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Banned
Join Date: Jan 2007
Posts: 732
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Quote:
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Originally Posted by suburbanhomeboy
Thanks but I really couldn't find the answer. I'll kepp looking.
Cheers,
SH
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Here you go man, I guess it is a big site.
I would go through it though, plenty more information than just this.
Peace.
Quote:
A. SEARCH WARRANTS – THE KEY TO YOUR DOOR
1. Home Hygiene
As you will see from what is written below, it’s not that hard to get a search warrant for a private residence. If that happens, you had better hope that there is no money, no guns, no needles or hard drugs, no financial records or records of safe deposit boxes, no links to your associates in the marijuana industry, no evidence of prior grows or unexplained wealth and no fancy toys. It’s also nice if there are no “indicia of dealing” such as scales, baggies, lists of who owes what, diaries of past grows or past deals, letters between associates, or instructions to helpers or distributors. See Appendix A for a government-generated list of what cops consider “indicia of dealing.”
If you are growing in the same house with your legal gun collection, or where your spouse, your mother, or your children reside, you are already two strikes down. Guns and vulnerable victims give the police way too much leverage – sometimes so much that you will even be forced to give up valid defenses rather than risk the enhanced penalties that guns bring, or the suffering and torture that will surely befall you loved ones if you have allowed them to get in harm’s way.
If you are breaking any of these rules, be sure to put away quite a bit of extra money for your lawyer, your family’s lawyer, and your family’s support while you are away for a long time. Meanwhile, here is some information about search warrants, how police get them, and what you can do about them.
2. The Sacred Function of the Search Warrant
The home is the last place where the law still provides some degree of privacy. If the crime is being committed in your home, police will probably need a search warrant to get in and find it. Even the smell of marijuana detected by an officer when s/he knocks on your door and you foolishly open it does not allow police to enter your home without a warrant. Exceptions to this rule will be discussed later, under “warrantless searches.”
The law of search and seizure is all about privacy. Remarkably, although polls suggest that this is one of the most highly valued rights among American citizens, most voters seem to accept radical changes in the rules of privacy which can only be viewed as placing that fundamental right on the endangered species list.
According to the United States Constitution, police may not enter and search a private residence or its “curtilage” (except for the unblocked path to the front door) without prior judicial approval in the form of a search warrant. How do they get these warrants?
Although every now and then police actually stumble on a grow without help, (even a blind chipmunk occasionally stumbles on an acorn), nearly all search warrants come from tips. Sources of tips – informants – come in infinite forms. Informants are much more prevalent in the marijuana trade than in other situations, since most marijuana growers are non-violent and wisely refuse to treat informers in ways that are customary if not mandatory when it comes to other crimes. This benign attitude allows many to make highly paid careers out of rooting out and turning in (sometimes after ripping off) grow rooms.
Anyone who spends much time around the criminal justice system knows that the United States has reversed its moral compass on this issue. Informants have been universally detested throughout history. We all remember Judas. Dante reserved the innermost circle of Hell for informants. Benedict Arnold was the eponym for the lowest form of biped life in all of North America. Linda Tripp will be reviled for all of history. Yet today, informing is a major part of the growth industry. Tax-free and inflation proof. Rewards in five to six figures are common. The government buys the testimony it wants/needs with freedom, cash and who knows what else. Without informants our justice system would grind to a halt like pulp mills without trees. But, I digress . . . . This is how the government gets the key to your door:
The Fourth Amendment to the United States Constitution, and the constitutions of the states all require, in some form or another, that searches of private places be conducted only where a neutral and detached magistrate or judge has concluded that probable cause exists to search, and has issued a search warrant. Search warrants are issued based upon sworn statements from law enforcement officers. The statement is usually in the form of an affidavit, but maybe a recorded telephone call to the judge. A search warrant based upon an affidavit that does not establish probable cause is not valid. This means that the evidence it produced should be suppressed – should not be admitted in court.
A “facial” challenge to a search warrant – usually a challenge to the adequacy of the facts contained within the “four corners” of the affidavit – is usually essential in defending most marijuana grow cases. In many cases it is not only the front line of defense, it is the only defense. If the evidence comes in you’re convicted.
