By Dennis G. Fitzgerald
The defense lawyer's perspective that law enforcement views its
snitches as free agents, conveying to them near 007 status, is seriously
flawed. That misconception may place you at a serious tactical disadvantage
in the defense of your client.
Many police managers view informants as a necessary evil,1 time
bombs waiting for the wrong moment to explode. The catastrophe that
follows their detonation may include the death or serious injury
of citizens,2 civil law suits and destroyed police careers.3 The
Drug Enforcement Administration (DEA) reports that the "failure in
the management of cooperating individuals constitutes, perhaps, the
most obvious single cause of serious integrity problems in DEA and
other law enforcement agencies."4
Law enforcement efforts to rein in both
their informants and their agents have created a paper trail few
attorneys have discovered.
Known as the "Informant File," its contents may contain the detonator
you can use to blow the government's case against your client out
of the water.
The Informant File contains closely guarded information concerning
the informant and his relationship with the government. At a minimum
it should contain:
A copy of his agreement to cooperate with
A debriefing report or an outline
of what type of cases he might produce
His personal and criminal
The amount of money paid to
him for information and expenses
And if a defendant
informant, what he might expect at sentencing
in return for his substantial assistance.
The file can also hold internal memoranda
prepared by the control agent documenting informant misconduct
and deactivation known as "blacklisting." Either
may have a devastating effect on the informant's credibility and
may prove invaluable in the preparation of your case. When the reliability
of an informant witness may be determinative of guilt or innocence,
non-disclosure of evidence affecting the informant's credibility
falls within the general rules of Brady.5 While the file
may contain evidence adversely affecting the credibility of the informant,6 jurisdictions
differ in how they respond to demands for the disclosure of its contents.7
Law enforcement agents do not voluntarily surrender their informant's
file. Some prosecutors are surprised when they learn of the file's
existence. Those prosecutors who do know of the file are frequently
ignorant about what it actually contains. Those prosecutors who are
familiar with the file may vigorously resist disclosing its contents.
The defense attorney who recognizes
the potential value that an informant's file holds still remains
at a disadvantage
exactly what the file contains. What follows is an examination of
information that a "generic" informant file should hold. Armed with
this knowledge, the defense attorney can request the confidential
contents with some degree of specificity.8 Coupled with
an aggressive investigation of the informant, counsel can then attempt
to convince the court that the file information is subject to disclosure.9
The DEA, the FBI and Customs are the largest federal consumers of
informant services. Federal agents and local law enforcement are
equally dependent on informants. It is an unusual organized crime
and/or drug case that does not involve informants.
The defense bar usually describes informants
as "snitches." Agents
and officers may refer to their informants as "snitches" in conversations.
However, in written reports and forms, informants may be described
as "sources of information," or "cooperating individuals," etc.
Agencies not only use different terms for informants but many have
sub-categories for their sources, each bearing different terms. This
can be critical when drafting discovery demands10 for
the informant file. For the purpose of this discussion the terms "confidential
informant," or "C.I." will be used to describe persons who confidentially
volunteer material information of law violations. These terms do
not include persons who supply information only after being interviewed
by police officers, or who give information as witnesses during an
investigation.11 The informant is under the direction
of a specific agent and furnishes information with or without expectation
of compensation.12 The term "informant file" will be used
to describe the file that contains all information produced by a
law enforcement agency that pertains to a specific informant.
Because of its extensive participation in multiple jurisdiction
task forces since 1974, the DEA has greatly influenced state
law enforcement's use of informants. Many of the DEA forms, procedures
and filing systems have been adapted by local agencies and are
frequently seen in state prosecutions.
Much of what follows is drawn from a
recent FOIA release of the DEA Agent Manual section13 governing
the informant file and its contents. Like a legal desk book, the
volume is loose-leaf
and subject to change and update. With few exceptions, the sub-chapter
governing the format of the informant file has remained the same
throughout DEA's 25 years of existence.
The informant file is generally kept
by the law enforcement agency in a safe or a Mosler-style "combination entry only" file
cabinet. Those individuals with the combination are generally command
personnel. The safe or cabinet when unattended is usually locked.
