Using a Confidential Informant to Arrest a Suspect

I’m not the Guy you Want.

Many of the drug cases that I handle involve the Police using a confidential informant (or CI) as part of the investigation. A confidential informant is typically an individual who has been arrested for a separate crime and in exchange for favorable treatment, agrees to give information, participate in the investigation, and in many instances, be the key player in the crime that leads to your arrest.

A typical fact pattern is as follows:

Johnny gets caught with an ounce of pot. The police say to him “We will help you out if you help us out. Who do you know that sells drugs.” Johnny tells them and then agrees to go and buy drugs from that person. He does so on several occasions. This is called a controlled buy. After several controlled buys, the police make an application for a warrant to search the suspect’s home. They get that warrant based on the information that the CI provides and the successful controlled buys.

The home is searched and drugs are found. The suspect is charged with drug distribution.

The identity of the confidential informant is rarely revealed. In fact, the law is very protective of the identity of a CI and only requires that this identity by exposed under certain circumstances. And even then, the law states that the CI’s testimony if ordered can only be required at trial under most circumstances.

There are exceptions, as stated, to the general rule that the identity remains secret. For example, in my example above, if we change the facts slightly to say that the suspect was arrested because we arranged for the CI to buy a gun from him, and we arrested him on the spot. This means that the CI was directly involved in the crime that led to the arrest. This is different than being involved in the development of probable cause for arrest.

Another exception is when the identity of the CI is revealed by the state. This doesn’t mean that you know who he is. This means that the State screwed up an inadvertently revealed it. For example, if the name appeared in a police report. Just because you may know who it is, does not mean that the State disclosed it.

There are other exceptions as well. I have filed many motions to disclose the identity of a CI. Not all have been successful, but in the cases where it has been, it frequently results in a dismissal or significant downgrade. The State does not like to reveal them, especially if they are good at what they do.

If you have been arrested and suspect that a CI was used by the Police during the investigation, it would benefit you you get as much information as you can about it. If the chips fall the right way, it could result in the dismissal of your case or other very good outcomes.