If you are desperate enough, you should be able to find an issue in virtually every search warrant. However, recent developments in Federal constitutional law leave application of the Fourth Amendment to these cases a largely academic endeavor. By this I mean errors, defects, or governmental misconduct that will result in actual suppression of the fruits of a search warrant under federal law are rare. If you are busted by the feds, you will need a specialist in federal search and seizure law to guide you through this contorted area of the law. By comparison, Alice in Wonderland seems simple and straight – forward.
Things are not quite so bleak in state court, where some jurists still remember the prophetic admonition of Mr. Justice Douglas:
We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals, nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted.
McDonald v. United States, 335 U.S. 451, 455-56, (1948).[3] In other words, for the process to work, the magistrate must be something more than a "rubber stamp" for the police who want to conduct a search.
3. Informants who will bust you: Sources of probable cause for search warrants
a. General information about informants:
Few indoor marijuana cultivation cases commence without an initial tip from an informant. Informants come in many categories. Any two-bit criminal who finds him/herself in trouble with the law can trade his cage for the freedom of a harmless pot outlaw. There are usually no consequences. They should be branded as traitors and banished from civilized society.
Some power company employees, who may be allowed to trespass in order to read meters or repair equipment, have made informing a second, (and more profitable) career.
The various shipping companies must all be viewed with suspicion. This writer has had many clients whose packages appeared “suspicious” to UPS (“Ur Privacy Sucks”) employees. Although they maintain regular relationships with law enforcement, and law enforcement frequently lectures them on what to look for, they are not considered agents of the government. That means they can open any package any time for any reason. If they find contraband, they contact the police, who then get a warrant – after the real search has taken place. But it’s O.K. They’re “private actors.” The constitution applies only to the government and its agents. The misconduct of private actors does not result in suppression of evidence.
What to do if busted by a “private” company? Bring them in. Using your discovery rights, expose the relationship between them and the police. Explore whether their conduct violates local laws or constitutions regarding the right of privacy. If it does, sue them. If their conduct violates local privacy laws, demand that they be prosecuted. Let the local public know that the company does not honor privacy.
Landlords are always a problem. If you conspire with them, they have too much to lose (their property) so they will often turn against you. If you don’t conspire with them, they’ll usually turn you in if they catch you. You have to use your ingenuity to deal with this situation. Just remember. They’re in it for the money.
Jealous, sanctimonious, or otherwise nosy neighbors bring down many a farm. Money doesn’t motivate them. Because they are often only anonymous sources that inspire the police to try to get a whiff, you never find out who they are. There’s not much you can do about them. But it never hurts to be a good neighbor.
And, of course, there is no informant so common as the rejected lover or business associate. If you made the mistake of sharing your private business with someone who later turns on you – well, so it goes. If you weren’t so greedy or lazy you’d have done it all by yourself and there would be no one to snitch you off.
Another problem is ego. Proud but vulnerable growers still haven't learned not to show off their work. This is a basic survival lesson: If, like most law-abiding pot growers, you are not ready to send quick, graphic messages to the informant community, your only choice (and the safer and wiser one) is to send them no messages at all. Zip your lips. Can you do it? If not, I seriously recommend keeping a short strip of duct tape in your purse or wallet. When you feel the urge to talk about your grow, pull the tape out and place it over your lips.
If that doesn’t work, and you become the victim of an informant, you’ll need some defenses. Here is a summary of the relevant law of informants:
Under the United States Constitution, the test for whether probable cause is established in a search warrant is an easy one for the police to meet. An informant’s tip is evaluated under the “totality of circumstances” test of Illinois v. Gates, 462 U.S. 213 (1983). Under this test, with minimal confirmation of a few innocuous facts in the tip, the police can secure a virtually airtight search warrant for a private residence based upon little more than the pointing of an anonymous finger.
Many state courts have rejected this rule, instead requiring that an informant’s tip must still satisfy the more structured two-prong “Aguilar-Spinelli”[4] test, which requires the affidavit which supports the search warrant to demonstrate both the informant’s basis of knowledge, and credibility. See, e.g., State v. Jones, 706 P.2d 317 (Alaska 1985) (relying on article 1, § 14 of the state constitution); State v. Jackson, 688 P.2d 136 (Wash. 1984) (article 1, § 9); State v. Horwedel, 674 P.2d 623 (Or.App. 1984) (Or. Rev. Stat. ' 133.545(3); Or. Const. article 1, § 9); State v. Kanda, 620 P.2d 623 (Haw. 1980) (article 1, § 7).
