Confidential Informants

In general

• [Information received from confidential tipsters and professional informants is treated differently than information received from a concerned citizen.]

Pawloski v. State, 380 N.E.2d 1230, 1232 (Ind. 1978)

• As a general rule an informant's reliability should be established before a finding of probable cause can be made. Reliability is usually shown by reference to (1) an informer's past record of reliability or (2) by extrinsic facts proving an informer's information reliable.

Pawloski v. State, 380 N.E.2d 1230, 1232 (Ind. 1978)(citing Bowles v. State, 267 N.E.2d 56 (Ind. 1971))

• Professional informants and anonymous tipsters; Generally, reliability of this category must be established by reference to underlying facts and circumstances which indicate that the information is trustworthy. Corroboration is necessitated because information of this type may be unreliable or self-serving, especially when given in return for favors such as money or leniency in possible criminal prosecution.

Pawloski v. State, 380 N.E.2d 1230, 1232 (Ind. 1978)

• [T]he trustworthiness of hearsay for purposes of proving probable cause can be established in a number of ways, including where (1) the informant has given correct information in the past; (2) independent police investigation corroborates the informant's statements; (3) some basis for the informant's knowledge is shown; or (4) the informant predicts conduct or activities by the suspect that are not ordinarily easily predicted. Depending on the facts, other considerations may come into play in establishing the reliability of the informant or the hearsay.

Jaggers v. State, 687 N.E.2d 180, 182 (Ind. 1997) [Indiana courts apply the Gates standard, from Illinois v. Gates, which is discussed below.]

• [The landmark federal case on the use of confidential or anonymous informants is Illinois v. Gates.]

[First, the Supreme Court abandons the older two-prong test] In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable cause determinations. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... conclud[ing]” that probable cause existed.

Illinois v. Gates, 462 U.S. 213, 238-39 (1983), reh’g denied

• [A]n informant's veracity, reliability, and basis of knowledge remain highly relevant in determining the value of his report.

Alabama v. White, 496 U.S. 325, 328 (1990) (interpreting Illinois v. Gates, internal quotations omitted)

[Note: A finding of probable cause must satisfy the requirements of the Fourth Amendment, the Indiana Constitution, and IC 35-33-5-2.]

• [Under IC 35-33-5-2], the reliability of hearsay information from an informer may be established (1) by a consideration of the totality of the circumstances or (2) by the traditional methods of establishing the credibility of the informer and the factual basis of the informer's knowledge. The traditional methods are not stated in the statute but include the following:

(a) The informer's credibility may be established by reference to a prior record or history of reliability;

(b) The information may be confirmed by reference to extrinsic facts, that is, by personally verifying that certain facts exist as stated in the informer's information.

(c) The information may be corroborated by reference to extrinsic facts, that is, the truth of the information may be strengthened or supported by a consideration of statements or information received from other persons or otherwise known to the officer;

(d) The informer's credibility may be established by the fact that the statement is a declaration against interest or implicates the informer in criminal activity; and

(e) The statement may contain such a detailed account of factual information that it may be considered to be reliable as a “self-verifying” statement.

Finding of reasonable suspicion vs. Finding of probable cause

• [An investigatory Terry stop can be upheld when it was based on an anonymous informant’s tip, even when there insufficient indicia of reliability to establish probable cause for an arrest.]

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

Adams v. Williams, 407 U.S. 143, 145-46 (1972)

See Navarette v. California, 134 S. Ct. 1683 (2014)

See also Kaupp v. Texas, 538 U.S. 626 (2003)

See also Lampkins v. State, 682 N.E.2d 1268 (Ind.1997), on reh’g, 685 N.E.2d 698 (Ind. 1997)

• Although an anonymous tip alone generally is not likely to constitute the reasonable suspicion necessary for a valid Terry stop, where significant aspects of the tip are corroborated by the police, or where tip is from known, reliable informant, a Terry stop is likely valid.

See Lampkins v. State, 682 N.E.2d 1268 (Ind.1997), on reh’g, 685 N.E.2d 698 (Ind. 1997)

More information

• An exception to the rule that a defendant is entitled to discovery as to the State's witnesses is the identity of an informant. For obvious reasons, the informant and the State are afforded the protection of nondisclosure unless appellant can clearly demonstrate that the identity of the informer or the content of his communication is relevant and helpful to his defense or is essential to the fair determination of the cause.

Fundukian v. State, 523 N.E.2d 417, 419 (Ind.1988)(quoting Randall v. State, 455 N.E. 2d 916 (Ind. 1983))

• The general policy is to prevent disclosure of an informant’s identity unless the defendant can demonstrate that disclosure is relevant and helpful to his defense or is necessary for a fair trial.

Schlomer v. State, 580 N.E.2d 950, 954 (Ind. 1991)

• The privilege will not yield to permit “a mere fishing expedition” or be overcome by “bare speculation that the information may possibly prove useful.”

State v. Cook, 582 N.E.2d 444, 446 (Ind. Ct. App. 1991)(quoting Dole v. Local 1942, et. al., 870 F.2d 368 (7th Cir. 1989))