Chapter 8 Criminal Investigation

Undercover Operations

The stereotypical portrayal of the undercover agent has been nothing short of glamorous: Just like in the movies, drinking expensive wine, cruising in your red Ferrari, and relaxing in the hot tub with hand-rolled Cuban cigars and some of the hottest women in town. And then there’s the long hair, the fashionable beard, the expensive leather jackets, and the simple fact that it is your job to spend the evening in some of the city’s hottest nightclubs socializing with high-roller drug dealers. And lest we forget all of the high-tech gadgets at your disposal: hidden microphones (wires) and pinhole video lenses for documenting criminal meetings; parabolic microphones for eavesdropping on distant conversations; special police radios hidden up underneath the undercover car’s dashboard, and wiretaps for listening to criminals conspiring to deliver the next drug shipment. The list goes on. This is an image that many people have of undercover agents—at least the image of persons who are not really familiar with undercover work. This popular image of the undercover agent is often the motivation for many young officers to enter police work and target covert investigations is their chosen field of endeavor.

But over the last 25 years or so, undercover work has changed dramatically. The days of a lone undercover agent working deep cover operations for months on end with a pocket full of money are for the most part gone. This is, in part, because undercover work is dangerous and operations are expensive to run.

Stories abound regarding both investigative successes and failures in this area. From a practical standpoint, undercover work and informant use are viable options for police investigators because they provide considerable information that is not otherwise available through traditional investigative methods. For example, in February 2009, the U.S. Drug Enforcement Administration arrested 52 persons in California, Minnesota, and Maryland as part of Operation Xcellerator. This investigation targeted the Sinaloa Cartel, a major Mexican drug trafficking organization.

In recent years, the Sinaloa Cartel has been responsible for bringing quantities of narcotics, including cocaine and marijuana, from Mexico into the United States through distribution cells in the United States and Canada. They are also believed to be responsible for laundering millions of dollars in drug money. Suspects in this investigation were charged with engaging in a continuing criminal enterprise by violating various felony provisions of the Controlled Substances Act, conspiracy to import controlled substances, money laundering, and possession of unregistered firearms.1

But undercover work can also be a high-liability proposition for the police administrator. This is because undercover agents sometimes “cross the line” while working undercover and compromise their own integrity for the purpose of making the arrest. Many stories abound about undercover officers falsifying search warrants, stealing drug money and weapons, and planting drugs on innocent suspects for the sole purpose of arresting and prosecuting them for their own advancement. This has occurred in cities across the nation for years including Los Angeles, Tulsa, New Orleans, Miami, and New York City to list only a few. Such occurrences have caused the dismissal of numerous criminal cases, lawsuits against police departments, and undercover officers themselves being convicted and sent to prison. Even honest undercover agents who have been in the field for a while sometimes find it extremely difficult to move back into uniform and assume the traditional role of a patrol officer. But even while working as an undercover, officers must accept the fact that they will be somewhat isolated from friends and family and will be required to work in an unusual work schedule that will prevent them from discussing day-to-day activities with persons outside their unit and to sacrifice being present at many birthdays, holidays, and other special family events.2

Perspectives of Undercover Work

When someone is hired as a police officer to work in uniformed patrol duties, he or she has many benefits that the undercover agent does not have. For example, the uniformed officer has backup. That is, numerous officers working in the same shift in the same city are available to show up as backup when needed. Uniformed officers also have their uniforms and their duty belt, as well as numerous intermediate weapons to assist them on a moment’s notice should they find themselves in an aggressive encounter with a suspect. But the criminal knows who the patrol officer is because the officer can be identified with the police car and the uniform. The uniformed patrol officer also has a direct field supervisor to assist him or her in a situation where advice is necessary to control a situation safely and lawfully. Conversely, the undercover agent has none of these things. He or she wears plain clothes, acts and talks like the criminals, and works with minimal direct supervision and without the availability of backup in many cases.