Then there’s the “good faith” exception to the exclusionary rule. If the warrant is later found to lack probable cause, if the officers relied on it in “good faith,” the evidence still comes in. If your state has not yet accepted this rule, your lawyer may get some use out of the brief on the subject I have attached as an appendix to this article.
Informants come in several different varieties. The credibility or reliability of informants must be established by facts in the affidavit, which would support the magistrate’s conclusion that the informant is telling the truth. The officer’s opinion that the informant is reliable is not enough. That the informant is named in the affidavit, disclosed to the judge, or, at least, known (and identified) by the affiant,[5] is significant. See, e.g., State v. Northness, 20 Wn. App. 551 (1978), (defining categories of informants).
b. The anonymous informant.
You will probably never find out who this is. His/her word is not sufficient to establish probable cause without more. State v. Bantum, 1 P.2d 861 (Wash. 1931). Thus the police will
have to do some work and provide some “corroboration” of the informant’s tip. If the target is a grow, police will go to the house. If the front porch is not protected against trespass they will come to the door to try to get a whiff. They will look for covered windows, suspicious vents, potting soil, and other indications of indoor gardening discussed below, and listed in the sample search warrant affidavit in Appendix A.
In these cases, the challenge by the defense will focus on the "corroboration" provided by the police to bolster the otherwise inadequate tip. Is it just innocuous? Is it really evidence of crime, or are the police just attaching suspicion to everyday common items and occurrences? This is dangerous in a free society. As the sage Captain Jean Luc Picard of the Starship Enterprise once observed, “the road from legitimate suspicion to rampant paranoia is very much shorter than we think.”
Don't always accept the word of the police when an anonymous informant is claimed. One clever defense investigator recently reviewed all search warrants done by a particular officer, (they should be a matter of public record), and established a pattern which proved that the officer's informant was nothing more than an "imaginary friend."
c. The citizen informant.
Citizen informants are ordinary citizens who stumble on or are the victims of a crime. Where probable cause relies on the word of non-professional "citizen" informants, the requirement of a showing of reliability is somewhat relaxed. Some allegations must nevertheless be made to show that it is a true "citizen" informant, who may then be presumed reliable. State v. Chatmon, 515 P.2d 530 (Wash. 1973), (police must still interview the informant and ascertain such background facts as would support the inference that he is reliable). The affidavit should reveal the reasons for the citizen informant being present at the scene of the crime, since most persons present where drugs are seen are criminals, not innocent citizens. State v. Rodriguez, 769 P.2d 309 (Wash. App. 1989). As Professor LaFave observed:
[C]ourts should be cautious in accepting the assertion that one who apparently was present when narcotics were used or displayed is a presumptively reliable citizen-informer . . . . [T]his is because as a general proposition it is an informant from the criminal milieu rather than a law-abiding citizen who is most likely to be present under such circumstances. This is not to suggest that a person giving information about the location of narcotics may never qualify as a citizen-informer, for it is sometimes possible to show with particularity how a law-abiding individual happened to come upon such knowledge.
1 LaFave SEARCH AND SEIZURE (1987), at 728. (Emphasis supplied).
State v. Ibarra, 61 Wn. App 695 (1991), is hopeful. This case reiterates the Northness categories of informants, observing that "the concern that the informant information may be coming from an anonymous troublemaker remains when the citizen informant is unidentified. Therefore, the State's burden of demonstrating the credibility of a citizen informant is not necessary lightened when the informant remains unidentified to the magistrate." 61 Wn. App. 699. This case holds that the reliability/credibility of the alleged "citizen informant" was not established, particularly because the reason why the informant was at the scene of the crime/location of the crime was not given. The case holds that a generic recitation of the officer's conclusions is not sufficient to raise the requisite inference that the informant had a valid reason for wishing to remain anonymous.
d. The “criminal milieu” informant.
