Principles of the Law, Policing

An agency’s initial decision to use, and to continue to use, a particular informant should be based on careful review of:

• (a) safety concerns, regarding the public and the informant, in light of ongoing and potential criminal activities;
• (b) the intrusiveness of the use of the informant;
• (c) the value of the information sought or provided by the informant;
• (d) the reliability of the information provided by the informant, both at present and in the past;
• (e) the informant’s background and ongoing conduct, including criminal history and prior relationships with law enforcement;
• (f) whether the informant is represented by counsel;
• (g) adequate, independent supervisory approval; and
• (h) verification to ensure the informant’s existence.

Comment:

a. Initial review. In the past, agencies entered relationships with informants in informal ways, not governed by policy, and without careful internal review. An informal contact with a person may be appropriate if it is only to acquire limited information, such as a tip. But for informants, as defined in this Chapter, careful regulation is warranted. The focus of this Section is the initial pre-screening of an informant, but an agency’s use of an informant should be subject to ongoing review, particularly as the use of the informant and the accompanying risks evolve over time.

b. Value and nature of informant information. The value of the informant should be weighed—at the time an agency decides to use the informant and on an ongoing basis—against each of the concerns identified in § 12.01: (1) public safety; (2) informant safety; (3) intrusiveness; and (4) reliability. The value of the information obtained by an informant necessarily will depend on its nature and the purpose for which it is being used. Some informant information can be corroborated independently. Of greatest concern is substantial information that cannot be corroborated. As part of its decision to rely on the informant, a law-enforcement agency should consider whether the criminal investigation itself is of sufficient importance, and the information or informant sufficiently reliable, to justify relying on the informant, and whether there are alternative means of obtaining such information.

c. Vetting the informant. A law-enforcement agency should carefully review an informant’s background and ongoing conduct before relying on the informant. The agency should examine the informant’s prior relationships with law enforcement, and concerns raised by such prior relationships. The requisite degree of review may depend on the use to which the informant is put. If law enforcement is providing a small benefit to an informant for a relatively minor tip or lead, which can be verified independently as to its reliability, then the level of screening necessary is minimal. On the other hand, if law enforcement anticipates an ongoing relationship for a more serious criminal investigation, and greater benefits are provided to the informant, then comparatively more intensive and ongoing vetting should occur.

The background of the informant is relevant to each of the four concerns identified in § 12.01 regarding the use of informant-provided evidence: (1) public safety; (2) informant safety; (3) intrusiveness; and (4) reliability.

d. Public safety. An important part of the initial decision to rely on an informant involves consideration of what criminal activity will occur as a result.Relying on an informant might help to investigate and end criminal activity, but it also might facilitate ongoing criminal activity. Section 12.05 provides rules regarding ongoing criminal activity by informants.

e. Informant safety. In deciding to use, and to continue using, an informant, a law-enforcement agency should consider carefully the risks to the informant’s safety. Informants who are members of vulnerable populations may be at particular risk. See § 12.01.

f. Intrusiveness. In deciding to use an informant, a law-enforcement agency should consider the degree of intrusiveness such use entails, and any privacy interests implicated. The privacy interests potentially implicated include those of individuals, as well as various groups, religious organizations, and the press. A policing agency should not assume that the intrusive use of an informant will go undetected in the community in which the informant is operating. Whether or not it is detected, any unnecessary intrusion should be minimized or avoided altogether, particularly because it is inevitable that an informant will gather private information unrelated to criminal activity.

g. Reliability. Law-enforcement officials should consider at the outset and on a continuing basis whether the informant is a source of sufficiently reliable information. See § 12.04 (detailing what a reliability review should entail). Information about the informant’s prior relationships with law enforcement may shed light on his or her reliability, as may information about the informant’s ongoing activities and access to information. Other factors that should be considered include whether the information provided by the informant can be corroborated, what type of information is provided, and to what uses law enforcement intends to put any evidence provided by the informant. A jailhouse informant who offers to obtain a cellmate’s confession may pose particular reliability concerns.

h. Screening and supervision of confidential informant use. A special concern arises with regard to the use of informants whose identity is not shared within an agency—so-called “confidential informants.” The danger is that their existence may be wholly fabricated. For that reason, policing officials must, at a minimum, disclose the identity of confidential informants to supervisors, who in turn should verify the informant’s existence.