George I. Miller, a Yale University professor, defines the role change from uniform patrol officers to undercover officers. In his article “Observations on Police Undercover Work,” he states, “Instances when a sworn officer, for organizationally approved investigative purposes, adopts an encompassing but fictitious civic identity and maintains it as a total identity over a defined and considerable period of time.”3

Undercover work is a paradox; it is the process succeeding by doing bad (e.g., telling lies, using deceit and trickery). These types of investigations have traditionally been divided into long-term, deep-cover, short-term assignments. As the degree of infiltration increases, so does the danger.4

Langworthy observes that some undercover operations result in additional criminal activities.5 As a result of his analysis of a Birmingham undercover antifencing operation, he concluded that the operation caused a substantial amount of crime by creating a market for stolen goods. If the police operation had not existed, no market would have existed, and criminals would have stolen less.

Any undercover operation is subject to claims of entrapment. Officers are permitted to do things that provide the opportunity for a suspect to commit a crime, but they may not induce someone to commit a crime. Because undercover operations generally may be initiated without prior judicial authorization, the results are subject to strict scrutiny by the courts. Allowing police to make the decision to initiate an undercover operation based on mere suspicion has been the subject of much criticism.6 Recognizing the magnitude of the problem, the FBI now requires that large-scale undercover operations first be reviewed by their Criminal Undercover Operations Review Committee.

Undercover assignments are either performed in the short term or long term (or “deep cover”). Short-term undercover operations are normally considerably safer for the officer than those that are deep cover. Short-term operations permit the help of surveillance officers and protection that undercover agents working in a deep-cover capacity do not have. However, the benefits of working a deep-cover undercover operation allow an undercover agent time to gain total trust of the criminal suspect to the point of openly discussing criminal operations. This is a great advantage to an undercover agent because as a rule, criminals are very suspicious about meeting new “clients” who could be (and sometimes are) police informers or undercover officers.

While no two cases are exactly the same, Motto and June point out that there are certain elements common to each undercover operation: the introduction, the acceptance, the buy, the arrest, covering the informant, and the “after action.”7

The informant typically makes the “introduction” of the undercover operative to the suspect. This is the initiation of the case. From this point on, the “acceptance” phase takes over when the undercover agent is either accepted or not. In the event the suspect does not accept the officer, it might be necessary for the informant to meet the suspect at a later time without the undercover officer to determine why the suspect was suspicious. In the event the officer is not accepted, the informant can bring in a second officer with a different cover story. This time, both the officer and informant will try to overcome the difficulties experienced during the first contact.

After the introduction, there is a short period of “bobbing, weaving, and circling”: the suspect gets to know or feel if he or she can trust the undercover officer. If a feeling of trust is established, the conversation will quickly turn to the criminal activities in which the suspect is involved.

In the case of an undercover drug operation, for example, this conversation generally results in the undercover agent asking for or obtaining samples, and the suspect will quote the purchase price. After the samples have been delivered and the undercover agent has had an opportunity to examine them, the purchase price is discussed.

This purchase, or the “buy,” may or may not go through. In other words, a decision must be made whether or not to arrest a suspect when he or she delivers the contraband (also known as a buy-bust) or to take that action after subsequent deliveries (known as a buy-walk). If it is determined that the investigation should continue, no arrests should be made and nothing should be done to arouse the suspect’s suspicion or to identify accidentally the true role of the undercover operative. This is known as covering the informant (Figure 8.2).

Figure 8.2

Undercover investigator in a vehicle meeting with an informant who was a gang member. Investigators must often meet their informants secretly to receive important investigative leads.

(Monkey Business Images/Shutterstock)

In drug investigations, the first buy is usually a small one whereby the agency doesn’t mind losing its seed money so that the undercover officer can make a bigger purchase at a later time. Subsequent purchases of contraband are known as the “after action.” As a rule, the second purchase or, if necessary, several subsequent purchases should be large enough to warrant the appearance of not only a suspect but also some of the people connected with him or her. These individuals could be present in several capacities, including countersurveillance, protection, main participants, or equal partners, and perhaps even higher-ups. Sometimes it is necessary because of the development of circumstances surrounding the case to arrest a suspect when an initial delivery is made.