Some courts recognize the reality that informants from the "criminal milieu" –criminals in plain English -- are likely to lie and should be presumed unreliable: "It is to be expected that the [criminal] informer will not infrequently reach for shadowy leads, or even seek to incriminate the innocent." Jones v. United States, 266 F.2d 924, 928 (D.C. Cir. 1959).
Law enforcement officials and prosecutors are at least privately aware of the likelihood that criminals will lie to stay out of trouble. For example, the Hon. Stephen Trott, when he was in charge of the criminal division at the United States Department of Justice wrote:
Criminals are likely to say and do almost anything to get what they want, especially when what they want is to get out of trouble with the law. In my personal firsthand experience of over 18 years as a prosecutor, this willingness to do anything includes not only truthfully spilling the beans on friends and relatives, but also manufacturing evidence, soliciting others to corroborate their lies with more lies, double-crossing anyone with whom they come into contact, including - and especially - the prosecutor. A drug addict can sell out his mother to get a deal; and burglars, robbers, murderers and thieves are not far behind. They are remarkably manipulative and skillfully devious. Many are outright conscienceless sociopaths to whom "truth" is a wholly meaningless concept. To some 'conning' people is a way of life. Others are just basically unstable people.
Trott, The Successful Use of Snitches, Informants, Co-Conspirators, and Accomplices as Witnesses for the Prosecution in a Criminal Case 2, (United Sates Justice Department 1984). Mr. Trott is now a judge on the United States Court of Appeals for the Ninth Circuit. His updated article was recently published at 47 Hastings L.J. 1381. The title is Words of Warning for Prosecutors Using Criminals as Witnesses.. He has recently reiterated these same feelings in a written opinion. United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir. 3/29/93), addresses credibility of informants as trial witnesses: “Our judicial history is speckled with cases where informants falsely pointed the finger of guilt at suspects and defendants, creating the risk of sending innocent persons to prison.” See also, Zeese, How Prosecutors Use Informants, 1 DRUG L. REP 130-31 (Sept.-Oct. 1984).
Bernal-Obeso is the exception. Courts have demonstrated rare ingenuity in developing theories by which to support the veracity of these inherently unreliable sources of information. The police may rely on, among others, the following common methods of showing the veracity of the criminal informant:
(1) A "track record" of virtually any prior cooperation with the police. This should not be interpreted to mean that if an informant predicted the sun would rise, and then it did, his word may now be presumed reliable. State v. Fisher, 639 P.2d 743 (Wash. 1982), but see, dissent. Note that a "controlled buy" should not establish reliability unless the affidavit alleges the informant claimed he could buy at that location, and then did. State v. Casto, 692 P.2d 890 (Wash. App. 1984); State v. Steenerson, 688 P.2d 544 (Wash. App. 1984).
(2) A “statement against penal interest,” State v. O'Connor, 692 P.2d 208 (Wash. App. 1984). The theory is that when people admit to crimes, it must be true. This theory should not be applied where it doesn't fit (although it often is). The statement must be genuinely against penal interest. Note here that the naming of the informant in the affidavit is not a passport to reliability; rather, it is a prerequisite to a finding that a statement against penal interest supports an inference of reliability. 1 W. LaFave, SEARCH AND SEIZURE, at 644. This exception should not be used to make a person who confesses to some crime a more reliable source of information than an honest citizen.
(3) The informant is highly motivated to provide accurate information, and will not lightly lead police down blind alleys. State v. Bean, 572 P.2d 1102 (Wash. 1978); State v. Estorga, 893 P.2d 813 (Wash. 1991); these cases showcase judicial logic at its thinnest. A criminal caught red-handed who then makes a deal is presumed to be reliable? This is dangerously dishonest logic. Often "prospecting" -- law enforcement's own term for leading police down blind alleys in the hope of getting lucky and finding something incriminating -- is an informant's only hope.
(4) Merely giving the name of the informant does not establish reliability. State v. Sieler, 621 P.2d 1272 (Wash. 1980).