Generally, informant files are segregated from all other investigative
files. Access to the file is generally restricted to the informant's
handling agent, supervisor or others who can show a legitimate need
to inspect the file. Many agencies, including DEA14 have
sign-out logs that record the date and time the file was removed
The sign-out/sign-in procedure, if followed by the agency, can be
valuable to the defense attorney. This is particularly true when
an informant is suspected or alleged to have committed a violation
of agency procedure or law. Some agency manuals only require periodic
supervisory review on either a monthly or quarterly basis. A flurry
of supervisory sign-outs or access to the file by agency internal
affairs investigators could signal extraordinary attention being
paid to a particular informant's misconduct. When you discover extra
scrutiny being paid to the C.I. it can certainly expand your witness
list. Your subpoenas will also create a stir within the agency. Supervisors
and internal affairs investigators do not like to testify and are
usually poor witnesses for the government.
Code Numbers and Names
The primary method used to keep an informant's identity confidential
is to assign him a code number or a code name. The code number
system is more common but some agencies issue both.
The number or name is used in both investigative reports and internal
memoranda that document the informant's activity. Receipts for payment
made to the informant for information and expenses will also bear
the code number and may be signed by the informant with his code
name. Agencies that use both code names and numbers do so for security
and as a matter of convenience in dealing with their sources. The
code name allows the informant to telephone his agent handler's office
and leave messages without giving his real name. Keeping the informant's
identity a secret from others in the police department or agency
is a routine practice.
The code number can provide the defense with some valuable information
about the informant. The numbering system historically used by DEA
will immediately tell what year the informant was recruited. As an
example, informant number SGB-89-X001 was recruited early in 1989.
He was the first informant (001) documented by the respective DEA
office. The letters that precede the year yield less obvious and
more difficult to decipher clues. The code number always starts with
S, the second and third characters are the designators of the establishing
office. If an X appears in character six it indicates a DEA state
or local task force established the informant.15 DEA recently
realized the value of the informant number to the defense and has
begun redacting informant code numbers from investigative reports.
In a recent major smuggling investigation, I demonstrated the number's
value to the defense attorney. A case was developed in Phoenix, Arizona
in 1995 through the efforts of informant SGB-89-X001. He maintained
a Miami Field Division (G), Ft. Lauderdale, Florida Resident Office
(B) informant number and the two digits, 89. In essence the code
number told the attorney who the informant was. His client had conducted
legitimate business with a Ft. Lauderdale export company executive
prior to his arrest. It also told us to expect an informant with
a long track record of use, dating back to at least 1989. The X indicating
a DEA Task Force told me that the informant was probably recruited
by a police officer participating in the DEA Task Force. Police officers
routinely violate DEA procedure for handling informants and that
was the case here. In a trial by ambush jurisdiction, that small
amount of intelligence information contained in the informant's code
number seemed like a windfall.
Most law enforcement agencies use a form to fully identify their
informants and document their criminal histories. Some of the forms
resemble arrest reports, others are as complete as an application
for employment. Comprehensive documentation also serves to verify
the existence of the source to prosecutors and police managers.
Instances of police officers creating rather than recruiting informants
have been occurring for decades.16 The non-existent
informants provide extremely accurate information to support the
issuance of search warrants.
Again, DEA has had a dramatic impact on the practices employed by
state and local police departments. Many police agencies have adopted
the same documenting format used by DEA, either in part or in whole.
DEA's Confidential Source Establishment Report17 contained
in the Informant File is DEA Form 512. The form has over 60 boxes
that require the agent to obtain information from and about a prospective
informant. Beyond name, date, place of birth, Social Security number
and address, it also requires that the informant's criminal history
be fully investigated. Form 512 contains useful information for trial
strategy, particularly if the informant has committed crimes the
government knows about that would affect his credibility at trial.
The C.I. is also fingerprinted and an "Inquiry Only" request
is sent to the FBI for fingerprint information. The purpose of
is to determine whether there is anything in the informant's criminal
background that would preclude his being used as an informant. DEA
has been embarrassed before. In one case, agents unwittingly used
an informant who was responsible for two murders.18
The DEA Manual and
the Informant Establishment Report require more than a routine
and "running the informant's
fingerprints." The NCIC,19 Computerized Criminal History
(CCH) and Interstate Identification Index (III) files must also be
queried. The check is based upon the informant's FBI number. If the
informant was born before 1956, and the CCH and III files are negative,
a Request for Criminal Records (DEA Form 105) must also be sent to
the FBI Identification Division. There could be a manual arrest record
that may not have been indexed.20 The results of the criminal
check are entered on the Informant Establishment Report.