Recruitment

Not all officers are suited for undercover assignments, and this is by no means a reflection on their abilities. Many are just not comfortable assuming a role that is a contradiction to their mind-set of justice, their ideals, and sense of morality. Undercover officers are a special breed of men and women who share certain similar characteristics. They are highly motivated, willing to make professional and personal sacrifices, resourceful, creative, skilled in the art of negotiating (undercover officers seem to make excellent hostage negotiators), and adept at making decisions in stressful situations.8 In fact, in making a selection, do not rule out young, inexperienced officers. Rookie police officers may not have developed certain mannerisms and habits consistent with veteran officers; they simply don’t act like “cops.” (Many street-wise drug dealers brag about their ability to “smell a cop”.9) This can be an advantage.

Danger in Undercover Operations

Undercover work is enormously dangerous. This is because generally there are few operational guidelines, no standards for personnel selection, and the looseness of supervision increases concerns about officer safety. In his article “Undercover Violence,” Gary Wade claims that undercover work is more dangerous today and gives a number of reasons why this is true. For example, during the course of an arrest, there is an incentive for suspects to flee because of mandatory prison terms, suspect paranoia from drug use, large amounts of money involved in drug transactions, and violence commonly associated with drug trafficking.10 This obviously creates a sense of desperation that can result in increased violence directed at the undercover officer.

The undercover agent must often rely on himself or herself for survival, drawing on their training, wit, and common sense. In fact, defense tactics learned in the police academy may not work in an undercover environment. For example, if the undercover officer finds himself or herself in a fight, tactics change when the badge comes off. This is because undercover officers usually don’t start the fight and they usually don’t have the luxury of a vest, duty belt, readily accessible gun, baton, OC spray, Taser, or radio.

In the heat of the moment, undercover officers probably won’t be able to access their gun in time because it is concealed and difficult to reach on short notice. Instead, undercover agents are taught to use “weapons of opportunity,” which may mean an ashtray, a cell phone, or anything they can get their hands on at the spur of the moment. Undercover officers are taught that even though they will not start a fight they need to be sure they finish it. They know that in a fight there’s no holding off and defending until the rest of the team arrives. They might not show up.11

Arrests by undercover officers are sometimes necessary but as a rule should be avoided. This is because the suspect may not realize that he/she is being arrested, but rather may think that they are being “ripped off” by another drug dealer and put up a fight. Instead, dedicated arrest teams best accomplish arrests in an undercover operation. Because they are not clearly identified as police, the undercover officer should take a passive, compliant role.12 It may even require that the undercover officer be arrested along with the other defendants to protect his identity and/or that of the informant.

Stress in Undercover Work

Undercover work is one of the most stressful jobs that a police officer can undertake.13 The largest cause of stress for investigators working undercover is the requirement that they distance themselves from friends, family, and their normal environment. This simple isolation can result in the onset of depression and anxiety. There are no data on the divorce rates of undercover agents, but considerable tension in relationships has been known to develop. This can result from a need for secrecy and an inability to share work problems, the unpredictable work schedule, personality and lifestyle changes, and the length of separation. These factors can all result in problems for relationships.14

Stress from Uncertainty

Stress can also result from an apparent lack of direction of the investigation or not knowing when it will end. The amount of elaborate planning, risk, and expenditure can also place pressure on an agent to succeed, which can cause considerable stress.15 The stress that an undercover agent faces is considerably different from that faced by investigators who are not assigned to undercover assignments and whose main source of stress results from pressures by the administration and the general bureaucracy of police work.16 Because the undercover agent is removed from the bureaucracy, it may result in another problem. Because they do not have the usual controls of a uniform, badge, constant supervision, a fixed place of work, or (often) a set assignment, combined with their continual contact with the criminal underworld (members of the opposite sex, pressure and manipulation from criminal suspects, alcohol, availability of illicit drugs, and opportunities to earn or seize large amounts of illicit money), there is an increase in the likelihood for corruption.17

Development of Alcohol or Drug Abuse

Research shows that undercover agents are more prone to the development of an addiction of drugs and alcohol because they undergo greater stress than other police officers.18 This is because they are isolated, and drugs are often very accessible. In general, police have very high rate of alcohol consumption compared to most other occupational groups. Stress is cited as a likely factor. The environment that agents work in often involves a liberal exposure to the consumption of alcohol, which in combination with the stress and isolation can result in alcoholism.19

