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In Colorado drug crime enforcement cases a very large number of the cases arise out of informant based so called “buy bust” operations. In order to formulate a solid criminal defense theory to these cases for what went wrong – you must first know what should have happened. This excellent article addresses what can go wrong and why and how these arrest / search operations should be conducted. H. Michael Steinberg Colorado Criminal Defense Lawyer.
The following “manual” is an invaluable tool for defense attorneys that suggests areas of inquiry when cross-examining law enforcement officers.
During the last 20 years, police have killed at least 40 innocent people while conducting wrong-door raids. According to a study by the Cato Institute, “Because of shoddy police work, over-reliance on informants, and other problems, each year hundreds of raids are conducted on the wrong addresses, bringing unnecessary terror and frightening confrontation to people never suspected of a crime.” The Cato Institute called the botched paramilitary police raids “an epidemic of isolated incidents.”
There have been at least three investigations of botched search warrant raids that offer far more troubling explanations for the home invasions.
The blame is placed on:
Willful disregard for police standard operating procedures governing the use of informants4 and conducting controlled buys
Use of “cookie cutter” affidavits containing boilerplate language from a computer program
Blatant lies in search warrant affidavits
Creation of phantom informants
Supplying drug exhibits “purchased” by a phantom informant and
Planting drugs in homes when no drugs are discovered during a search.
There is an investigative technique known as the controlled buy that can ensure accountability. Far from theoretical, it is a practical approach to corroborating the probable cause used to obtain a search warrant. If mandated for all search warrant investigations, it could put a stop to wrong-door raids and exorcise phantom informants.
One of the first skills taught to detectives newly assigned to drug enforcement units is recruiting and utilizing confidential informants. During training investigators receive what appears to be a nearly universal law enforcement admonition: never trust an informant. The warning is the underpinning for successful controlled buys and uncompromised search warrants.
Agents routinely receive information from informants regarding criminal activity and the location of contraband. The illegally possessed items are usually narcotics, stolen property, or illegal weapons. All are available for sale to trusted customers including informants. The investigation that follows will usually develop information intended to establish probable cause to support the issuance of a search warrant.
The controlled buy is the investigative technique used to corroborate the claim of a confidential informant (CI) that contraband is located at a particular location. The controlled buy is also referred to as an undercover buy, a controlled informant buy, or an informant buy.
While the rules may vary slightly between law enforcement agencies, what follows should be standard police practice for controlled buys:
Thoroughly debrief the CI
Search the CI and his vehicle if used to travel to the targeted location
Provide CI with buy money and install recorder or transmitter
Follow CI to the buy location
Observe the CI enter and exit the targeted premises
Follow CI directly to a pre-arranged location for a meeting that occurs immediately after the buy
Collect evidence and electronic equipment from the CI
Search the CI and vehicle again for any contraband or money and
Debrief the informant and obtain a written and signed statement.
The procedure corroborates the informant’s account of the events occurring before, during, and after the controlled purchase of evidence. The practice also ensures that police officers, not the informant, identify the residence or business to be raided. Each step must be followed. There should be no short cuts.
The events are recounted in the affidavit in support of the search warrant and sworn to by the affiant officer. The procedure allows the issuing magistrate judge to determine how the informant came by the information or evidence and how the affiant corroborated the account.
Procedures for fully identifying and documenting new informants can vary dramatically between agencies. Some police departments require as little as a criminal background check to determine if the informant is a fugitive. The informant’s file may be nothing more than an index card kept in the control agent’s desk.
More progressive police departments and federal agencies have comprehensive informant guidelines that require the equivalent of a full field background investigation for prospective informants. In those agencies a file is maintained that contains the CI’s true identity, fingerprints, photograph, and any code names or code numbers assigned to protect the informant’s identity. The file also tracks the informant’s productivity and payment records. The file is kept in a secure location with access limited to specified officers and supervisors.
The complexity of the documenting process usually indicates how many times the department has been burned by its informants. Whether or not an individual is authorized to become an informant is a decision generally made by the recruiting agent’s immediate supervisor.
The documenting requirement also ensures that the source actually exists. The creation of “phantom informants” is a practice that has plagued police departments for decades. Some officers resort to creating informants in an effort to streamline the search warrant process. Their ends justifies the means approach to law enforcement is often referred to as noble cause corruption.