DEA requires that its own computer system, NADDIS21 be
checked. Every name ever indexed on a DEA investigative report22 is
entered into the computer. An INTERPOL23 check is also
required. A box documenting the date when inquiries were completed
is also provided on the form.
Other items of interest on the Informant Establishment Report include:
Whether the informant has been declared unsatisfactory (blacklisted);24
If the informant is or has been enrolled in the U.S. Marshal's
Witness Security Program;
Whether the informant is on probation
or parole, and the probation/parole officer's name who approved
his use as an informant;25
If a defendant informant, the name and telephone number of the
prosecutor who gave permission for his use;
Whether a Cooperation Agreement (DEA Form 473) has been completed;26
Whether an initial debriefing report has been completed;
A brief statement of what type of cooperation the informant
hopes to provide, including a NADDIS number of the target.
Not all agencies have adopted the strict documenting procedure that
DEA is supposed to follow. However, besides DEA's influence over
police practices, they have been providing formal police investigator
training for years. The documenting process is taught to the state
and local police students. Police agencies also contract with police
training companies for investigator training.27 Documenting
is a part of many of those courses.
With the guidance of a clearly stated informant documentation process,
an investigator is hard pressed to explain in court why he did not
check the C.I.'s criminal history. The investigator handling an informant
with a long history of violent crime is clearly placing himself in
unnecessary danger. Moreover, an informant convicted of crimes showing
dishonesty or perjury could also taint any future testimony he might
offer at trial28 wasting valuable time and money for both
the court and the law enforcement agency. The defense attorney should
be aware that the FBI and some other agencies do use informants with
incredibly violent pasts.29
Defense attorneys must aggressively investigate the informant witnesses'
background and conduct during the investigation of the client. Although
costly and often time-consuming, it may be the only way to effectively
undermine the credibility of the informant witness at trial.
The client may hold the key to his own defense. Your thorough debriefing
conducted soon after your client's arrest may develop valuable leads
for your investigator to follow.
The Informant Agreement outlines what cooperation the prosecutor
or police expect from the informant. It will also state what the
informant can expect in return for that cooperation.
The informant file maintained by the police department or federal
agency will usually only contain agreements between the control agent
and the informant. It will be signed by the control agent, the informant
and usually one witness. Although agreements between the prosecutor
and the informant may exist, they do not necessarily find their way
into the informant's file maintained by the law enforcement agency.
Those agreements are generally retained in the prosecutor's file.
Informant Conduct Agreements contain the rules which an informant
must follow while working for the police. The agreement may be
referred to by another name but it is usually no more than a list
of behavior strictly prohibited by the police. Some police agencies
have gone to the extent of preparing a list of as many as 25 "thou
shalt nots" for the informant including not to carry a firearm,
not to violate the law and not to represent himself as a law enforcement
officer. It should not be confused with the Informant Agreement
or contract that outlines what cases are expected from the informant
and what he may expect in return for his cooperation.
DEA's agreement is contained in DEA Form 473. It contains:
C.I.s shall not violate criminal law in
furtherance of gathering information or providing services to
DEA, and that any evidence
of such a violation will be reported to the appropriate law enforcement
C.I.s have no official status, implied
or otherwise, as agents or employees of DEA.
The information they provide may be used in a criminal proceeding,
and although DEA will use all lawful means to protect their confidentiality,
it cannot be guaranteed.
It is a federal offense to threaten, harass, or mislead anyone
who provides information about a federal crime to a federal law
enforcement agency. Should they experience anything of this nature
as a result of their cooperation with DEA, they should contact
their controlling agent immediately.
Informants sign DEA Form 473 acknowledging
that he/she has read and agrees to the listed conditions. His/her
signature and the date
are witnessed by two agents. Should a cooperating individual refuse
to sign the DEA Form 473, the following statement is entered on the
form, and is signed and dated by two agents: "On (date), (C.I. Number)
was advised of and agreed to the conditions set forth on this form.
(C.I. Number) refused to sign." The DEA-473 is placed in the appropriate
Informants usually possess a variety of criminal intelligence.
It is the duty of the control agent to extract as much information
from the informant as possible. The process at DEA is known as "debriefing."31 Information
learned from the informant is contained in a report prepared by
the control agent, usually entitled "Debriefing of Informant #" and
is memorialized in a DEA 6 investigative report.