This is supported by research conducted by Gary Marx, who also states that undercover agents are more prone to the development of an addiction because they experience greater stress than other police, they are isolated, and drugs are often very accessible.20 Police, in general, have very high alcoholism rates compared with people in most occupational groups, and stress is cited as a likely factor.21 The environment that agents work in, including taverns, bars, and private residences of criminal suspects, often involves considerable exposure to the consumption of alcohol, which in conjunction with the stress and isolation may result in alcoholism.22

Feelings of Personal Guilt

There can also be some guilt associated with working undercover because of the need to essentially betray the trust of those (criminal suspects) who have come to trust you. According to Marx, this can cause anxiety or even, in very rare cases, sympathy with those being targeted.23 This is especially true with the infiltration of political groups because often the agent shares similar characteristics, such as class, age, ethnicity, or religion, with those they are infiltrating. This could even result in the conversion of some agents.24

Problems of Reintegration

The lifestyle led by undercover agents is very different than that for other areas in law enforcement, and it can be quite difficult to reintegrate back into normal duties. Agents work their own hours, they are removed from direct supervisory monitoring, and they can ignore the dress and etiquette rules.25 So the resettling back into the normal police role requires the shredding of old habits, language, and dress. After working such free lifestyles, agents may have discipline problems or exhibit neurotic responses. They may feel uncomfortable and take a cynical, suspicious, or even paranoid worldview and feel continually on guard.26

Training Issues

Another big difference between uniformed patrol work and undercover work is that police academies train officers to be patrol officers—not undercover operatives. Police patrol training is the “bread-and-butter” basic training required for state certification in all 50 states. Training necessary for undercover work is not provided in the state-mandated basic police academies. Sarah Schreiber speaks to this issue in her article Reflections of an Undercover Officer. She states that most undercover training is “Here’s $40. Go to the hood and buy some dope. That’s it.”27 For most undercover officers, this is extremely stressful and dangerous.

Pitfalls of Undercover Work

Charlie Fuller, Executive Director of the International Association of Undercover Officers, states that there are a lot of things he wishes he would’ve known before entering his career in undercover work. For example, he realized to the years how profoundly undercover work can change you.28 There are few books and few studies on the subject.

When an officer goes out into the field without a uniform and without backup, it is difficult to feel like a law enforcement officer sometimes. This is made worse by the fact that lying and pretending are prerequisites of the job. Fuller states that when the lies pile up, it becomes easier to believe him. It can even be easier to master the art of manipulation. Is this a good thing?29 After all, isn’t this what criminals do? Isn’t this, in part, what gets them into trouble with the law?

During the course of his career, Fuller’s “double life” devastated his marriage and had him questioning his own identity. Fuller states that the most dangerous part of being out of uniform will always be mental. Shootouts happen, but more officers are suspended, fired, jailed, or killed because of psychological issues rather than for physical reasons.30 According to Fuller, the problem is that undercover officers have a “police officer” subconscious, not to be confused with an “undercover” subconscious. He explains that most departments don’t adequately transition officers or brace them for this cerebral shift. He states that on patrol, in uniform, an officer still has visible authority. But in a startling way, when the clothes are shucked, so is that authority as seen by everyone else. It’s kind of like saying, “the clothes make the man.”31 In fact, one of the first things an undercover officer is told by supervisors is to stop acting like a cop. What this does, essentially, is it reinforces nonpolice behavior. But then, when the officer comes back into the office to prepare his paperwork, his supervisors tell him to stop acting like a criminal and behave like a cop.

Preparing for Undercover Assignments

A number of misconceptions exist regarding undercover agents. This is because undercover work is so highly specialized and secretive that even most plainclothes detectives and uniformed officers have little understanding of undercover operations. One fallacy of undercover work is that undercover agents break the law and/or use illicit drugs to protect their cover. The challenge of the professional undercover officer is to act like a criminal without violating the law. Another fallacy is that an undercover agent must be a good actor. This is untrue because being undercover is not acting. Rather, it is acting normally based on how the agent’s personality is best suited. Yet, another misconception is that the undercover agent must be a big spender. This is also not necessarily the case because experience has shown that many criminals are tight with their money even though they acquire it illegally.32

Jerry Vancook, in his book, Going Undercover, suggests that in preparing an undercover role, writing out a detailed, fictional biography will help the agent commit it to memory. He also believes that you need to be careful about straying too far from the truth. This biography needs to address all aspects of the person’s life.33 Do not limit it to the criminal persona you want to project. A veteran undercover narcotics investigator related how, over the years, he developed an undercover role that cast him as a jeweler. He became so adept at it that he sold jewelry on a part-time basis to his coworkers.