Many search warrants for indoor grows rely almost entirely on the word of a criminal milieu informant. Where the "full-court press" is necessary to the defense of the case investigative opportunities here are many. When dealing with a criminal milieu informant, the lawyer should check possible suspects for recent arrests or convictions. Where there are no clues, check search warrants[6] in the same jurisdiction for similar warrants or warrants by the same officer. Then interview other targets of similar searches to see if one name of a suspected informant comes up twice. Then interview that one. Often the informant will have been materially misquoted. Perhaps he first misled the police before deciding to "tell the truth" about your client. There’s always something there of value. Of course, never interview informants alone!industry, no evidence of prior grows or unexplained wealth and no fancy toys. It’s also nice if there are no “indicia of dealing” such as scales, baggies, lists of who owes what, diaries of past grows or past deals, letters between associates, or instructions to helpers or distributors. See Appendix A for a government-generated list of what cops consider “indicia of dealing.”
If you are growing in the same house with your legal gun collection, or where your spouse, your mother, or your children reside, you are already two strikes down. Guns and vulnerable victims give the police way too much leverage – sometimes so much that you will even be forced to give up valid defenses rather than risk the enhanced penalties that guns bring, or the suffering and torture that will surely befall you loved ones if you have allowed them to get in harm’s way.
If you are breaking any of these rules, be sure to put away quite a bit of extra money for your lawyer, your family’s lawyer, and your family’s support while you are away for a long time. Meanwhile, here is some information about search warrants, how police get them, and what you can do about them.
2. The Sacred Function of the Search Warrant
The home is the last place where the law still provides some degree of privacy. If the crime is being committed in your home, police will probably need a search warrant to get in and find it. Even the smell of marijuana detected by an officer when s/he knocks on your door and you foolishly open it does not allow police to enter your home without a warrant. Exceptions to this rule will be discussed later, under “warrantless searches.”
The law of search and seizure is all about privacy. Remarkably, although polls suggest that this is one of the most highly valued rights among American citizens, most voters seem to accept radical changes in the rules of privacy which can only be viewed as placing that fundamental right on the endangered species list.
According to the United States Constitution, police may not enter and search a private residence or its “curtilage” (except for the unblocked path to the front door) without prior judicial approval in the form of a search warrant. How do they get these warrants?
Although every now and then police actually stumble on a grow without help, (even a blind chipmunk occasionally stumbles on an acorn), nearly all search warrants come from tips. Sources of tips – informants – come in infinite forms. Informants are much more prevalent in the marijuana trade than in other situations, since most marijuana growers are non-violent and wisely refuse to treat informers in ways that are customary if not mandatory when it comes to other crimes. This benign attitude allows many to make highly paid careers out of rooting out and turning in (sometimes after ripping off) grow rooms.
Anyone who spends much time around the criminal justice system knows that the United States has reversed its moral compass on this issue. Informants have been universally detested throughout history. We all remember Judas. Dante reserved the innermost circle of Hell for informants. Benedict Arnold was the eponym for the lowest form of biped life in all of North America. Linda Tripp will be reviled for all of history. Yet today, informing is a major part of the growth industry. Tax-free and inflation proof. Rewards in five to six figures are common. The government buys the testimony it wants/needs with freedom, cash and who knows what else. Without informants our justice system would grind to a halt like pulp mills without trees. But, I digress . . . . This is how the government gets the key to your door:
The Fourth Amendment to the United States Constitution, and the constitutions of the states all require, in some form or another, that searches of private places be conducted only where a neutral and detached magistrate or judge has concluded that probable cause exists to search, and has issued a search warrant. Search warrants are issued based upon sworn statements from law enforcement officers. The statement is usually in the form of an affidavit, but maybe a recorded telephone call to the judge. A search warrant based upon an affidavit that does not establish probable cause is not valid. This means that the evidence it produced should be suppressed – should not be admitted in court.
A “facial” challenge to a search warrant – usually a challenge to the adequacy of the facts contained within the “four corners” of the affidavit – is usually essential in defending most marijuana grow cases. In many cases it is not only the front line of defense, it is the only defense. If the evidence comes in you’re convicted.
If you are desperate enough, you should be able to find an issue in virtually every search warrant. However, recent developments in Federal constitutional law leave application of the Fourth Amendment to these cases a largely academic endeavor. By this I mean errors, defects, or governmental misconduct that will result in actual suppression of the fruits of a search warrant under federal law are rare. If you are busted by the feds, you will need a specialist in federal search and seizure law to guide you through this contorted area of the law. By comparison, Alice in Wonderland seems simple and straight – forward.