Agencies differ in what they do with
information learned during a debriefing about crime that is outside
area of responsibility.
The "written rule" in most law enforcement agencies is to pass the
information on to the proper jurisdiction or agency charged with
enforcing a particular law. It is not unusual, however, for an agent
to keep the information to himself or within his agency if he believes
that divulging the data could compromise the informant's identity.
The FBI is generally regarded by local law enforcement officers as
a "one-way street" when it comes to sharing information. They take
information but seldom return the favor. The FBI has provisions in
its own manuals that allow them to withhold information from local
police about crimes that either have been committed or are planned
for the future.32 The FBI does not necessarily report
crimes committed by their informants that occur outside "the line
of duty" if the disclosure will compromise their informant's identity.
If you are able to obtain the debriefing
report during discovery, you may well find that the police ignored "big fish" and went after
your "little fish" client. If your client is not mentioned in the
initial debriefing report, he may truly be a victim of a "fishing
expedition" by the informant. This is particularly likely to happen
with defendant informants. They must produce bodies in exchange for
their freedom and are not enthused at the prospect of turning in
friends if there is any alternative. They certainly like to avoid
providing evidence about their true source of supply if he is their
only source of drugs.
Although rare, some defendants have no one to give up and they must
go out and make a case from scratch. Check the court file to see
if the government has asked for seemingly needless continuances of
the defendant informant's criminal case. Those continuances could
be at the urging of the informant handler to buy time for his C.I.
to produce a case. Check if your client's arrest was close in time
to the defendant informant's sentencing date. Your client's case
may have held the key that opened the jail house door for the snitch.
In one case I assisted in, the defendant
informant worked on our client for months without getting him to
deliver drugs. As the date
of the snitches' sentencing came closer, his efforts to draw the
client into a criminal case became increasingly desperate. The video
of our client's arrest showed the informant literally throwing the "buy
money" at the defendant when the client attempted to withdraw from
the conspiracy. The informant's long distance telephone bill showed
many calls to the client at all times of the day and night. Many
of the calls were not taperecorded.
My investigation showed that the state had requested two continuances
in the case. We also obtained a copy of the Informant Agreement that
gave the snitch 90 days to produce three prosecutable cases. In return,
the state agreed to recommend probation at his sentencing. The client's
arrest was on the eve of the agreement's due date.
The truly mercenary money motivated informant may also find himself
running out of targets. No defendants equals no money, so he will
become creative in his efforts to deliver bodies. Any of the above
situations provide ripe opportunities for the defense attorney to
explore an entrapment defense.
Some agencies require that a formal statement be taken from the
informant if he has provided information or has participated
in an activity
in which he may be required to testify.33 The informant
is usually told by his control agent that the statement will serve
as his "report" of what occurred. It should be taken immediately
or soon after the police activity and should be a fresh recollection
of what the informant saw, heard, and said. In reality, the procedure
is a precaution the agency takes in the event the informant decides
to deny his role in the investigation. It is not always followed.
Some informants refuse to sign a statement. DEA has a provision "where
taking a statement may adversely impact an investigative outcome,
the procedure may be waived if all relevant information is reported
in a DEA 6"34 investigative report.
Very often the statement is prepared
by the control agent for the informant's signature. There is seldom
ulterior motive for this
method of obtaining the statement. Many informants have difficulty
in verbalizing a complete sentence let alone writing their own statements.
Some can't read and have no idea what they have signed. When it comes
down to "sign or no money" they will generally sign anything. The
signed and witnessed statement is then usually placed in the informant
file with other internal memoranda pertaining to the informant.
A DEA informant is usually paid when he assists in developing a
case, either by supplying information or by actively participating
the investigation. He will be paid in either a lump sum or in staggered
payments.35 It has been my experience that many agencies
have similar payment practices.
Some informants are actually paid on a commission basis or a contingent
fee basis.36 The latest FOIA release of the DEA
Agent Manual redacted a pertinent part
of the manual governing contingency payments to informants. Earlier
editions of the manual directed agents
to instruct informants paid on a contingent fee basis about the law
of entrapment.37 The manual contains the following instructions
The fee arrangement should be discussed with the cooperating
individual in detail; there should be no gaps in understanding
the terms of the arrangement;39
The usual instructions to the cooperating individual, the details
of the fee arrangement and the Entrapment Instructions should
be provided to the cooperating individual in writing at the beginning
of the operation;40
Every effort should be made to maximize the control and supervision
of the cooperating individual;41
Every effort should be made to corroborate the cooperating individual's
statements concerning his activities;42
Payments should be completed before the cooperating individual
Agents should be prepared to give reasons why it is necessary
to use cooperating individuals in this unusual manner.44
Money for Information
Informants generally fall into two very broad categories:
It is no great revelation that informants are paid. In 1993, approximately
$97 million was paid to informants by the FBI, DEA, Customs, ATF
and the IRS.45 How much a C.I. is paid may be as significant
to the defense as it is embarrassing to the prosecution at trial.
