Confidential Informers

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General Principles

Police will often rely upon confidential informers to form their grounds to effect a warrantless arrest or for the issuance of a judicial authorization such as a search warrant. These are most pervasively seen in dealings related to drugs and organized crime where confidential communications are so often shared to persons who may have an interest in revealing it to police officers.

Information from a confidential informer is only admissible where the defence challenges the grounds of a search, seizure, or arrest, otherwise it is not relevant.

A "tip" from an anonymous or confidential source can be used to form the grounds of arrest or search. The "tip" must be considered based on:

1. the degree of detail provided;
2. the informant's source of information;
3. the informant's prior reliability.

This test was previously stated as the "Debot" test requiring the three "C"s:

1. was the information predicting the commission of a criminal offence "compelling"?
2. where that information was based on a "tip" originating from a source outside the police, was that source "credible"?
3. was the information "corroborated" by police investigation prior to making the decision to conduct the search?

All these factors are to be balanced together in the "totality of the circumstances" to determine if the evidence meets "the standard of reasonableness".

An anonymous tip generally is not sufficient. Inquiry must be made into the three Garofoli factors to determine whether it can be reasonably relied upon.

The test remains the same whether considering a warrantless search or a warrant such as a wire-tap.

Hearsay from the informant can be sufficient.

The law must maintain a "distinction between acting on a tip from a reliable source and acting on a tip from an unproven source". Where reliability is unknown, "a relatively thorough investigation is essential" in order to provide corroboration.

Consideration of the reliability of the information must be at the time of the warrantless search or application for a warrant. It cannot be considered ex post facto from the results of the search.

Detail

The purpose of considering the level of detail is to "ensure that it is based on more than mere rumour or gossip"

Source

It is insufficient to rely on conclusory statements without any information on the "source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance"

Corroboration

Confirmation of the criminal aspects of a tip is important in cases such as where the tip is anonymous.

Where there is no corroboration or confirmation, the reliability of the source is the essential issue.

Level of Detail

• Consider:
  • Length of discussions with informer
  • Amount of information known of accused (by name or description)?
  • Did information include the location of criminal offence?
  • did information include nature and quality of drugs?
  • did information include the nature of the deal?

In a drug trafficking case, details that should often be considered include:

• type of drug observed, the amount of drug present, and how informer would have known;
• location within the residence in which the drug was observed or stored;
• observations regarding indicia of intent to offer for resale;
• recency of observations; and
• location of sources at time of observation, whether it was made inside or outside.

Corroboration

It is important that the corroboration relating to details of the offence not simply be neutral facts of a non-criminal nature.

There is nothing wrong with having two informers cross-corroborate each other in assessing whether sufficient grounds exist.

Where the level of detail is low and where credibility cannot be assessed, the obligation on corroboration increases.

Where the reliability of the source is unknown, corroboration is "particularly important". There must be sufficient corroboration "to remove the possibility of innocent coincidence".

Often evidence from surveillance or other investigative tools will corroborate the informer.

Reliability and Credibility

• Past reliability:
  • Length of time known
  • Frequency of contact
  • # of times paid (before / after incident)
  • # of valid search warrants based on his information
  • Had searches resulted in a seizure of drugs/monies/weapons (If so, in what amount?)
  • Had information resulted in convictions?
  • # of negative, false or inaccurate information?
  • # of cases resulted in dismissed/acquitted/withdrawn
• Credibility of Informer
  • Did they have pending charges at the time?
  • Non-conclusory information
  • Did they have a criminal record? For offences of dishonesty? If so, how many, and how long ago?
• Informers source of knowledge
  • 1st, 2nd or 3rd hand information? (3rd degree is as good as anonymous)
  • Freshness of the information

Criminal Record

An informer with a criminal record is quite frequent and expected. The presence of a record should not necessarily negate the value of the information. However, offences such as perjury will likely have an impact on their credibility.

Motivation

There are a variety of motives to be an informant, including.

1. Fear such as the threat of incarceration;
2. Revenge;
3. Perverse motivation;
4. Egotistical motivation;
5. Mercenary motivation such as the receipt of money.

Disclosure of Handler Notes

"Source Handler Notes" (SHR) or "Source Debriefing Notes" (SDR) are records made by source handlers recording their interactions with their designated sources.

SDR and SHR are only disclosable under what is known as a "McKay Order".

Simply classifying materials as "handler notes" does not necessarily afford them the protection of informer privilege.

The burden is upon the accused to demonstrate "that there is a reasonable likelihood that the requested materials will assist the court in the determination of the application".

SHN are "first party disclosure, unless those reports concern only general information unrelated to a particular accused and investigation

SHN/SDNs that were not read by a affiant in swearing are prima facie irrelevant.They may only be disclosed if established as "likely relevant" and are not privileged.

"Sufficient reliability is established, or is not established, by reference to the material filed in support of an application for an authorization"

The defence are not permitted to cross-examine a source handler without first making a "Dawson application".

See Also

• Cases on Informers in Warrantless Searches
• Informer Privilege
• Information to Obtain a Search Warrant

Social Sciences

• essay on risks of jailhouse informants