There have been cases where phantom snitches were employed by detectives in “home invasion by warrant” schemes. The search warrant was a means of gaining entry into homes with armed police support to steal drugs, drug money, and other valuables.
Using a phantom informant for a controlled buy is only as difficult as departmental informant guidelines permit. Stringent guidelines make the practice nearly impossible. Loose guidelines make the practice an appealing and profitable alternative.
The control agent must conduct a complete debriefing of the informant. The initial interview begins the process of evaluating the value and veracity of the source. During the interview, it is imperative that the officer remember the number one rule in informant handling mentioned above, namely, never trust an informant.
All meetings with CI’s should be attended by a second officer. Informants have proven to be the leading cause of integrity complaints against agents. Nothing leaves an officer more vulnerable to allegations of wrongdoing than meeting with or paying a cooperating individual alone. The second agent minimizes the risk of unfounded accusations being made by a disgruntled informant.
The investigator must determine what motivated the informant to come forward with information. When a spouse or paramour informs on a partner, revenge as a motive should be suspected. The CI could be attempting to use the police as a lever in a domestic quarrel or a custody dispute. An informant holding a grudge and with access to the targeted location could easily plant drugs to further his or her own agenda.
Following the debriefing, the value of the CI’s information is assessed by the control agent’s supervisor. The case will move forward if the criminal conduct described by the informant meets the agency’s requirements for initiating an investigation. The criteria for advancing search warrant cases often center upon whether real or personal property can be seized. Valuable and forfeitable property will quickly move the investigation up the agency’s ladder of importance. Policing for profit can become the underlying motive for the investigation.
The debriefing also begins the process of fully identifying the location where contraband is believed to be possessed. All that is required of police is that the description of the targeted structure be detailed enough that the officer assigned to execute the search warrant can, with reasonable effort, identify the place intended to be searched. Yet the frequency of wrong-door raids illustrates the obvious — verifying the exact address does not always occur.
During the planning stage, the informant should be taken into the field by the control agent to point out the exact location where the buy is going to take place. If the buy is to be made from a duplex or an apartment building with multiple doors, the CI must point out to the agent which door he will use. Remarkably, these steps are often ignored.
The process need not expose the CI’s role. He can be driven to the location in a surveillance vehicle with darkened windows. The investigator will then be able to obtain both a physical address and description of the targeted location.
A thorough debriefing assists in fully identifying the trafficker before the buy occurs. The informant may not know the suspect’s full name but only refer to him by a nickname or an alias. The nickname may be recognized by the interviewer and thus result in full identification of the subject. Other officers may recognize both the nickname and the address as having a reputation for criminal activity. Their knowledge can serve to corroborate the informant’s account in assessing whether the case should move forward.
The informant may also have a residential telephone number or cell phone number for the suspect. Subscriber information can be obtained through a criss-cross directory. Nonpublished telephone numbers and toll records can be obtained from the service provider with a subpoena. The same holds true for cellular telephone numbers and records. When the exact address is determined, utility companies can be contacted to determine the name of the individual receiving services. A subpoena may be required to obtain the information and a copy of the original credit application. While the named applicant may not be the suspect, the information often provides investigative leads.
After a verifiable name and date of birth for the subject are obtained, photographs also become available. Law enforcement agencies can request copies of the color photograph taken for a driver’s license. Targets of investigation without licenses may have identification cards or arrest photographs on file with a local police agency. Upon receipt of the photograph, the informant is given the opportunity to identify the subject from a group of photos.
The CI should also be questioned about vehicles the subject has been seen driving or that are routinely located at the target location. Agents can conduct surveillance and obtain license numbers of vehicles frequenting the residence or business. The information can serve to further corroborate the source’s accounts of criminal activity. The Supreme Court has recognized the value of corroborating the informant’s tip by independent investigation.
To maximize the effectiveness of a search warrant, the informant must be effectively questioned regarding the illegal items he has observed while inside the premises. Obviously, in a narcotics search warrant the objects to be searched for are drugs. Because drugs are easily concealed, agents are allowed wider latitude in the extent of their search. An agent lawfully searching for narcotics may inadvertently discover an illegal firearm. Although weapons were not listed as an item to be searched for in the warrant, seizure of a gun is constitutionally allowed under the plain view doctrine.
