 505, 513 P.2d 1287.

2 Id.; State v. Dietrich, 2009-NMCA-031, ¶ 6, 145 N.M. 733, 204 P.3d 733.

3 Perea, 1973-NMCA-123, ¶ 7; State v. Cordova, 1973-NMSC-083, ¶ 11, 109 N.M. 211, 784 P.2d 30. This two part test is often described as the “Aguilar-Spinelli test” in reference to the United States Supreme Court decisions in Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1968), which were adopted by the New Mexico Supreme Court in Cordova.

4 State v. Therrien, 1990-NMCA-060, ¶¶ 5-7, 110 N.M. 261, 794 P.2d 735.

5 State v. Steinzig, 1999-NMCA-107, ¶ 18 (quoting In re Shon Daniel K., 1998-NMCA-069, ¶ 12, 125 N.M. 219, 959 P.2d 553); accord State v. Knight, 2000-NMCA-016, ¶ 20, 128 N.M. 591, 995 P.2d 1033.

6 See State v. Cervantes, 1979-NMCA-029, ¶¶ 13-16, 92 N.M. 643, 593 P.2d 478.

7 See State v. Lujan, 1998-NMCA-032, ¶¶ 14-15, 124 N.M. 494, 953 P.2d 29. But see State v. Vest, 2011-NMCA-037, ¶ 18, 149 N.M. 548, 252 P.3d 772 (statement that informant has participated in past controlled buys is insufficient because it fails to state that the informant provided information that proved to be true).

8 See State v. Montoya, 1992-NMCA-067, ¶ 14, 114 N.M. 221, 836 P.2d 667.

9 Shon Daniel K., 1998-NMCA-069, ¶ 12; Steinzig, 1999-NMCA-107, ¶ 23.

10 Therrien, 1990-NMCA-060, ¶¶ 14-15.

11 Id.

12 Steinzig, 1999-NMCA-107, ¶ 23.

13 Id. ¶ 19.

14 Id. (citing State v. O’Connor, 692 P.2d 208, 213 (Wash.Ct.App. 1984)).

15 See Steinzig, 1999-NMCA-107, ¶¶ 19-23.

16 Id. ¶¶ 21-22 (citing State v. Hasselback, 637 P.2d 1316, 1319 (Or. Ct. App. 1981) and State v. Hall, 766 P.2d 512, 514-15 (Wash. Ct. App. 1989)).

17 Knight, 2000-NMCA-016, ¶ 22.

18 Shon Daniel K., 1998-NMCA-069, ¶ 12.

19 Knight, 2000-NMCA-016, ¶ 21.

20 Cordova, 1973-NMSC-083, ¶¶ 21-24.

21 State v. Barker, 1992-NMCA-117, ¶ 5, 114 N.M. 589, 835 P.2d 839; Lujan, 1998-NMCA-032, ¶ 8.

22 State v. Baca, 1982-NMSC-016, ¶ 12, 97 N.M. 379, 640 P.2d 485; State v. Donaldson, 1983-NMCA-064, ¶ 14, 100 N.M. 111, 666 P.2d 1258.