Vancook also developed exercises to practice an undercover role in nonthreatening situations. In one exercise, the officer inquires about an apartment for rent using the undercover role and answering questions based on the fictitious biography.34 He suggests that officers take the role to the next level and actually meet with the rental agent and inspect the property, all the time staying in role. He said you can also practice an undercover role by answering an advertisement in the “Help Wanted” section of a local newspaper.

Vancook stressed the value of taking acting lessons. This serves two purposes: one, the undercover learns acting skills that will help him hone his cover story, and second, the officer learns techniques for altering his physical appearance.35

A Closer Look

Becoming a DEA Special Agent

DEA Special Agents are a select group of men and women from diverse backgrounds whose experience and commitment make them the premier federal drug law enforcement agents in the world. Applicants must be at least 21 years of age and no older than 36 at the time of their appointment.

Education

The most competitive candidates possess a bachelor’s or master’s degree, along with a grade point average (GPA) of 2.95 or higher. Special consideration is given to candidates with degrees in criminal justice/police science or related disciplines; finance, accounting, or economics; foreign languages (with fluency verified) in Spanish, Russian, Hebrew, Arabic, dialects of Nigerian languages, Chinese, Japanese; computer science/information systems; and telecommunications, electrical engineering, and mechanical engineering.

Depending on scheduling and candidate availability, the DEA’s hiring process may take 12 months or longer. Hiring involves a multistep process that includes the following phases:

Qualifications review

Written and oral assessment and panel interview

Urinalysis drug test

Medical examination

Physical task test

Polygraph examination

Psychological assessment

Background investigation

Final hiring decision

Training

All applicants must successfully complete all phases of the hiring process and remain most competitive to receive a final offer of employment. For more information, contact your nearest DEA field division recruitment office. Scheduling times and locations are handled by the local recruitment coordinators. Special Agent candidates are required to successfully complete a 16-week Basic Agent Training (BAT) program at the DEA Training Academy in Quantico, Virginia.

Through this program, instruction and hands-on training are provided in undercover, surveillance, and arrest techniques; defensive tactics and firearms training; and the basics of report writing, law, and drug identification and recognition. In addition, applicants participate in a rigorous physical fitness program.

Duty Station

Between the 8th and 12th weeks of the training, applicants are provided with final duty station assignments. Mobility is a condition of employment. Assignments are made based upon DEA’s current operational needs.

Mobility

Mobility is a condition of employment. Special Agents are subject to transfer throughout their career based on the needs of the agency.

Salary

DEA Special Agents are generally hired at the GS-7 or GS-9 level, depending on education and experience. The salary includes federal Law Enforcement Officer base pay plus a locality payment, depending on the duty station. Upon successful graduation from the DEA Training Academy, 25 percent availability pay will be added to the base and locality pay. After graduation, the starting salaries are approximately $49,746 for a GS-7 and $55,483 for a GS-9. After four years of service, Special Agents are eligible to progress to the GS-13 level and can earn approximately $92,592 or more per year.

Drug Use Policy

The DEA is charged with enforcement of the Federal Controlled Substances Act; therefore, all applicants must fully disclose any drug use history during the application process. Applicants whose drug use history is outside of acceptable parameters will not be considered for employment. All DEA employees are subject to random urinalysis drug testing throughout their careers.

The Physical Task (PT) Test

The PT test determines if potential candidates can withstand the rigors of Special Agent training. Candidates must be in excellent physical condition to pass this test.

If a candidate fails the first PT test, administered in the field, a second test must be successfully taken within 30 days. A second failure will cause the candidate’s application process to be discontinued. Candidates are encouraged to get proper training to ensure that they are prepared to successfully complete this test.

