Controlled Buy

This outline is designed to be used as a checklist for guidance in preparing an affidavit in support of a search warrant based on a controlled buy. A controlled buy is a specific type of confidential informant (CI) investigation. The more details provided, the stronger the showing of probable cause, so provide as many details from the checklist as possible.

Establish the factual basis for the information (basis of knowledge) by describing the controlled buy.
1. Describe the information leading to attempted buy.
  (provide information required for source of information – see relevant checklists, e.g., Confidential Informants, Citizen Informants, etc.)
2. Describe the steps taken during the controlled buy.
  1. Prior to buy, affiant searched CI—no drugs or money found.
  2. Affiant gave CI money and observed CI enter and exit place to be searched (state how long CI was inside premises).
  3. Affiant obtained drugs or other contraband from CI (state amount of time lapsed since the buy).
  4. CI informed affiant the drugs or other contraband was purchased from a person (named or described) at the place to be searched.
  5. CI informed affiant that CI observed more drugs or other contraband at the place to be searched or on the suspect.
Establish the credibility (veracity) of the buyer (CI).
1. Establish the knowledge and experience of CI in identifying drugs or contraband to be seized.
  1. Establish that CI is drug user, has record of convictions for drug use or possession.
  2. Describe CI’s training or experience relating to identification of type of item to be seized (e.g., familiar with heroin packaging).
2. Describe the track record of the CI, if any.
  1. State how many times CI has provided information in the past
  2. Describe the results of the past information (conviction, arrest, etc.)

Establish the factual basis for the information by describing the controlled buy.

First-hand observation by a reliable informant meets the “basis of knowledge” prong of the Aguilar–Spinelli test.¹ In a controlled buy, the informant’s first-hand observation of contraband drugs is sufficient alone to establish the informant’s basis of knowledge.² This assumes the affidavit recites a controlled buy, meaning the informant was searched prior to entering the location and had no drugs but did have money, the informant was observed exiting the location a short time later, was intercepted and reported buying drugs, as confirmed by a search of the informant’s person which yields the drugs.³

The staleness of the information is only relevant to the degree it helps determine whether probable cause to search exists when the affidavit is submitted to the magistrate; establishing a lack of bad faith or justification for the delay in presenting the information to the magistrate is not unnecessary, because it is not relevant to the existence of present probable cause.⁴ Since drugs are an item usually disposed of quickly, recent personal observation of drugs or information showing ongoing sales activity at the location is required in order to draw the reasonable inference of present probable cause.⁵

Establish the credibility (veracity) of the buyer (confidential informant).

There must be information in the affidavit which establishes the buyer’s credibility or veracity.⁶ The buyer may be inherently credible, as with a police officer purchase.⁷ Without a showing of the informant’s inherent credibility, the affidavit must include facts which show reliability on this occasion, as with a proven track record of accurate information on past occasions. Credibility may also be established by establishing that the information includes a statement against the buyer’s penal interest which is closely linked to the information about the evidence to be seized.⁸ In addition, the accuracy of information about illegal drugs is enhanced by information showing the buyer’s familiarity with the drug, as when the buyer is a known or admitted user of the drug.⁹

^ENDNOTES

1 State v. Barker, 1992-NMCA-117, ¶ 5, 114 N.M. 589, 844 P.2d 839.

2 State v. Lujan, 1998-NMCA-032, ¶ 8, 124 N.M. 494, 953 P.2d 29.

3 Id. ¶ 12.

4 State v. Pargas, 1997-NMCA-110, ¶ 23, 124 N.M. 249, 946 P.2d 267.

5 State v. Lovato, 1994-NMCA-042, ¶ 10, 118 N.M. 155, 879 P.2d 787; State v. Rubio, 2002-NMCA-007, ¶ 8, 131 N.M. 479, 39 P.3d 144.

6 State v. Cordova, 1989-NMSC-083, ¶ 11, 109 N.M. 211, 784 P.2d 30.

7 Barker, 1992-NMCA-117, ¶¶ 6, 14.

8 Lujan, 1998-NMCA-032, ¶¶ 14-15; Barker, 1992-NMCA- 117, ¶ 7; State v. Vest, 2011-NMCA-037, ¶ 14, 149 N.M. 548, 252 P.3d 772.

9 Lujan, 1998-NMCA-032, ¶ 8.