Reporters’ Notes

1. The need for policy regarding prescreening of informants. There are a wide range of relationships that police have with informants, from informal relationships with people in the community—including incentivized persons—to formal, ongoing relationships. The type of screening that should occur regarding an informant should depend on how formal the relationship is, the type of information that an informant provides to law enforcement, and how that information will be used. The screening of an informant, therefore, requires a multifactor inquiry based on the type of informant, the type of criminal investigation, the information provided by the informant, the manner in which the informant will be used, and the interests implicated by the anticipated uses of the informant. Further, the screening of an informant should be an ongoing process, as the nature of the relationship and the information being obtained evolves.

Many existing policies focus on judicial supervision of the use of informants, rather on screening in the first instance by law enforcement. Thus, states have enacted legislation requiring that police collect and prosecutors disclose information regarding jailhouse informants. See, e.g., Tex. Code Crim. Pro. art. 39.14(h-1) (requiring state to disclose information relevant to the credibility of an in-custody informant). What is needed are rules requiring that law enforcement make sound decisions in the first instance regarding whether to rely on an informant. The same prescreening should be conducted for informants employed by private actors; agencies cannot delegate to others the obligation to assess whether or not to rely on an informant.

Some existing law-enforcement policies and regulations reflect the range of informant relationships and the potential interests implicated by using an informant, but they do not require adequate screening of all informants in advance. Some statutes and policies focus on particular uses or types of informants, such as the use of jailhouse informants or confidential informants. For example, the Federal Bureau of Investigation conducts “suitability reviews” for informants labeled as “confidential,” engaging in a multifactor inquiry that considers the potential importance of the information sought, the public-safety dangers of relying on the informant, the potential vulnerability of the informant, and costs to privacy, among other relevant factors. See U.S. Dep’t of Just., Off. Inspector Gen., The Federal Bureau of Investigation’s Compliance with the Attorney General’s Investigative Guidelines: Chapter Three: The Attorney General’s Guidelines Regarding the Use of Confidential Informants (2005). The Federal Bureau of Investigation (FBI) policy applies to comparatively more formal uses of informants; indeed, it includes a separate category for long-term informants who have been registered for more than six years. Id. Another model is provided by the International Association of Chiefs of Police (IACP), which sets out a detailed list of information that should be assessed when screening confidential informants, but which is useful for informants in general. The IACP lists identifying criteria to be included in the screening report, including:

• Age, sex, and residence
• Employment status or occupation
• Affiliation with legitimate businesses and illegal or suspicious enterprises
• Extent to which potential information, associations, or other assistance could benefit a present or future investigation
• Risk of adversely affecting an existing or future investigation
• Extent to which provided information can be corroborated
• Prior record as a witness
• Criminal history, to include whether the informant is the subject of a pending investigation, is under arrest, or has been charged with a crime
• Risk to the public or as a flight risk
• Substance-abuse concerns
• Relationship to anyone in law enforcement
• Any prior or current service as a confidential informant with this or another law-enforcement organization.

IACP L. Enf’t Pol’y Ctr., Confidential Informants: Concepts & Issues Paper 1 (2017), available at https://www.theiacp.org/sites/default/files/all/c/ConfidentialInformantsPaper‌2017.pdf.

These Principles adopt the view that statutes and model policies should provide comprehensive guidance to law enforcement for all types of informants, and not just particular subcategories. At the same time, this Chapter recognizes that in extending such policy considerations to all types of informants, there must be a recognition that some limited or informal uses of informants will not implicate the same considerations as more extended or particularly concerning uses, such as that of informants who are incarcerated or who are facing incarceration.