Agents often get tunnel vision in their debriefing approach. A detective assigned to recover stolen motorcycles may debrief his informant only about the location of the stolen vehicles. The informant should also be questioned about other contraband items used or possessed within the premises to be searched. A warrant directing agents to search only for motorcycles would not allow officers to open desk drawers. If the informant reports having observed narcotics on the premises in addition to the stolen motorcycles, drugs should be listed as items to be seized.
A thorough debriefing can also elicit information ensuring that items having evidentiary value that might be overlooked will be included as items to be seized. Many criminal enterprises utilize traditional paper files or personal computers to track their business activity. Those items need to be identified as objects of the search.
The full inquiry of what was observed inside the premises by the informant addresses valid officer safety issues. Many residences used for drug dealing are heavily fortified. Steel doors, bars across ordinary doors and windows, and booby traps are common. The entry team needs to be aware of any impediments to a fast and effective entry. A no-knock search warrant may be necessary.
Some agencies have forms that include a full range of questions for the interviewing detective to ask the informant. The questions, combined with the detective’s experience, can illicit far more detailed information than a rambling interview.
What is the nature of the informant’s relationship with the suspect? How long have they had this relationship? These questions must be answered. The longer the relationship and type of relationship will have a bearing upon the credibility of the informant’s information. A live-in paramour should know more about a criminal operation than an occasional visitor.
A thorough search of the informant prior to the buy is the only method that reasonably ensures he does not supply the contraband himself. The size of the item the informant is instructed to purchase dictates the extent of the search. Many agencies require only a pat down. Others require a strip search, particularly when the informant is purchasing a concealable amount of drugs or other small item.
If that is the case, and policy dictates, body cavities should be checked. An officer of the same sex as the CI should conduct the search. Many agents do not like strip-searching informants. Some agents resist the process because it is time-consuming. Others find the procedure distasteful. Officers have committed perjury when called to testify about the extent of their search. According to a former detective convicted of perjury in the Johnston shooting, “I have never seen anyone searched before they go into a house. I’ve never seen that done.”
The CI should be required to surrender the contents of pockets or purse to the control agent until after the buy is completed. Unless specifically authorized, the informant should not be allowed to carry a firearm during a controlled buy or while performing any activity supervised by the police.
Informants do not like to be searched. CIs with a “police buff” mentality find the procedure degrading. Some object to the search because it makes it either difficult or impossible to supply the drugs themselves instead of making the purchase from the target.
The informant’s vehicle, if used to drive to the buy location, must also be thoroughly searched. Agents should make every effort to determine whether there are concealed compartments in the vehicle.
Probable cause requires the affiant to provide enough information so there exists a fair probability of the existence of criminal activity at the location to be searched. The search of the informant and his vehicle serves to further that probability. It allows the magistrate judge to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
The case agent provides the informant with the funds for the purchase of evidence. The informant should sign for the money. The term marked money is often mistakenly used to describe the buy money. The currency is not marked. The serial numbers are recorded on paper or memorialized in a report. Some agencies simply Xerox the notes.
Buy money, or official advanced funds (OAF), is serialized for two purposes. During a search warrant, all funds discovered in the premises or on the person of the target are seized. The serial numbers on the seized funds are compared with the prerecorded notes used during the controlled buy. The discovery of OAF during the execution of the search warrant is extremely damaging evidence.
The notes are also serialized to assist in recovery efforts in the event of theft by either the informant or the target of the investigation. Robbery is a common occurrence during a buy operation.
The informant may be required to wear either a concealed tape recorder or a transmitter during the controlled buy. The tape recording produced during the purchase is maintained as evidence. When properly utilized, concealed recorders produce a far superior tape recording than that produced via a concealed transmitter.
Generally, transmitters are used for the security of the individual wearing the device. The equipment allows monitoring agents to hear what occurs during the undercover meeting and to react accordingly. Unfortunately, body bugs are notoriously unreliable. If a tape is produced, it may be unintelligible.
Many informants are reluctant to wear body wires or recorders. They argue that the devices, if discovered by the target of the investigation, place them in a life-threatening situation. Advances in technology, however, have made the devices nearly undetectable.
