In the 100th Episode of the Criminal Nuggets Podcast we discuss one drug informant contract that didn’t turn out how Defendant thought it would.
This makes the second case this year where police break a promise to an informant.
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.”
You know how it goes…
“Why you gonna take the fall for this guy or that guy?”
“This is a six year minimum, non probationable, you are in the big leagues now man.”
“You only have two options here. Take the hit, do your time and let everyone else walk away OR … cooperate, work with us, turn informant and help us make arrests of the big boys and get your life back.”
“What's it going to be?”
Option A or Option B?
This case involves a defendant who chose option B.
He turned informant, cooperated with drug investigators, gave up the bigger fish. He was promised he would not be charged in exchange for his cooperation.
…and then, of course, they charged him.
This makes the second case in the Illinois court system involving broken promises to informants by the police. See also 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).
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.
So what do you think happened?
In court, the parties, of course, disputed the exact details of the “agreement.”
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.
Apparently, the ultimate recipient of the drugs was a well known drug dealer in the area and the police were eager to finally arrest that guy.
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.
OH YEA, and 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
It is hard to say exactly what the deal was.
The state at argument before the Illinois Supreme Court 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.
With this concession the details of the rest of the agreement didn’t really have to be litigated anymore. This position rolled in nicely with the State’s overall argument.
Summary of State’s Argument Before Illinois Supreme Court
This is a paraphrase of what the State was saying to the Supreme Court.
“Yes, this guy’s deal was broken by the police. First of all, we the prosecutors were not a part of that agreement and it is fundamental that the police cannot make charging decisions for us. Second, you don’t have to dismiss the charges to provide an adequate remedy. Suppress his statement to the police and let's get on with it.”
Summary of Defendant’s Argument Before the Illinois Supreme Court
Defendant's argument to the Court was simple and straightforward.
Defendant argued that this is all much bigger than interpreting the legality of an agreement. This is bigger than just procedural due process.
I’m paraphrasing here but, Defendant was saying:
“ No, no, no, substantive due process rights are implicated here, your honors. This case is about the larger principle of you stepping into to curtail and combat authoritative, over reaching, and oppressive conduct of the police. You see, I did much more than just confess to my drug crime. Merely suppressing my statement would be an insufficient remedy for what happened to me. I was promised that they would not charge me if I cooperated…and you know what?
I cooperated. I believed what they told me and relied on their promise.”
Defendant emphasised that he did what was was asked of him.
Defendant argued his performance under the agreement included more than making incriminatory statements. He put himself out there. He wore a wire, risked exposure and retribution as a snitch and gave the police the drug dealer they wanted.
Mere suppression of statements would not return him to his pre cooperation position and dismissal of the charges against him would be the only fair remedy.
Illinois Supreme Court’s Decision
The Supreme Court agreed with the defendant.
The Court noted that this type of drug informant contract is the way of doing business in the drug war. The court saw them as a necessary thing.
… but the court also noted that the bargaining positions are not equal.
The government (police and prosecutors ) has the upper hand.
For this reason, the Court felt that extensive state and federal legal authority requires that governmental agencies deal fairly with a defendant in offers of immunity and contracts to cooperate.
Further, since the essence of due process is “fundamental fairness,” due process essentially requires fairness, integrity, and honor in the operation of the criminal justice system.
The Court felt that whether or not the cooperation agreement was “valid” in the sense that it was approved by the State’s Attorney, was not important. Even an unauthorized promise may be enforced by the courts on due process grounds alone if a defendant’s reliance on the promise has constitutional consequences.
The Illinois Supreme Court said the governmental conduct here “shocks the conscience” and violates the “decencies of civilized conduct.” ¶ 55.
The Illinois Supreme court ordered that the drug charges filed against Defendant be dismissed.
So What Does This All Mean?
This decision does not mean that all violations of a contract will rise to a constitutional violation. Informant contracts are not dead by any means.
It does mean these things should probably at least be written down.
…And I do think prosecutors serve their interests by going back and looking at the language in their contracts. Specifically, the stuff that sounds really one sided should really be reviewed for possibly implicating constitutional concerns.