2. Factors to be considered when prescreening informants. Informant use implicates public-safety concerns, which should be considered at the outset and on a continuing basis. The FBI confidential-informant policy asks “whether the person is reasonably believed to pose a danger to the public or other criminal threat.” Office of Inspector General, supra. Law enforcement should consider the risk of ongoing criminality and weigh it against the importance of the information received. If the use of the informant permits crime to continue at little or insufficient return, then the decision should be made not to use the informant.

An informant’s safety also should be considered. In recent years, lawmakers have taken action to address concerns regarding informant safety. For example, in 2017, the North Dakota Legislature passed “Andrew’s Law” following the death of Andrew Sadek, a student at North Dakota State College of Science, who died after working undercover for police in exchange for receiving a reduced sentence on a drug charge. The law adopted in response provides that law-enforcement officers “may not enter an informant agreement with a student enrolled in an institution under the control of the state board of higher education.” Id. at § 29-29.5-03. The law also states that “[a] law enforcement agency may not use a juvenile fifteen years of age or younger as a confidential informant.” N.D. Cent. Code § 29-29.5-02(1) (2017). And, a juvenile over the age of 15, but under the age of 18, may not be used as a confidential informant unless the juvenile is married, emancipated, serving in the active-duty armed forces, or subject to criminal charges, with certain other restraints. Id. at § 29-29.5-02(2). Other states and municipalities ban the use of certain juveniles as informants. San Diego County, California, prohibits the use of informants under 13 years of age without the consent of all of the following persons: (1) “[t]he juvenile’s parent or legal guardians”; (2) “[t]he juvenile’s attorney, if any”; (3) “[t]he court in which the juvenile’s case is being handled, if applicable”; and (4) “[t]he Chief Probation Officer or the authorized designee.” San Diego Cnty. Probation Dep’t: Pol’y Manual § 501.5 (2016), available at https://‌www.‌sandiegocounty.gov/content/dam/sdc/probation/Policies/Policy%‌20501%‌20‌Informants.pdf. Some police departments ban outright the use of juvenile informants under the age of 13 years. See, e.g., CSU Police Dep’t, San Luis Obispo: Pol’y Manual § 608.3.1 (2019), available at https://‌afd.‌calpoly.edu/police/police-administration/policies/600/‌608-confidential-informants.pdf (noting that even the use of informants “between the ages of 13 and 18-years is only authorized by court order”). However, as an American Civil Liberties Union report notes, “[t]here is currently no absolute ban on using children as [confidential informants].” Am. C.L. Union, Dr. Delores Jones-Brown & Dr. Jon M. Shane, An Exploratory Study of the Use of Confidential Informants in New Jersey (2011), available at https://www.aclu-nj.org/files/1513/1540/4573/‌0611‌ACLU‌CIReport‌.pdf. The report urges that “[u]nder no circumstances should a juvenile below the age of 16 be used as a CI. If a juvenile is used, then a parent or guardian must sign a consent waiver.” Id.

A model for best practices concerning internal vetting and review, as well as disclosure to the informants themselves, comes from a Florida statute known as “Rachel’s Law.” It provides that law-enforcement agencies must:

• (a) Inform each person who is requested to serve as a confidential informant that the agency cannot promise inducements such as a grant of immunity, dropped or reduced charges, or reduced sentences or placement on probation in exchange for serving as a confidential informant.
• (b) Inform each person who is requested to serve as a confidential informant that the value of his or her assistance as a confidential informant and any effect that assistance may have on pending criminal matters can be determined only by the appropriate legal authority.
• (c) Provide a person who is requested to serve as a confidential informant with an opportunity to consult with legal counsel upon request before the person agrees to perform any activities as a confidential informant. However, this section does not create a right to publicly funded legal counsel.
• (d) Ensure that all personnel who are involved in the use or recruitment of confidential informants are trained in the law-enforcement agency’s policies and procedures. The agency shall keep documentation demonstrating the date of such training.
• (e) Adopt policies and procedures that assign the highest priority in operational decisions and actions to the preservation of the safety of confidential informants, law-enforcement personnel, target offenders, and the public.

