Cooperating individuals, or snitches, work closely with police in exchange for either money or leniency with their own drug charges. They are permitted to operate with virtual anonymity in order to set up as many people as possible. Police and prosecutors also go to great lengths to protect the identity of these assets from being disclosed.
This is typically on full display in marijuana search warrant cases. The snitch provides tips to police to establish a reasonable suspicion of criminal activity, which when coupled with other information can provide probable cause to issue a warrant. Or they might participate instead in multiple controlled buys to strengthen the likelihood that marijuana might be discovered in the place to be searched.
Don’t spend too much time, though, looking for their name, address and phone number in the search warrant affidavit. You won’t find it. There’s a reason why snitches are referred to as “confidential informants.”
Generally, the state is privileged to withhold the identity of a person who furnishes information relating to law violations. The Iowa Supreme Court has found compelling reasons for recognizing this privilege, primary among them the interest in maintaining the free flow of information from the street that is essential to this police practice. To be weighed against the snitch’s privilege, however, is our client’s right to prepare and present a meaningful defense.
The defense bears the burden of showing why disclosure of the snitch’s identity is necessary. Circumstances that are considered in balancing the state’s interest in the privilege against our client’s need for the disclosure include the nature of the offense charged; defenses raised such as entrapment, misidentification or alibi; and the potential significance of an informer’s testimony. Paramount among these considerations is whether the informant was a witness or participant in the crime for which our client is charged. If the snitch was present at the scene of the crime, or a participant to it, such person is no longer merely an informant but a witness whose identity must ordinarily be divulged. But even if the informant is a witness or participant in the crime, mere speculation that the snitch may be helpful in preparing the defendant’s defense is not enough to overcome the public interest in protection of the informant. And a defendant has no right to confront an informant who does not, directly or indirectly, give any evidence at trial.
This is why prosecutors do not charge defendants with the deliveries of marijuana to a snitch that led to a search warrant application. Their status as a participant or witness to the charged crime subjects them to disclosure. Much better then to use their information or controlled buys to secure a warrant, search the target’s residence and then charge the target with possession of any marijuana seized during the raid.
Does that mean that identity of the snitch can never be discovered?
Fortunately, there are exceptions to non-disclosure. One area that can yield the pretrial disclosure of the informant’s identity is where police make misstatements attributable to the snitch in the search warrant affidavit that can be construed as either a deliberate or reckless falsehood. These statements are important because they factor into whether the warrant should be issued in the first instance. If the statements are stricken from the affidavit because they are not truthful, then the warrant may fail for lack of probable cause.
So, how do the drug defense attorneys at GRL Law lay the foundation to disclose the identity of the snitch to ensure a fair Franks hearing? In other words, how do we force disclosure at this stage where the magistrate has already passed on the credibility and veracity of the informant?
The answer can be found in our relentless approach to pretrial discovery. We scrutinize every piece of evidence that shows the client’s interest in disclosure outweighs the state’s policy to protect snitches.
We expose inconsistencies between the information supplied under oath in the warrant affidavit and the officer’s subsequent sworn deposition testimony.
Where appropriate, we challenge whether the purported informant even existed in the first place or whether the snitch ever provided the information asserted by law enforcement. Both scenarios raise the specter of police perjury, the chief evil against which a Franks hearing is designed to protect.
If there’s a way to disclose the snitch, then we’ll find it and use it to our client’s advantage.