DEA instructs its agents that they "should be prepared to give reasons
why it is necessary to use (paid) cooperating individuals in this
unusual manner46 during testimony." Defense counsel should
be prepared to rebut the explanation when it is tendered.
As a prerequisite to any payment for
information, most agencies require that the individual providing
the assistance be documented
as an informant. The informant file will almost always contain a
payment record. In DEA cases that record is contained in Form 356
and is kept at the top of the informant file. It lists the payments
the informant has received for all investigations
he has participated in, not just your client's case.
Some state and local agencies maintain
a payment record that incorporates a "track record" of the informant's
success ratio. This serves the dual function of recording how much
the informant was paid and his
level of reliability. That information is particularly useful when
agents apply for a search warrant based upon an informant's information
and his reliability.
Informants generally receive money from their agent handler for
Payment for information and/or active participation (often called
a reward for information) or when an informant assists in developing
an investigation. DEA refers to these funds as P.I.;
To purchase evidence. DEA refers to these funds as P.E.;
Payment or reimbursement for expenses incurred in connection
with an investigation.
The amount paid to a money motivated informant is usually calculated
by the significance of the target (your client), the danger the target
presents to the informant, and the amount of the actual or potential
seizure realized by the government. The CI's payment is for information
and/or active participation in a case.47 He is also reimbursed
for expenses including but not limited to rental cars, hotel rooms,
meals while with the target and telephone calls. Both sums are small
change when compared to the award paid to an informant responsible
for a seizure of real or personal property. The informant may become
eligible for a percentage of the assets seized by the government. The
award can be as much as 25 percent of the property seized or up to
$250,000 per case.48
Any money given to an informant must be signed for by the C.I. no matter
what the funds are to be used for. Many agencies require that two agents
be present for any payment. The second agent signs the receipt as a witness.
The receipt serves two purposes: It is not unusual for an informant to turn
on his agent handler and claim he was not paid when, in fact, he was. Such
allegations usually occur when the snitch feels the agent didn't live up
to his end of their arrangement. The agent may have failed to deliver on
a promise. The informant's only way to hurt the agent is to allege wrongdoing.
Misuse of funds is one of the most serious allegations that can be leveled
against an agent.
The agent may actually be pocketing money that was meant for the informant.
I have received reports from all regions of the U.S. that document how agent
handlers steal from informant funds. One classic method is to have the informant
sign numerous blank receipts. The agent tells the snitch the procedure is
for the C.I.'s own protection so he won't have to sign for funds while on
the street. The agent then fills in the amount of the reward and the date,
keeping the money for himself.
It is relatively easy for a jury to understand why the government pays the
money motivated snitch.49 After all, greed is a universal motivation.
Yet the defense can get the jury's attention by making an issue of an outrageously
high sum paid to deliver your client to the police.
Informant's Tax Responsibility
There is no requirement for the paying agency (payor) to notify
the IRS of the informant payment. The Code of Federal Regulations
governs the area
of payments for which no return of information is required to be made by
the payor. Section 26CFR 1.6041-3(2)(n)50 does not require IRS
notification for: "A payment to an informer as an award, fee, or reward
for information relating to criminal activity but only if such payment
is made by the United States, a State, Territory, or political subdivision
thereof, or the District of Columbia, or any agency or instrumentality
of any one or more of the foregoing. . . ."51
Both prosecutors and control agents routinely turn their heads to the tax
evasion committed by their informants. Defense counsel should capitalize
on the transgression.
In contrast, the informant who is working
to stay out of jail usually is not paid for information or participation
in a case. His reward is a "get
out of jail free card" or a downward departure in his sentence.52
Federal agencies such as DEA generally do not pay their defendant informants.