Background Investigation

A background investigation (BI) is one of the final steps in the application process that seeks to discern a comprehensive snapshot of applicants. The investigation provides information on applicants’ personal history, education and work experience, personal and professional references, as well as other necessary checks. The time it takes to complete the BI is dependent on the type and scope of investigation being conducted.

Thematic Question

Considering drug enforcement agents often work in a proactive undercover capacity, to what extent do you think that doing so unfairly targets persons for investigation who have not yet committed a crime? Explain your response.

Cyber-Undercover: Investigating Online Predators

The virtual world has been increasingly impacting all aspects of interpersonal relationships. Computers are highly relevant in nearly all aspects of life and are often used to enable personal relationships. For example, there are many people who use the Internet to join online social networks and even to establish romantic and/or sexual relationships. This is particularly the case with today’s adolescents who use sites such as Facebook© and Twitter®, along with the wide variety of network communities for socializing with potentially thousands of other people throughout the world. An estimated 14 million youth, ages 12–17, were using social networking sites (SNSs) in 2006.36

The Internet enables people to have social contact with others with considerable anonymity, which can have both positive and negative consequences. The Internet also provides people with the ability to explore possible problems—whether they are physical, mental, sexual, or social. Such persons can gain the support of others without leaving the privacy of their own home. Conversely, it can offer persons the chance to explore interests that may or may not be lawful or otherwise “approved” by society.37 Therefore, while the virtual social world brings many individuals satisfaction, there can be social encounters that are problematic. This is especially so concerning teens, because even though many teenagers are well versed in the use of technology, they may still be naive when it comes to social relationships and virtual communities.38 As such, there may be many children who can be easily fooled by devious adults. These children can readily be entangled in a world where they become victims of older predators posing as the adolescent’s peers.39

Researchers Walsh and Wolak discovered a link between sexual offending in the “real” world and solicitation for sex in the virtual world. They concluded, “more than a quarter of the online sexual predators had prior arrests for nonsexual offenses, and 9 percent had prior arrests for sexual offenses against minors.” Three percent of sexual assault defendants were registered sex offenders at the time of their crimes and the majority of the defendants had met their victims on the Internet.40 These Internet-initiated crimes followed a common pattern in which offenders met victims in chat rooms and developed relationships, which were often romantic or sexual, lasted a period of a month or longer, and involved communicating via chat rooms, emails, and instant messages.41

Grooming is a method that is used by online sexual predators to lure the children they meet. The grooming process has been described as a way of blurring the lines between appropriate and inappropriate behaviors.42 This process gradually shifts material or contact that a child or adolescent considers inappropriate to something they accept.43 The predator attempts to gain the affection, interest, and trust of the victim and is sometimes considered to be a friend or even a mentor to the young person. In some cases, some children and adolescents find this attention appealing because they have a strong desire to form relationships; to belong; and to gain attention, validation, and acceptance.44 This is often because they are troubled in the “real” world. Researchers have determined that the process of normalizing sexual and inappropriate behaviors means that the victim is less likely to tell anyone, because they see the behavior as normal, and therefore the predator does not have to resort to threats to keep them quiet.45 This entire process occurs online, taking advantage of its anonymity.

In order to catch these online predators, criminal investigators must use similar strategies as those adopted by the predators themselves. This means going undercover and using the Internet as their investigative locality. Undercover work involves a method where an investigator looks for criminal activity by indulging himself or herself into the lives of people intent on engaging in illegal behavior.46 The investigator pretends to be someone else by falsifying his or her true identity and developing trust and acceptance by the targeted individual almost as if they were grooming the predator.47

Undercover cyber-investigations are proactive and typically began in chat rooms or through instant messaging. These relationships develop rather quickly. When compared with cases involving juvenile victims, investigators use appropriate age identities, as well as both male and female identities.48 Research and experience show that proactive investigations conducted through chat rooms tend to be almost exclusively sexually oriented. This raises the possibility that the more successful offenders (i.e., those who do not get caught) operate outside of sex-oriented chat rooms. Consequently, it is possible that police are catching the more naive offender who has not developed the grooming techniques necessary for pursuing a relationship with a teenager in sex-oriented chat rooms.49 Another way investigators have attempted to combat the virtual world of online child solicitation is by using social networking sites. Typically, investigators created Web pages or profiles that were used by offenders to get information about the impersonated minors’ likes and interests, and whereabouts at a specific time, and look at pictures of the impersonated minor.50