Things are not quite so bleak in state court, where some jurists still remember the prophetic admonition of Mr. Justice Douglas:
We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals, nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted.
McDonald v. United States, 335 U.S. 451, 455-56, (1948).[3] In other words, for the process to work, the magistrate must be something more than a "rubber stamp" for the police who want to conduct a search.
3. Informants who will bust you: Sources of probable cause for search warrants
a. General information about informants:
Few indoor marijuana cultivation cases commence without an initial tip from an informant. Informants come in many categories. Any two-bit criminal who finds him/herself in trouble with the law can trade his cage for the freedom of a harmless pot outlaw. There are usually no consequences. They should be branded as traitors and banished from civilized society.
Some power company employees, who may be allowed to trespass in order to read meters or repair equipment, have made informing a second, (and more profitable) career.
The various shipping companies must all be viewed with suspicion. This writer has had many clients whose packages appeared “suspicious” to UPS (“Ur Privacy Sucks”) employees. Although they maintain regular relationships with law enforcement, and law enforcement frequently lectures them on what to look for, they are not considered agents of the government. That means they can open any package any time for any reason. If they find contraband, they contact the police, who then get a warrant – after the real search has taken place. But it’s O.K. They’re “private actors.” The constitution applies only to the government and its agents. The misconduct of private actors does not result in suppression of evidence.
What to do if busted by a “private” company? Bring them in. Using your discovery rights, expose the relationship between them and the police. Explore whether their conduct violates local laws or constitutions regarding the right of privacy. If it does, sue them. If their conduct violates local privacy laws, demand that they be prosecuted. Let the local public know that the company does not honor privacy.
Landlords are always a problem. If you conspire with them, they have too much to lose (their property) so they will often turn against you. If you don’t conspire with them, they’ll usually turn you in if they catch you. You have to use your ingenuity to deal with this situation. Just remember. They’re in it for the money.
Jealous, sanctimonious, or otherwise nosy neighbors bring down many a farm. Money doesn’t motivate them. Because they are often only anonymous sources that inspire the police to try to get a whiff, you never find out who they are. There’s not much you can do about them. But it never hurts to be a good neighbor.
And, of course, there is no informant so common as the rejected lover or business associate. If you made the mistake of sharing your private business with someone who later turns on you – well, so it goes. If you weren’t so greedy or lazy you’d have done it all by yourself and there would be no one to snitch you off.
Another problem is ego. Proud but vulnerable growers still haven't learned not to show off their work. This is a basic survival lesson: If, like most law-abiding pot growers, you are not ready to send quick, graphic messages to the informant community, your only choice (and the safer and wiser one) is to send them no messages at all. Zip your lips. Can you do it? If not, I seriously recommend keeping a short strip of duct tape in your purse or wallet. When you feel the urge to talk about your grow, pull the tape out and place it over your lips.
If that doesn’t work, and you become the victim of an informant, you’ll need some defenses. Here is a summary of the relevant law of informants:
Under the United States Constitution, the test for whether probable cause is established in a search warrant is an easy one for the police to meet. An informant’s tip is evaluated under the “totality of circumstances” test of Illinois v. Gates, 462 U.S. 213 (1983). Under this test, with minimal confirmation of a few innocuous facts in the tip, the police can secure a virtually airtight search warrant for a private residence based upon little more than the pointing of an anonymous finger.
Many state courts have rejected this rule, instead requiring that an informant’s tip must still satisfy the more structured two-prong “Aguilar-Spinelli”[4] test, which requires the affidavit which supports the search warrant to demonstrate both the informant’s basis of knowledge, and credibility. See, e.g., State v. Jones, 706 P.2d 317 (Alaska 1985) (relying on article 1, § 14 of the state constitution); State v. Jackson, 688 P.2d 136 (Wash. 1984) (article 1, § 9); State v. Horwedel, 674 P.2d 623 (Or.App. 1984) (Or. Rev. Stat. ' 133.545(3); Or. Const. article 1, § 9); State v. Kanda, 620 P.2d 623 (Haw. 1980) (article 1, § 7).
