Is there anyone out there who does not put the CI's name in the indictment when the delivery was made hand to hand to the CI? What are the results of not naming the CI in the indictment?
Having been a drug prosecutor for years in the past, I learned early on not to indict a case involving a CI in the middle of the transaction. We tell officers that they can use that drug deal as PC for a search warrant, or as an introduction to go do a deal on their own. The CI might even be present during the deal, but not a part of the transaction. There are reliability problems inherent in using a CI, not the least of which is having to burn them in court and their ultimate unwillingness to testify. CIs are best used for introductions and confidential information. If they wanted anything else, they wouldn't be a CI.
Before law enforcement may use a CI, we require the CI be designated either testifying or non testifying. If a CI agrees up front to testify, then we will name him in our delivery indictment. If the CI has not agreed to testify, we simply use him as PC for search warrant or for introductions. You also need to be careful even if the delivery is to law enforcement with the CI present. In that case you may be required to Identify your CI under Brady.
Even if you know the ci will have to testify, why not indict as a Possession with Intent to Deliver. Your intent to deliver will be easy to prove since the actual delivery took place. It doesn't mean that your ci's identity will be protected, but at least it won't as easily be found in court records. And, if you plea the case, maybe you won't have revealed your ci at all.
We generally charge CI-buys as possession w/intent. Only rarely do we ever name a CI in an indictment - and then virtually always for delivery of marihuana, since there isn't PCS w/ Intent for wacky weed.
We prefer the hand-to-hand kind of deals with an undercover officer, but we have tried the occasional CI-buy. Mixed results there.
And then when the defense attorney rips into your CI's record & addictions & his working arrangement w/ the cops, we follow that up in argument with the "catfish-stinkbait" argument.
"Ladies & gentleman, if you're gonna catch catfish, ya gotta use stinkbait...." My juries seem to have accepted this argument pretty well.
You certainly can indict and prosecute a case with a CI as the named recipient of a drug delivery. I don't recommend it.
As Dan suggests at the beginning of this thread, such prosecutions will always result in a trial more about the CI and police procedures than about the defendant. Although the Tulia cases did not involve a CI (it was an undercover officer), the case certainly showed us all how poor documentation and an unreliable witness can create lots of problems based on the public's perception of how fairly a case was made.
The better practice is to use a CI as someone to introduce the undercover officer to the dealer and then, eventually, make independent cases with the undercover officer as the recipient of the drugs. Those cases should be documented with recorded phone calls, videotape and surveillance photographs and notes.
While this approach is very difficult, it will result in far better results and will leave the jury and community to focus on the drug dealer's bad acts rather than the police department's techniques for catching the bad guy.
If you have never tried a case with a CI as your star witness, then you probably don't believe what I am saying. Go ahead and try it. Then get back with us and let us know how it went.
Virtually every drug delivery case I have tried utilized a CI. The techniques John mentioned above were utilized but with the CI, not an officer. That is:
1. The CI is thoroughly searched by Police
2. The CI is equipped with both a body bug that will transmit to a surveillance vehicle and with a recorder of some kind (preferably video).
3. The CI is tailed to the area of the buy
4. LE will monitor visually and through the body bug the CIs activity
5. Once the CI makes a buy, he returns to a "safe area" where he is debriefed, on tape, by LE.
6. The tape/video recording and drugs are recovered from the CI and he is again searched.
7. LE then listens to the tape and makes sure they corroborate the CIs debriefing.
We usually use our vehicles, not the CIs (harder for the CI to try and stash any dope and easier to set up with video/audio surveillance)
We always try to get 2-4 cases on each defendant to help ensure id
Of course, any CI used in this manner understands he will be testifying. They are usually paid but not "by the deal". They are paid a flat amount per day regardless of results.
With the demise of Task Forces, rural areas will be forced to utilize more CIs this way. Rural cops are known by the bad guys. Getting another officer from another agency for a sufficient length of time to do this type of operation is unlikely.
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