Officers hook up a snitch to do a controlled buy. They search the snitch and the car then give him some cash. They tail the snitch, watch the snitch pick up the dealer and drive to a house. Both go inside. Both come back out to the car and drive back to the dealer's house.
Dealer leaves the car. Snitch drives down the road, pulls over, and has the dope.
The officer doesn't want to burn his Snitch. Indictment language for delivery includes naming the person to whom the crack was delivered.
Do I have to burn the snitch by naming him on the indictment?
You can indict the def. for possession with intent to deliver. This charge is the same degree as the delivery. That way the CI is not named in the indictment. However, the CI will still have to testify at trial. Since the delivery was made to the CI there is no way I know of to protect the CI and still prosecute the case. Also, since the CI is not a law enforcement officer there must be a recording of the transaction.
Our office has a policy: We do not prosecute delivery cases directly involving snitches. The purpose of a snitch is to bring an undercover officer into a case. The snitch should be used to make an initial buy that will not be prosecuted. Subsequent buys should be through the undercover officer, supported by video/audio recordings of the phone calls and deliveries.
I believe it is a dangerous practice to prosecute cases with a snitch as the primary witness. You will always be surprised at trial, and you are asking too much of the jury.
[This message was edited by John Bradley on 01-14-05 at .]
John, those are true words, but not practical in a rural area. DPS narcotics comes in about every 3 years and makes a few misdemeanor and SJF buys. Our task force has not worked in my 3 counties in an undercover capacity for at least 4 years. So if we want to have any impact on drugs in this area we have to make buys with CIs. Believe me, I know the pitfalls all too well, but we have no choice.
I reluctantly take one now and then if the whole thing is on tape and can clearly be understood. But I emphasize the word reluctantly, for all the reasons John said. As for the original question posted: you can't do one of these without using the snitch as a witness. He or she is a necessary witness. I would not indict the case if you don't intend to reveal the CI. These cases generally fall apart anyway after indictment because the CI, who is usually an addict, gets rearrested or disappears to Florida.
Just by reading the posted story on the home page, Task Forces May Be Disbanded, you can get a feel for the Legislature's attitude on drug cases. Does anyone remember Tulia? Although that was not a snitch case, it was an example of investigations that failed to document deliveries through phone and video recordings.
You may think you have to accept task force cases done through a snitch, but you don't. And I have found that law enforcement will meet the standard you either set or accept.
How about this one: The report says officer sees defendant commit traffic violation, pulls him over, sees a meth pipe in plain view, arrests defendant and conducts a search incident to and finds 2 1/2 pounds of meth under the seat. What is not in the report but what the defendant, his lawyer and the officer know, in fact what everyone but you knows....a snitch told the officer that the defendant was transporting dope.
Nothing wrong with obtaining information from a snitch, who has proven to be reliable in the past or who is corroborated by surveillance, and then conducting a search to find drugs. This is done all the time.
The search can occur in a place based on a search warrant. But, often, the information is good for a specific period of time while the suspect is traveling in a vehicle. Given the movement and public nature of the suspect's misconduct, it is perfectly legal and appropriate for an officer to stop the suspect and search for the drugs.
I believe the officer should always disclose that his attention was drawn to the suspect because of information he received from an informant. So long as the informant was not present during the stop, the prosecutor probably won't have to disclose the informant's identity.
Sometimes, though, the suspect will raise an issue that requires disclosure of the informant. For example, if the suspect claims the informant planted the dope, then the prosecutor may need to bring forward the informant to defeat that claim.
The key is to keep the informant as distant from the final search and arrest as possible. Avoid situations where the suspect can create a factual scenario that brings in the informant.
I realize that officers do sometimes fail to put such things in their reports. That's why we have to be curious and ask the officer lots of questions.
[This message was edited by John Bradley on 01-15-05 at .]
Of course a prviously reliable informant can provide the basis for a pc search. I can read the cases as well as the next person. The point is that we shouldn't have to be curious and ask questions. When officers have confidential information and use a pretext stop to act upon it I have zero problem...law enforcement is a competitive business and they should use every legal tool in the arsenal. If the fact that the officer had an informant is not in the report and I later have to tell the defense attorney under Brady, Giglio, Kyles and the rest and the issue is then put before the jury it confirms all their worst suspicions. It seems most likely to be done in the bigger dope cases, too. If I am the defense attorney, two questions immediately leap to mind: What else have you left out of your report, officer? and Is there anything else you don't trust the DA with? What I am afraid of is that in some cases-rare cases-then officer doesn't disclose the existence of an informant because he knows the circumstances will compel disclosure of his identity. NOW we got trouble.
[This message was edited by BLeonard on 01-15-05 at .]
[This message was edited by BLeonard on 01-15-05 at .]
"We shouldn't have to be curious and ask questions?" Are you kidding?
From the moment we enter this world, we should be curious and ask questions. It doesn't stop because we have obtained a law license and supposedly follow a bunch of rules and think everyone else will follow them, too.
We are required to "seek" justice. The work "seek" rather than "achieve" is there because we live and work in a flawed world. There is no perfection in criminal justice or in any other field. Not doctors, lawyers, politicians nor priests can do their jobs by assuming they ever have all the information they need.
So, we constantly ask questions. The best questions are asked without waiting for the trial. In that respect, offense reports, because they almost always could be supplemented, provide a beginning for asking those questions.
We can treat the police with respect and use those questions as an opportunity to educate. Or we can demean them and point out how we would never make such silly mistakes. My experience is that human nature responds with more enthusiasm to the former.
Only the tiniest fraction of officers would conceal the existence of the informant. The heck of it is 99 times in 100 the CI's identity will still be protected. And I made a normative statement...that we shouldn't have to ask that question, not that we won't.
In "doing" justice, of course we have to exercise diligence. I am not talkng about mistakes or flaws (which anyone knows we must overcome on this side of the veil); I refer to willful and knowing acts.
If I find such a thing has ocurred, no amount of supplement can negate the Brady problem .
This thread has provided me all the information/ammunition I need to have what I hope will be a very constructive conversation with our investigators.
As always, I appreciate the conversation.
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