Then there’s the “good faith” exception to the exclusionary rule. If the warrant is later found to lack probable cause, if the officers relied on it in “good faith,” the evidence still comes in. If your state has not yet accepted this rule, your lawyer may get some use out of the brief on the subject I have attached as an appendix to this article.
Informants come in several different varieties. The credibility or reliability of informants must be established by facts in the affidavit, which would support the magistrate’s conclusion that the informant is telling the truth. The officer’s opinion that the informant is reliable is not enough. That the informant is named in the affidavit, disclosed to the judge, or, at least, known (and identified) by the affiant,[5] is significant. See, e.g., State v. Northness, 20 Wn. App. 551 (1978), (defining categories of informants).
b. The anonymous informant.
You will probably never find out who this is. His/her word is not sufficient to establish probable cause without more. State v. Bantum, 1 P.2d 861 (Wash. 1931). Thus the police will
have to do some work and provide some “corroboration” of the informant’s tip. If the target is a grow, police will go to the house. If the front porch is not protected against trespass they will come to the door to try to get a whiff. They will look for covered windows, suspicious vents, potting soil, and other indications of indoor gardening discussed below, and listed in the sample search warrant affidavit in Appendix A.
In these cases, the challenge by the defense will focus on the "corroboration" provided by the police to bolster the otherwise inadequate tip. Is it just innocuous? Is it really evidence of crime, or are the police just attaching suspicion to everyday common items and occurrences? This is dangerous in a free society. As the sage Captain Jean Luc Picard of the Starship Enterprise once observed, “the road from legitimate suspicion to rampant paranoia is very much shorter than we think.”
Don't always accept the word of the police when an anonymous informant is claimed. One clever defense investigator recently reviewed all search warrants done by a particular officer, (they should be a matter of public record), and established a pattern which proved that the officer's informant was nothing more than an "imaginary friend."
c. The citizen informant.
Citizen informants are ordinary citizens who stumble on or are the victims of a crime. Where probable cause relies on the word of non-professional "citizen" informants, the requirement of a showing of reliability is somewhat relaxed. Some allegations must nevertheless be made to show that it is a true "citizen" informant, who may then be presumed reliable. State v. Chatmon, 515 P.2d 530 (Wash. 1973), (police must still interview the informant and ascertain such background facts as would support the inference that he is reliable). The affidavit should reveal the reasons for the citizen informant being present at the scene of the crime, since most persons present where drugs are seen are criminals, not innocent citizens. State v. Rodriguez, 769 P.2d 309 (Wash. App. 1989). As Professor LaFave observed:
[C]ourts should be cautious in accepting the assertion that one who apparently was present when narcotics were used or displayed is a presumptively reliable citizen-informer . . . . [T]his is because as a general proposition it is an informant from the criminal milieu rather than a law-abiding citizen who is most likely to be present under such circumstances. This is not to suggest that a person giving information about the location of narcotics may never qualify as a citizen-informer, for it is sometimes possible to show with particularity how a law-abiding individual happened to come upon such knowledge.
1 LaFave SEARCH AND SEIZURE (1987), at 728. (Emphasis supplied).
State v. Ibarra, 61 Wn. App 695 (1991), is hopeful. This case reiterates the Northness categories of informants, observing that "the concern that the informant information may be coming from an anonymous troublemaker remains when the citizen informant is unidentified. Therefore, the State's burden of demonstrating the credibility of a citizen informant is not necessary lightened when the informant remains unidentified to the magistrate." 61 Wn. App. 699. This case holds that the reliability/credibility of the alleged "citizen informant" was not established, particularly because the reason why the informant was at the scene of the crime/location of the crime was not given. The case holds that a generic recitation of the officer's conclusions is not sufficient to raise the requisite inference that the informant had a valid reason for wishing to remain anonymous.
d. The “criminal milieu” informant.
Some courts recognize the reality that informants from the "criminal milieu" –criminals in plain English -- are likely to lie and should be presumed unreliable: "It is to be expected that the [criminal] informer will not infrequently reach for shadowy leads, or even seek to incriminate the innocent." Jones v. United States, 266 F.2d 924, 928 (D.C. Cir. 1959).