Once the informant and the informant’s vehicle have been searched, both must be surveilled until the operation is completed. Constant surveillance eliminates the possibility that the informant obtained contraband from any place other than the targeted location. The informant must be directed to make no stops en route to the buy location. The surveillance team should personally observe the informant prior to the buy. If that is not possible, they should be provided with a photograph of the CI. Surveillance agents are often given little more than a clothing and physical description of the informant. This is a mistake that can undermine the investigation.
Members of the control agent’s team should establish pre-buy surveillance of the targeted address. The agent following the CI to the buy location is directed to maintain radio or cell phone communication with the surveillance team. It is the agent’s job to alert them of the CI’s impending arrival. The surveillance team must make every effort to observe the informant enter the targeted location.
Agents must maintain surveillance of the premises until the informant exits. The CI should then be followed from the buy location to the predetermined meeting place. The surveillance team verifies that the informant met with no one from the time he or she departed the targeted address until the post-buy meeting occurs. Following the informant’s departure, at least one agent should maintain short-term surveillance of the buy location. Accomplices and sources of supply are often identified through post-buy surveillance.
The events observed during the surveillance should be memorialized in a report for the case file. The surveillance report should identify which agent observed each event during the controlled buy.
Upon arrival at the post-buy meeting, the informant surrenders the evidence and electronic equipment to the control agent. Original containers holding evidence should be submitted to the agency’s laboratory for latent fingerprint examination. Once again, the informant must be thoroughly searched. It is not unusual for informants to attempt to steal some of the buy money or evidence. If the informant’s vehicle was used to travel to the buy location, it should also be thoroughly searched.
The control agent may have the CI telephone the target during the post-buy meeting. The call is tape recorded and used to elicit conversation about the transaction that just transpired. The post-buy telephone call tactic is usually employed if the CI had not consensually tape recorded the earlier transaction or if the recording equipment malfunctioned. The tape recording of the telephone conversation is retained as evidence.
The informant must be debriefed following the purchase. Obtaining the names or physical descriptions of all persons present and participating in the transaction is essential.
The amount and location of contraband observed during the controlled buy must be determined. The information assists in assessing the immediacy for obtaining the search warrant. Undue delay may allow the information to become stale or for evidence to be sold or moved. Many law enforcement agencies require the informant to provide a written statement. The practice memorializes in the informant’s own words the events that occurred during the undercover purchase. The statement makes it more difficult for the recalcitrant CI to claim witness amnesia.
Federal law enforcement agencies each have their own policies on informant statements. As an example, the Drug Enforcement Administration (DEA) requires a statement when the informant has provided information or has participated in any activity that may require his testimony. All relevant information must also be reported in the investigative report. The DEA uses the format below.
Heading: The heading should contain the informant’s code number or code name the date, time, and location of the statement the names of the agents taking the statement and a brief description of the events covered.
Body: The body of the statement should be in the informant’s own words. If prepared by the agents for the informant, it should be reported in the body of the statement.
Conclusion: The conclusion should state that the informant has read the foregoing statement consisting of __ pages that he or she has initialed each page and all corrections that it is true and correct to the best of his or her knowledge and belief and that the informant gave the statement freely and voluntarily, without threats, coercion, or promises.
Agents routinely prepare statements for informants who are unable to write their account. The original statement should be signed by the CI and witnessed by two agents. The original is held in the informant’s file. State and local agencies have promulgated their own policies regarding informant statements. The practice appears more prevalent among departments that have grown dependent upon informants and have experienced difficulties in their use.
Cash payments made to an informant by his control agent for services rendered must be witnessed by at least one other agent. Police are prohibited from paying informants with drugs or other contraband. However, the unauthorized practice of rewarding CIs with narcotics does occur. A “drugs for information” scandal led to the January 2008 arrest of two Brooklyn, N.Y., narcotics detectives and the transfer of four high-level supervisors.
Wrong-door raids are the direct result of inadequate internal supervision of investigators utilizing informants, conducting controlled buys, and obtaining search warrants. Coupled with an absence of meaningful judicial or prosecutorial oversight of search warrant investigations, the number of wrong-door deaths will continue to rise.
* Gratefully excerpted from an excellent article entitled “Wrong-Door Raids, Phantom Informants, and the Controlled Buy” By Dennis G. Fitzgerald National Association of Criminal Defense Lawyers