A recent study from the American Psychological Association (APA) found some interesting results regarding the statistics of Internet predators and today’s youth. They found that the majority of Internet predators do not pose as children as the prior conception of the Internet predator stereotype was perceived. The Internet predators openly tell their age and their intentions and your kids openly talk to them about their own sexual desires.51

In the past, the thought was that the Internet predators were duping teenagers into thinking they were talking to a kid their own age. The statistics of this study shows that teenagers are knowingly chatting to adults. It is a brave new world: a world where our children still need to be protected from their curiosity. Of course, the children do not tell their parents whom they are chatting with. So, how are parents supposed to know who their kids are chatting with on the Internet? With the advent of Facebook and the other thousands of social networking and chat sites on the Internet, danger is only a click away. The Internet predators are out there, and your kids are willingly chatting with them. It seems that there is another dangerous trend that teenagers are participating in called Sexting. That is when a teen sends nude or seminude pictures of himself or herself to other people with their cell phone.

Indeed, the online criminal investigator has his or her hands full with the abundance of old and new technology. The challenge for the investigator is to learn the various social mediums, understand how to develop an undercover persona, and know that teen predators are smart and will attempt to outwit both their victims and the police at the same time.

Informant Management

The police informant has been said to be both a blessing and a curse in criminal investigation. While they can be of tremendous assistance to scrupulous investigators, the ability to abuse them and improperly target innocent citizens by unscrupulous or uninformed investigators is always a concern. Consider the case of Larry Peterson. Peterson was (wrongly) convicted in 1989 of murder and sexual assault and sentenced to life in prison. Four people—three of Peterson’s coworkers and a jailhouse informant—helped the state convict Peterson with falsified testimony. During an investigation of the crime, police interviewed some of Peterson’s coworkers several times. After lengthy interrogations, threats of prosecution, and other questionable police tactics, the three men said Peterson had confessed to them during a ride to work. Records have since shown that Peterson did not work on the day these men said the confession occurred. A jailhouse informant with charges pending in three counties also testified that Peterson had admitted guilt to him while in the county jail. DNA finally proved Peterson’s innocence in 2005 and he was exonerated in 2006.52

Statistics from the APA Study

Internet offenders pretended to be teenagers in only 5 percent of the crimes studied by researchers.

Nearly 75 percent of victims who met offenders face to face did so more than once.

Online sex offenders are seldom violent, and cases involving stalking or abduction are very rare.

Youth who engaged in four or more risky online behaviors were much more likely to report receiving online sexual solicitations. The online risky behaviors included maintaining buddy lists that included strangers, discussing sex online with people they did not know in person and being rude or nasty online.

Boys who are gay or are questioning their sexuality may be more susceptible to Internet-initiated sex crimes than other populations. Researchers found that boys were the victims in nearly one-quarter of criminal cases, and most cases included facts that suggested victims were gay or questioning their sexuality.

Source: On-line Safety Site (2015) used with Permission.

The concept of confidential informants (also called “CIs”) in society is nothing new. In fact, both police and civilians attempt from time to time to encourage public participation in solving crimes. One well-known program is Crimestoppers, which encourages citizens to engage in “anonymous” informing to assist police in developing suspects in crimes or to catch criminals in the act of committing them. Although some people complain that Crimestoppers makes “snitches” out of law-abiding citizens, others argue that it is simply a system of public responsibility similar to the old days of the “hue and cry,” when all citizens assumed responsibility for public order.

In addition to allowing tipsters to call the police anonymously, many informants receive cash rewards for their cooperation. The amount of the reward depends on the “quality of information” provided by the citizen—that is, information that results in an arrest. All communication between the police and the citizen is accomplished by the assignment of a number to the caller. That number is used in lieu of a name for the remainder of the citizen–police relationship, negating the need for the police ever to know the true name of the tipster.

