Confidential Informant Definition
The use of confidential informants is pretty common in drug cases.
Confidential Informant Case Law
The confidential informant case law says due process requires and demands that these contracts be enforced against the government.
The principle for enforcing cooperation agreements arises under the due process clause of the fourteenth amendment. State v. Wacker, 688 N.W.2d 357, 362 (Neb. 2004); People v. Manning, 672 P. 2d 499, 504 (Colo. 1983). “Generally, fundamental fairness requires that promises made during plea-bargaining and analogous contexts be respected.” Wacker, 688 N.W.2d at 362.
Contract Principles Apply
Further, courts construe cooperation agreements under contract principles.
Cooperation agreements are construed strictly against the government and courts should not hesitate to scrutinize the government’s conduct to ensure it comports with the highest standard of fairness.
Confidential Informant Agreement
In addition, a confidential informant agreement does not need to be in writing, although courts prefer they be put down in writing is preferable.
However, whether the agreement is in writing or conveyed verbally, police officers have the power, by their words, to bind the prosecution to a resolution that is enforceable.
Finally, words employed with ambiguous meanings should be carefully considered but, in the end, should be construed against the government, especially when those words are relied upon to persuade a defendant to act in exchange for dismissal of pending charges.
Confidential Informants Are Recruited After An Arrest
What happens after a drug arrest?
A pretty common scenario after a drug arrest goes something like this:
- Defendant is brought into an interrogation room very soon after the arrest. No paperwork or processing has been done yet.
- Cops have found something, and the accused knows it.
- Eventually, after the defendant has conceded his involvement the topic of conversation switches to the options facing the defendant.
- There are always two doors he is told he can walk through. This is where they start talking about what he can do to “help himself out.”
This is typically who most confidential informants are recruited and pressured to cooperate with police.
Confidential Informant Charges Dropped
Where the government enters into an agreement with a prospective defendant and he acts to his detriment in reliance on the agreement, as a matter of fair conduct, the government is required to honor such an agreement.
Often defendant’s have to make full confessions to their own crimes. In exchange, the state agrees that confidential informant charges are dropped or dismissed.
It would be unfair and a due process violation to allow the prosecution to exploit a confidential informant, have that person incriminate themselves, use that person for information then turn around and charge the informant with their own crimes.
Motion To Dismiss
Below are a two Illinois case where the state charged an informant with their own drug crimes even though the defendant had agreed to become a confidential informant for the police.
In each case the defendant had to file a motion to dismiss in order to enforce their agreement with the police.
People v. Stapinki
People v. Stapinski, 2015 IL 118278 (August).Episode 100 (Duration 12:43) (defendant charged with his own drug crime even the police told him they would not charge him).
This case began for defendant when the police, pretending to be the postal service, delivered ketamine to his home.
Part of the problem here was that the agreement of cooperation between the defendant and the police was not written down and the state’s attorney was not brought in to sanction or document it.
Defendant said that he was promised that charges would not be filed against him for the ketamine if he helped the police arrest the person or persons he was suppose to take it to.
The police say the agreement did not include a promise that defendant would not be charged. They say he was only told that they would put in a good word for him with the State’s Attorney.
Then defendant would have to cooperate and help the police arrest three more unrelated drug dealers.
Defendant did not help with the other arrests, and they charged him.
State Concedes An Agreement & A Broken Promise
The state conceded that defendant was promised a dismissal for his help with the arrest of at least the big fish. The state conceded that the promise was broken.
The Illinois Supreme Court said the governmental conduct here “shocks the conscience” and violates the “decencies of civilized conduct.” ¶ 55. This is pretty close to saying this was structural error.
The Illinois Supreme court ordered that the drug charges filed against Defendant be dismissed.
People v. Marion
This is another case involving broken promises to an informant by the police. People v. Marion, 2015 IL App (1st) 131011 (May 2015) (appellate court enforces the cop’s deal with defendant that they would not charge him after stopping him but then proceed to charge him anyway).
People v. Banks
People v. Banks, 2020 IL App (2d) 180509 (March). Episode 754 (Duration 12:48)
Defendants conviction and sentence of 17 years needs is reversed because the state broke their contract with defendant.
The court in this case held that the charges filed against the defendant had top be dismissed because the defendant had entered into an agreement with police.
The police are the ones who violated the confidential informant contract by rushing to file charges against the defendant in an unreasonable amount of time.