Payments aren't necessary because the informant is working for his freedom
and payments may look bad when revealed at trial. Yet money does get to these
defendant informants, usually disguised as payments for expenses. Hidden
payments usually occur when the handling agent is over anxious to achieve
results with his informant or is outwitted by the snitch.
One such case was in Miami, Florida.
A particularly slimy "blackballed" informant
who faced significant jail time for an attempted murder was recruited to
set up "corrupt" U.S. Customs agents. Customs Internal Affairs Investigators
were convinced that nearly all of their Hispanic agents were either corrupt
or corruptible. This, of course, was not true. In their exuberance to arrest
agents they reactivated the informant from "blacklist" status and sent him
to make cases against their own agents. Before trial the government insisted
that the snitch was only given per diem and
reimbursement for his out of pocket expenses. In reviewing reports released
to the defense it was
clear that the informant was living a lifestyle of the rich and famous. The
defense team calculated that the C.I.'s reimbursement for expenses was in
the neighborhood of $1000 per day for several months. It was clear that the
internal affairs agents were attempting to surreptitiously reward the informant
to keep him working. It was also obvious that prosecutors wanted to keep
the jury from learning about the exorbitant sums paid to the defendant informant.
Purchases of Evidence
Control agents also give their informants money to purchase evidence
from targets of their investigations. Informally called "buy money" or P.E.
funds (purchase of evidence) by agents, the funds are only to be used by
the informant during a controlled purchase of evidence also called a "controlled
buy." In truth, C.I.s often retain some of the "buy money" as a "self-help" reward.
Here is a general description of how
law enforcement agencies are trained to conduct a controlled buy.
from the procedure may allow the
informant to steal "buy money." Failure to follow the steps outlined below
also allows a desperate snitch to plant evidence on a target or provide his
own evidence of a purchase. How the defense attorney capitalizes on deviations
from the procedure are case specific and usually require investigative effort.
Police reports detailing the "controlled buy" are usually found in the informant
The purchase of evidence by the informant
should be made with funds provided to the C.I. by the control agent.
The money is usually either pre-recorded
with the serial numbers written down, or the actual currency is photocopied
by agents. The serial numbers of funds later seized from the defendant are
compared against those used during the controlled buy. (Don't make an issue
of the illegality of photocopying U.S. currency, it's a waste of time.) The
informant uses the money only to purchase evidence,
usually stolen property or drugs. He is not to keep any of the funds for
Fortunately for the defense, informants don't
play by the rules. Most are thieves who cannot resist the temptation
of easy money. Many will steal from
their agent handler whenever given the chance. Some agents turn a blind eye
to the theft. They allow it to occur as a way to get around strict rules
imposed by their supervisors governing payments to C.I.s. Others are naive
and don't realize the informant is rewarding himself.
One common way for these self-help payments to occur is when the informant
quotes a higher purchase price to his control agent than that quoted to him
by the dealer. One informant actually added an adulterant to a one-ounce
package of cocaine that he purchased, doubling both the weight and the price
he reported paying for the drugs. Naturally the agent didn't complain about
the bonus two-ounce purchase. Only the defendant will know for sure just
how much he really sold to the C.I. but will seldom complain about the discrepancy
at his bond hearing.
Some informants reward themselves by simply keeping some of the purchased
drug evidence for themselves to use or to resell. To ensure the snitch's
honesty, agents are taught to search the informant before and after the purchase.
The search is meant to eliminate any possibility that the evidence purchased
by the informant was in fact supplied by the informant. The search, however,
does not always occur.
The informant files of some law enforcement
agencies actually document the reliability of their C.I.s on a
case by case basis. For example, the Portland
(Oregon) Police Bureau has employed a standard form that tracks an informant's
reliability. To satisfy the Aguilar-Spinelli53 basis
of knowledge and reliability test, the Tacoma Police (Washington) Narcotics
Unit documents each instance that their informant produces results during
a "controlled buy."
Searching the Informant
To illustrate the importance the DEA places upon the search of
an informant both before and after the purchase of evidence
is the following excerpt
from the agent manual:
Where a cooperating individual is to participate in an undercover purchase
in which he may come in contact with either official funds, controlled
drugs, or anything else of potential evidentiary value, he will be thoroughly
searched both before and after the undercover encounter, and where possible
kept under continuous observation in between. The reason for this is to
preclude questions as to the validity or integrity of the evidence. The
search of the cooperating individual will be reported in the DEA-6 documenting
The value that the search procedure holds for the defense is often overlooked.
