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Search and Seizure for Police and Prosecutors

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Citizen-Informants

 

This is an outline designed to be used as a checklist to assist the user in drafting an affidavit for a search warrant when information from a citizen informant (usually a victim or witness of a crime) is used as a basis for probable cause. It is always best to provide as many items on the checklist as possible.

  1. Provide details to show status and reliability of the informant.
    1. Identify informant as a witness to a crime or victim of a crime.
      (Provide as many of the following as possible.)

      1. What the informant saw or heard,
      2. How affiant came into contact with informant; include whether informant voluntarily approached police,
      3. Informant’s name,
      4. If the informant’s name cannot be given for some reason, state all of the following:
        1. whether affiant knows the informant’s name,
        2. why informant’s name is not given in affidavit,
        3. whether informant is being paid for the information.
        4. whether informant is avoiding prosecution by giving information.
        5. what steps were taken to verify that there were no criminal charges pending against informant when informant gave information.
        6. provide any additional information to show informant is telling the truth and should be believed.
      5. Any other important circumstances about informant, including any relationship to or involvement in the criminal activity.
    2. Describe 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 that 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.
  2. Establish the basis of the informant’s knowledge of 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 observations
        1. Provide exact date and time, or
        2. Establish that the observation was made within a certain number of hours, days or weeks prior to the application for search warrant.
    2. ORDescribe 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.
Provide details to show the status and reliability of the informant.

Persons who are witnesses or victims of a crime are presumed to be reliable.1 Their reliability may be established by the mere fact that they were willing to approach an official with information.2 The presumption of reliability is stronger if the informant is named in the affidavit.3 Even if the informant is not named, the affidavit is sufficient if it states that the affiant knows the informant’s identity, explains the reason for not disclosing the identity, and provides facts establishing the informant’s status in the affidavit.4

An affidavit is not sufficient if it merely asserts that the informant is a “citizen- informant”; the affidavit must set forth sufficient facts to allow the magistrate to determine that the informant qualifies as a citizen-informant—rather than a paid informant or a person providing information to avoid criminal prosecution.5 Conclusory statements that the informant is not working off criminal charges, or not receiving payment or preferential treatment, are not sufficient; the affidavit should set forth an explanation of what steps were taken to verify the assertions that there is no payment and there are no criminal charges pending.6

Citizen-informants are presumed reliable because it is assumed their motivation is to assist officers in carrying out their law enforcement duties.7 The presumption of reliability may not hold if the facts suggest otherwise. If the facts suggest that the informant was involved in the criminal activity reported, the presumption may vanish.8 Similarly, the relationship between the informant and the person informed against may deprive the informant of the presumption of reliability if that relationship suggests that the informant has an ax to grind or some motive to get the other person into trouble.9 For example, if the informant is an estranged husband involved in a custody dispute, that relationship may prevent the husband from being presumed reliable when providing information that his wife is involved in criminal activity.

Establish the basis of the informant’s knowledge of the information.

The affidavit must establish the basis of the citizen-informant’s knowledge, providing sufficient information to allow the magistrate judge to evaluate whether the information was gathered in a reliable way.10 Information from a victim or witness of a crime ordinarily is based on personal observation, which provides a sufficient basis of knowledge.11 The affidavit should set forth when and how the informant made the observations clearly enough to show they are based on the informant’s first-hand knowledge rather than mere rumor (e.g., the informant saw X, the informant heard X); a conclusory statement that the informant “had personal knowledge” is not sufficient.12 However, even without an explicit statement of the informant’s basis of knowledge, an affidavit may be sufficient if it describes the criminal activity in such detail to allow a reasonable inference that the informant had obtained the information in a reliable way and was not relying on mere rumor or on the suspect’s general reputation.13 The affidavit may also 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.14

 

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.