Prosecutors and Police officers routinely use confidential informants to gather information and perform controlled buys in narcotics cases, firearms cases or cases involving other contraband. Often, police will use what a confidential informant tells them to establish probable cause when they seek to obtain a search warrant. Thus, confidential informants can play a significant role in many New York drug cases.
However, police and prosecutors generally refuse to a provide the defense with the identity of the confidential informant because once an informant’s identification is known, they can no longer be used by police and may face retaliation. At the same time, if a defendant cannot question police about the existence of the informant, there is the concern that the informant may not exist and that police fabricated the informant to get around the warrant requirement.
To alleviate these concerns, courts require that the prosecution present the confidential informant in an ex parte hearing (outside the presence of the defendant). Recently, a New York appellate court issued an opinion in a case discussing the proper procedure a court should follow when presented with a case in which the prosecution is relying on a confidential informant’s testimony to develop probable cause.
In that case, police used a confidential informant to gather information that was ultimately included in a warrant application leading to the defendant’s arrest. The person alleged to be the confidential informant died before trial. The defendant requested a hearing to confirm the existence of the informant, but the trial court denied the defendant’s request. The defendant appealed. On appeal, the court reversed the case, and ordered the lower court conduct the necessary hearing to determine if the prosecution was able to establish that the confidential informant did indeed exist.
The lower court conducted the ex parte hearing in which the alleged informant’s death certificate was presented. The lower court determined that the prosecution “could not produce the informant despite their diligent efforts and had established the existence of the informant through extrinsic evidence.” The appellate court then resumed review of the case, determining that the lower court’s findings were erroneous.
The court explained that the prosecution only established
- that a confidential informant allegedly made a statement;
- that police obtained a warrant using that statement; and
- that a death certificate was later issued for a person with the same name as the alleged informant.
Notably, the court held, there was no evidence that the alleged informant made any of the statements that were attributed to her. Thus, the court held that the prosecution failed to meet its burden. The court explained that the prosecution could have met its burden by presenting testimony from a police witness, but that because no such evidence was presented “there is nothing to refute the possibility that the police fabricated the statements” in the informant’s statement.
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