Law enforcement officials and prosecutors are at least privately aware of the likelihood that criminals will lie to stay out of trouble. For example, the Hon. Stephen Trott, when he was in charge of the criminal division at the United States Department of Justice wrote:
Criminals are likely to say and do almost anything to get what they want, especially when what they want is to get out of trouble with the law. In my personal firsthand experience of over 18 years as a prosecutor, this willingness to do anything includes not only truthfully spilling the beans on friends and relatives, but also manufacturing evidence, soliciting others to corroborate their lies with more lies, double-crossing anyone with whom they come into contact, including - and especially - the prosecutor. A drug addict can sell out his mother to get a deal; and burglars, robbers, murderers and thieves are not far behind. They are remarkably manipulative and skillfully devious. Many are outright conscienceless sociopaths to whom "truth" is a wholly meaningless concept. To some 'conning' people is a way of life. Others are just basically unstable people.
Trott, The Successful Use of Snitches, Informants, Co-Conspirators, and Accomplices as Witnesses for the Prosecution in a Criminal Case 2, (United Sates Justice Department 1984). Mr. Trott is now a judge on the United States Court of Appeals for the Ninth Circuit. His updated article was recently published at 47 Hastings L.J. 1381. The title is Words of Warning for Prosecutors Using Criminals as Witnesses.. He has recently reiterated these same feelings in a written opinion. United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir. 3/29/93), addresses credibility of informants as trial witnesses: “Our judicial history is speckled with cases where informants falsely pointed the finger of guilt at suspects and defendants, creating the risk of sending innocent persons to prison.” See also, Zeese, How Prosecutors Use Informants, 1 DRUG L. REP 130-31 (Sept.-Oct. 1984).
Bernal-Obeso is the exception. Courts have demonstrated rare ingenuity in developing theories by which to support the veracity of these inherently unreliable sources of information. The police may rely on, among others, the following common methods of showing the veracity of the criminal informant:
(1) A "track record" of virtually any prior cooperation with the police. This should not be interpreted to mean that if an informant predicted the sun would rise, and then it did, his word may now be presumed reliable. State v. Fisher, 639 P.2d 743 (Wash. 1982), but see, dissent. Note that a "controlled buy" should not establish reliability unless the affidavit alleges the informant claimed he could buy at that location, and then did. State v. Casto, 692 P.2d 890 (Wash. App. 1984); State v. Steenerson, 688 P.2d 544 (Wash. App. 1984).
(2) A “statement against penal interest,” State v. O'Connor, 692 P.2d 208 (Wash. App. 1984). The theory is that when people admit to crimes, it must be true. This theory should not be applied where it doesn't fit (although it often is). The statement must be genuinely against penal interest. Note here that the naming of the informant in the affidavit is not a passport to reliability; rather, it is a prerequisite to a finding that a statement against penal interest supports an inference of reliability. 1 W. LaFave, SEARCH AND SEIZURE, at 644. This exception should not be used to make a person who confesses to some crime a more reliable source of information than an honest citizen.
(3) The informant is highly motivated to provide accurate information, and will not lightly lead police down blind alleys. State v. Bean, 572 P.2d 1102 (Wash. 1978); State v. Estorga, 893 P.2d 813 (Wash. 1991); these cases showcase judicial logic at its thinnest. A criminal caught red-handed who then makes a deal is presumed to be reliable? This is dangerously dishonest logic. Often "prospecting" -- law enforcement's own term for leading police down blind alleys in the hope of getting lucky and finding something incriminating -- is an informant's only hope.
(4) Merely giving the name of the informant does not establish reliability. State v. Sieler, 621 P.2d 1272 (Wash. 1980).
Many search warrants for indoor grows rely almost entirely on the word of a criminal milieu informant. Where the "full-court press" is necessary to the defense of the case investigative opportunities here are many. When dealing with a criminal milieu informant, the lawyer should check possible suspects for recent arrests or convictions. Where there are no clues, check search warrants[6] in the same jurisdiction for similar warrants or warrants by the same officer. Then interview other targets of similar searches to see if one name of a suspected informant comes up twice. Then interview that one. Often the informant will have been materially misquoted. Perhaps he first misled the police before deciding to "tell the truth" about your client. There’s always something there of value. Of course, never interview informants alone!
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Last edited by Trichome Toker; 01-21-2007 at 11:54 PM..
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01-21-2007, 06:30 AM