It is an area loaded with potential problems for the prosecution. Perjury
by the informant, agents or both is often a possibility if they are called
to testify about the extent of the search.
The defense attorney must be aware that there are two or three participants
to every search: the informant, the agent and a witness to the search, usually
another agent. The problem for the prosecution is subtle: very often the
search was never conducted although investigative reports state that it occurred.
If a search was conducted, it was not a thorough search that included an
examination of the informant's body cavities. The prosecutor is usually the
last to find out that no search or only a cursory search was conducted. That
revelation should occur during the defense examination of the informant and
The reason for the lapse in the search procedure is difficult for the prosecutor
or defense attorney to understand, probably because neither has had to conduct
a body search. For the agent, bypassing a thorough search of the informant
is convenient. It also avoids the often disgusting task of inspecting an
Some informants, particularly those who are
police "wannabes" resist being
searched. They claim it is demeaning. Agents don't want to loose the snitch
and let the search, instead of his pants, fall to the wayside. Yet, it is
not unusual for the thorough search to be routinely reported as if it had
occurred. If a "pat down" search was performed it is often reported as a
In-house, agents will offer the excuse that there wasn't time before a buy
to accomplish the search, or there wasn't a suitable place at the staging
area of the operation to conduct the search. Another excuse offered is that
the informant was the opposite sex of the handling agent. A search of a male
informant by a female agent or vice-versa is strictly prohibited by most
agencies. There simply may not be a female agent available to do the search.
Again, poor planning by the case agent is the cause. None of these are acceptable
excuses and they only indicate poor planning by the agent. The defense attorney
should capitalize on any lapse in the search procedure.
In a Franks55 hearing
in which I assisted, the informant was called to testify following his
agent's testimony of how a "controlled
buy" occurred. As expected, the agent recounted his thorough search of the
informant both before and after the drug purchase. Apparently the informant
had not been coached by the prosecutor who genuinely appeared to be ignorant
about search procedures. The informant testified that he was patted down
and nothing more. The car he used to go to the defendant's house for the
purchase was never searched.
The agent's partner, a witness to the "search" also
described it as thorough. He went into great detail about how it was conducted.
Perhaps he was confusing
the incident at trial with another buy. It was clear that the judge believed
the agents were not being truthful and the search warrant was suppressed.
Obviously the thorough search is reserved for occasions when informants
are sent to purchase items such as small quantities of drugs or counterfeit
notes that are easy to conceal. The purchase of a stolen stereo would not
call for a strip search. Regardless, searching the informant on his return
with the stereo would be necessary to determine he did in fact use all of
the pre-recorded buy money.
Knowing what the informant file should contain allows you to draft a more
specific and complete demand for discovery. Your knowledge of what should
be in the file also makes it more difficult for the prosecutor to withhold
information which will assist in the defense of your client.
1. Confidential Informants - Concepts and Issues Paper, International Association
of Chiefs of Police, Law Enforcement Policy Center.
2. Carlson v. United States, 93-953G, see also Alvord,
Snitches, Licensed to Lie?, San Diego Union Tribune, May 30, 1995,
3. Commonwealth v. Lewin, 405 Mass. 566, 542 N.E. 2d 837 F.2d 727, 731 (6th
4. Integrity Assurance Notes, Drug Enforcement Administration, Planning
and Inspection Division, Vol. 1, No. 1 (Aug. 1991). See also United States
v. Gardner, 658 F. Supp. 1573, 1575 (W.D. Pa. 1987).
5. Brady v. Maryland, 373 U.S. 83, 87 (1963).
6. See United States v. Bagley, 473 U.S. 667, 676 (1985); Giglio v. United
States, 405 U.S. 150, 154-55 (1972), Napue v. Illinois, 360 U.S. 265 (1959).
7. See Steven G. Mason, How to Compel the Disclosure
of the 'Snitch'/Confidential Informant, The Champion, May 1996 at p. 24.
8. Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987).
9. United States v. Valenquela-Bernal, 458 U.S. 858, 867 (1982).
10. Mason, surpa.
11. Gordon v. United States, 438 F.2d 858, 874 (5th Cir. 1971).
12. Drug Enforcement Administration Agent
(DEA) Manual 6612(C).
13. DEA Agent Manual Ch.
661, 6621, 1995.
