Police can rely upon information from confidential informants and other unnamed sources in criminal investigations and search-warrant applications. The fact that an informant is unnamed does not automatically invalidate a warrant. But the defense should examine exactly what the informant supposedly knew, how the informant obtained that information, what police did to corroborate it, how current the information was, and what the warrant affidavit actually told the magistrate about the source and the investigation.
An Unnamed Informant Can Contribute to Probable Cause
A search warrant is not automatically invalid merely because some information came from a confidential or unnamed source. Police are not required to disclose an informant's identity in every warrant affidavit.
The relevant question is whether the information presented to the magistrate, considered under the governing probable-cause standard and the circumstances described in the affidavit, was legally sufficient to establish probable cause. An unnamed source's information can contribute to that analysis.
The defense should not assume that the label "confidential informant" eliminates the need for careful examination of what that informant actually knew and what police corroborated.
What Did the Informant Actually Claim?
Begin the analysis with the substance of the information. The affidavit may describe confidential informant information in general or specific terms.
Ask:
What did the informant supposedly see, hear, purchase, receive, or learn? When did that occur? Where did it occur? Was the information based upon personal observation or information from somebody else? How specifically was the accused person identified? How specifically was the location to be searched identified?
Vague conclusions and detailed firsthand descriptions may present very different probable-cause considerations. An affidavit stating "CI has information about drugs" differs substantially from "CI entered residence at [address], observed drugs on table, and provided sample."
How Did the Informant Know?
The defense should examine the informant's asserted basis of knowledge. This is a critical distinction because it affects the weight given to the information.
Did the informant claim to:
Personally observe drugs or other evidence? Participate in a transaction? Enter a particular residence? Communicate directly with the suspect? Observe a weapon or activity? Receive information from another person? Infer criminal activity from circumstances?
The affidavit should be read carefully to distinguish what the informant supposedly knew personally from what investigators inferred or concluded. Firsthand observation presents different probable-cause issues than hearsay or inference.
Why Did Police Believe the Informant?
The defense should examine what the affidavit tells the magistrate about the reliability or credibility of the source and the information supplied. The affidavit may describe matters intended to establish the informant's trustworthiness.
Depending upon the investigation, the affidavit may reference:
Prior information supplied by the source that proved accurate; prior assistance to law enforcement; corroboration by police of current information; statements against the source's interests; detailed predictive or factual information supplied by the source; controlled investigative activity involving the source; or other circumstances investigators contend support reliability.
Do not create a rigid checklist or suggest that any single factor is always required. The defense should examine what the affidavit actually presented.
Police Corroboration Can Be Critical
One of the most important questions is: What did police independently do after receiving the informant's information? Corroboration is not a single fact but a series of investigative steps.
Police corroboration may include:
Surveillance of the location; surveillance of individuals; database or records checks; vehicle identification and registration checks; confirmation of addresses; observation of people entering or leaving; controlled purchases; recorded communications; photographs or video; conversations with additional witnesses; informant calls or activities; or other investigative steps.
Important distinction: corroboration of innocent details does not necessarily equal corroboration of alleged criminal activity. Police may corroborate that the informant was at a location or that a vehicle exists, while the alleged criminal activity remains unverified. The defense should determine precisely what police actually corroborated and what remained based solely on the informant's account.
Controlled Buys
Drug investigations frequently rely upon alleged controlled purchases involving confidential informants. The phrase "controlled buy" can mask highly varied procedural realities. The defense should reconstruct the procedure rather than simply accepting the label.
Depending upon the case, examine:
Was the informant searched before the transaction? Was money supplied by police and documented? Was the informant continuously observed by officers? Was audio or video recorded of the transaction? Did officers lose sight of the informant? Who entered the location? What happened after the transaction? Was the informant searched afterward? What substance was returned to police? Was it field tested or sent to a laboratory? How was the evidence documented and preserved?
Do not assume that every controlled buy must follow one identical procedure to be legally sufficient. But do examine what actually happened versus what the affidavit claims.
The Informant's Identity and the Informant's Information Are Different Questions
Whether the defense is entitled to learn the identity of a confidential informant presents a different legal question from whether information attributed to the informant contributed to probable cause for a search warrant.