Fla. Stat. § 914.28 (2019). Further, the statute requires that law-enforcement agencies using confidential informants “establish policies and procedures addressing the recruitment, control, and use of confidential informants.” Id. Policies and procedures must also be put in place “to assess the suitability of using a person as a confidential informant.” Id. The statute requires that law-enforcement agencies using confidential informants “establish written security procedures” that, among other things, provide for certain secure records of the identity of confidential informants and recordkeeping of those who access such information.

The use of informants can implicate concerns about individual privacy, group privacy, associational and speech rights, and whether the informants hold positions of trust in their communities. Each of these concerns should be weighed carefully when considering whether to use an informant. Thus, the FBI, as part of its suitability reviews for confidential informants, considers “whether the person is a public official, law enforcement officer, union official, employee of a financial institution or school, member of the military services, a representative or affiliate of the media, or a party to, or in a position to be a party to, privileged communications (e.g., a member of the clergy, a physician, or a lawyer).” Office of Inspector General, supra.

Finally, reliability should be considered as part of the vetting around the use of informants. See § 12.03. Due to reliability concerns, agencies may decide not to rely on entire categories of informants. For example, the use of incarcerated informants can create an environment in which inmates are incentivized to fabricate statements for their own benefit. Clear policy may be necessary to deal with such incentives. See, e.g., Dodd v. State, 993 P.2d 778, 783 (Okla. Crim. App. 2000) (“[c]ourts should be exceedingly leery of jailhouse informants, especially if there is a hint that the informant received some sort of a benefit for his or her testimony.”). In addition to any categorical rules, there must be careful prescreening of potential informants that fall within a permitted category.

3. Confidential informants. Although all informants discussed in this Chapter are to some extent confidential, in that their cooperation with law enforcement is not fully public, some informants are kept more confidential than others. This is true even within a law-enforcement agency itself. If an informant is on the more confidential end of the spectrum, there are greater risks to public safety, as well as greater concerns regarding reliability and intrusiveness. Office of Inspector General, supra (“[W]hen the FBI formalizes a relationship with a confidential informant, both the investigative benefits and the risks are substantial.”). For these reasons agencies should, in policy and procedure, ensure that potentially confidential informants are subject to rigorous screening and their use is delineated carefully. Citing a wide range of hazards that stem from the use of confidential informants, including regarding their reliability, the IACP recommends that certain screening reports be prepared before utilizing confidential informants. IACP L. Enf’t Pol’y Ctr., Confidential Informants: Concepts & Issues Paper 1 (2017), available at https://‌www.theiacp.org/sites/default/files/all/c/‌ConfidentialInformantsPaper2017.pdf. The IACP also recommends that these reports be reviewed annually as a “check[] on the worth of CIs and the manner in which they are being managed by their handlers.” Id. at 3. The agency must “define the roles and responsibilities of all individuals in the chain of command, from the chief executive to the handler.” Id. Some of those individuals must then be in charge of developing and maintaining the “master CI files,” creating some sort of “indexing system,” and “[a]ccess to CI files.” Id. Further, “[t]ight security of CI files is imperative for officer and CI safety and to ensure the integrity of the entire CI management system.” Id. The IACP describes the need to restrict access to these files. Id. As a matter of internal regulation, agencies should require that officers disclose and verify the identity of confidential informants to supervisors, to prevent fabricating the existence or the use of confidential informants. For that reason, the Los Angeles Police Department similarly requires that: “[a] commanding officer shall require that the identity of informants be disclosed to him/her.”L.A. Police Dep’t, L.A. Police Department Manual: Policy § 544.30, available athttp://www.lapdonline.org/lapd_manual/volume_1.htm#544.