14. DEA Agent Manual 6612.24.
15. DEA Agent Manual 6612.22(B).
16. Mark Curriden, Secret Threat to Justice, Natal L.J. 1, 29 (Feb. 21,
17. DEA recently began referring to informants as confidential sources (CS)
in official reports and internal memoranda.
18. United States v. Bernal-Obeso, 989 Fd 331 (9th Cir. 1993).
19. National Crime Information Center.
20. DEA Agent Manual 6612.26.
21. Narcotic and Dangerous Drug Information System.
22. DEA 6.
23. International Criminal Police Organization.
24. DEA Agent Manual 6612.63; blacklisting alerts any DEA agent making inquiries
about a prospective informant that he has been declared unreliable and should
not be used.
25. See United States v. Trevino, CR-94-78-F, an informants pre-sentence
report can contain information damaging to the informant reputation. Obtaining
the PSR can be difficult if not impossible.
26. See United States v. Kojayan, 8F.3d 1315 (9th Cir. 1993), government's
failure to disclose that a key witness had entered into a cooperation agreement
was prosecutorial misconduct depriving the defendant of due process of law.
27. For example, the National Institute for Drug Enforcement Training, is
a private training provider for state and local police. The author is the
co-founder of the company.
28. United States v. Brooks, 966 F.2d 1500, 1502-05 (D.C. Cir. 1992) and
Carley v. Duckworth, 738 F.2d 875, 878 (7th Cir. 1984).
29. FBI Manual of Investigative Operations and Guidelines, Volume 1, Part
1, Section 137. Informants.
30. DEA Agent Manual 6612.3F (1 thru 4). See also 6115.2.
31. DEA Agent Manual 6612.32.
32. FBI Manual of Investigative Operations and Guidelines, Volume 1, Part
1, Section 137. Informants.
33. DEA Agent Manual 6612.33.
34. DEA Agent Manual 6612.33 (A).
35. DEA agent Manual 6612.43(A).
36. See United States v. Cervantes-Pacheco, 8F.2d 452 (5th Cir. 1986), reconsidered,
United States v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987), contingency
fee arrangements are not per se unconstitutional.
37. DEA Agent Manual 6612.43A1. United States v. Vida, 370 F.2d 759 (6th
Cir. 1966) cert. denied, 387 U.S. 910 (1967).
38. DEA Agent Manual 6612.43A1.
45. Mark Curriden, Secret Threat to Justice, Nat'l L.J. 1, 29 (Feb. 20,
46. DEA Agent Manual 6612.43(7).
47. DEA Agent Manual 6612.43.
48. U.S.C. 524 (c)(1)(B) and 19 U.S.C. 1619 (c).
49. United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987).
50. 4-1-97 Edition of the Code of Federal Regulations, Internal Revenue
52.18 U.S.C. 3553 (e) and 28 U.S.C. 954 (n), U.S.S.G. 5K1.1.
53. Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393
U.S. 410 (1969).
54. DEA Agent Manual 6612.31(G) Release 1995.
55. Franks v. Delaware, 438 U.S. 154, 171 (1978).
"Inside the Informant File" was originally
printed in The Champion, May 1998.
Dennis G. Fitzgerald
Read Informants and Undercover Investigations:
A Practical Guide to Law, Policy, and Procedure (CRC Press, 2007) before
you plead your client guilty. It includes:
- Rules for controlling informants
- Informants and search warrants:
police should follow
- Procedures for controlled informant buys
- How information must be corroborated
- Cooperation and plea agreements: Getting full
value for your client’s information
- Inside the Witness Security Program. Is the
program something your client should consider?
- Instant access to federal agency informant manuals
Don't go it alone. Your client deserves
the best defense.
the front and back of the book jacket.
(Very large 2.87MB .pdf. We suggest
you right click and save it to your hard drive,
rather than just clicking it open in your browser.)
Available at CRCPress.com and Amazon.com.
Fitzgerald's expertise includes:
- Case File Review
- Informant Impeachment
- Client Debriefing: Crossing the Cooperation
- Getting the Most Out of Informant Agreements
- Maximizing Rewards
- Witness Protection
- Federal Agency Informant Manuals
- Sting and Reverse Undercover Operations
- Search Warrant and Raid Procedures
Fitzgerald's Curriculum Vitae (87KB .pdf)
Don't have Adobe Reader? Download it from Adobe's
A new book, Reward:
Inside America's Billion Dollar Informant Network, will
be released in 2008.
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