The rules concerning disclosure of an informant's identity may depend upon:
The informant's role in the investigation; whether the informant is a witness or merely a source; the issues in the case; applicable privilege law; constitutional requirements; statutory protections; and other circumstances.
Do not assume defendants are always entitled to the identity of a confidential informant. Do not assume the government can never be required to disclose an informant. The disclosure question is complex and depends upon the specific facts and applicable law.
Informant Information Can Become Stale
Timing matters significantly in search-warrant analysis. The passage of time can affect whether information justifies a search.
Ask:
When did the informant supposedly observe the evidence or activity? When did the informant tell police? When did police corroborate the information? How long after corroboration was the warrant requested? Why did officers believe the evidence would still be at the location?
The significance of time depends upon the nature of the alleged activity. A controlled drug buy conducted yesterday may establish current probable cause. An informant's claim about drug activity at a location weeks or months earlier may require additional corroboration showing ongoing activity. The affidavit should be examined for what it actually said about the timing.
The Informant Must Still Connect the Evidence to the Place Searched
Information suggesting a person is involved in criminal activity does not necessarily answer why evidence will be found in a particular residence, vehicle, room, device, or other location.
Ask:
What did the informant say about this particular place? Did the informant actually enter it? Did the informant see evidence there? When? What independent evidence connected the location to the alleged activity?
Link directly to the existing article: "Nexus: What Connects the Evidence to the Place Police Want to Search?"
Nexus analysis applies whether the warrant relies upon confidential informant information or any other source.
Compare the Affidavit With the Discovery
A critical Taylor Defense methodology is to compare representations about the confidential informant with the evidence law enforcement actually produced.
Depending upon the case, that may include:
Surveillance reports and photographs; body-camera footage; dash-camera footage; controlled-buy documentation and recordings; evidence logs; laboratory reports; dispatch/CAD records; officer reports; search-warrant materials and timestamps; cellphone or digital records; witness statements; or other discovery.
Ask whether the discovery corroborates the chronology and investigative steps described in the affidavit. Does the dispatch log match the affidavit's timeline? Do surveillance photos support the affidavit's description? Is the controlled-buy evidence documented as described?
False Statements or Material Omissions About an Informant
A different issue may arise if evidence suggests that material representations in the warrant affidavit concerning an informant, the informant's observations, police corroboration, or investigative procedures were false or materially incomplete.
Link directly to: "False Information in a Search-Warrant Affidavit: The Basics of a Franks Challenge."
Discrepancies do not automatically establish a Franks violation. The applicable requirements concerning false statements, material omissions, culpability, materiality, and entitlement to an evidentiary hearing must be separately established.
Examples of potential Franks issues involving informants might include: misrepresenting the informant's prior reliability; falsely claiming corroboration occurred; misstating the timeline of events; or omitting material information about the investigation.
The Magistrate Can Consider Only What Was Properly Presented
When reviewing the warrant, the defense should distinguish carefully between:
What investigators may have known somewhere in their files or database, and what information was actually presented to the magistrate in support of the warrant.
Link to: "Probable Cause and the Search-Warrant Affidavit: What Did the Judge Actually Know?"
Information discovered later, explained later, or located in police records does not rewrite what the affidavit said when judicial authorization was requested. The defense analyzes what the magistrate was actually told.
"A Confidential Informant Told Us" Is the Beginning of the Analysis
When a warrant depends upon confidential-informant information, the defense should ask comprehensive questions:
What exactly did the informant say? How did the informant supposedly know it? When did the informant learn it? What did police independently corroborate? Was there a controlled buy, and what actually happened during it? What connected the alleged evidence to the particular place searched? What did the affidavit tell the magistrate about reliability? Does the discovery support the affidavit's description of the investigation? Are there material discrepancies or omissions requiring further examination?
Confidential informants can play a legitimate and important role in police investigations. But when their information supplies probable cause for a search warrant, the defense should examine the information, corroboration, chronology, nexus, and affidavit rather than treating the words "confidential informant" as a substitute for thorough analysis.