Along lines similar to Crimestoppers are efforts by victims of crimes to convince the community to become more involved with identifying known criminals and reporting violators to police. One example of this is the well-known television show America’s Most Wanted. The show has helped track down more than 800 fugitives.53 Other shows, including Unsolved Mysteries and U.S. Customs, have had similar success.

Another public forum for locating criminals, which has been around longer than the television shows discussed earlier, is the FBI’s Top Ten Most Wanted list. The FBI has maintained its Most Wanted list since 1950, and although it was once a mainstay in crime fighting, it has all but lost its appeal in today’s high-tech age of television, computers, and the Internet. Still, it is designed to encourage citizen participation in sharing information with the police about crime and criminals who are wanted. The Most Wanted list was invented by a wire service reporter and later adopted by the publicity-driven director of the FBI, J. Edgar Hoover. As of 1997, 422 of the 449 fugitives who appeared on the list have been captured, a 94 percent success rate.54

In its earliest stages, when few Americans owned television sets, the Most Wanted list contained bank robbers, burglars, and car thieves, criminals who dominated the crime scene. Today’s Most Wanted list includes cop killers, drug dealers, and international terrorists who aren’t even in the country.55 Skeptics argue that the list has outlived its usefulness because of the age of modern technology (the Internet, electronic billboards, and television). In 1992, the U.S. Post Office discontinued putting Top 10 posters on its walls. Perhaps it could be argued that the FBI’s “list” has become ineffective, especially with the advent of so many different high-tech media showcasing the nation’s fugitives. Of late, some victims have taken the initiative to seek help from the public by using their own money and resources.

During August 1997, the parents of murder victim JonBenet Ramsey ran their fourth advertisement in a local newspaper appealing for help from the public. The ad included samples of handwriting from the ransom note and commented that “the killer appears to be obsessed with technocrime movies and phrases from them.”56 In addition, the ad included quotes from the movies Dirty Harry and Speed that the family claimed were similar to the ones used in the ransom note.

In any case, whether it is a paid police informant or an anonymous tip, police rely heavily on information from the public to solve crimes. Experience has shown that a primary component of crime control is proactive law enforcement. Proactive investigations include vice cases such as drug trafficking, prostitution, and gambling, in which investigators actually seek out potential crimes and intervene “before” the crimes occur. Accordingly, the use of informants as a source of criminal information in such crimes has proved to be invaluable. Consequently, law enforcement officers are insistent in protecting the identities of their sources so that the well-being of the informants will not be jeopardized and so they will continue to be of use to the officer in future criminal investigations. (Note: Informants are also commonly called informers, confidential informers, or cooperating individuals, but in this book, they are referred to as informants.)

One of the most exceptional examples of informant use was the 1963 testimony of Joseph Valachi, a former Mafia soldier. Valachi’s highly publicized role as an informant with the FBI resulted in the convictions of several management figures in the American Mafia. This case raised questions and public concern about the appropriateness of law enforcement officers using “criminals to catch criminals.” Another high-visibility case involved Tommaso Buscetta, a crime family boss in Palermo, Sicily, who testified against numerous other Mafia bosses during the mid-1980s. His testimony was instrumental in the arrest and subsequent prosecutions of an estimated 450 fellow Mafiosos. Nevertheless, many misconceptions still exist about the value and utility of the criminal informant. For example, some think that police officers who are using an informant will be tolerant of that person’s criminal lifestyle and might be less willing to report criminal wrongdoing on the part of the informant. Although through the years some improprieties have been documented regarding the use of informants, the value of such persons has proved immense in the prosecution of many high-level crime figures and in aiding law enforcement in understanding the inner workings of sophisticated criminal organizations.

In addition, some people believe that in dealing closely with informants, police officers may themselves become tainted and their positions compromised. In this chapter, we consider the role of informants in criminal investigations and how best to manage the information provided by them.

Who Are Informants?

Although the word informant has many negative synonyms, such as “snitch” and “stoolie,” the term could best be defined as “anyone who provides information of an investigative nature to law enforcement.”57 More specifically, Black’s Law Dictionary defines “informer” as “A person who informs or prefers an accusation against another whom he suspects of the violation of some penal statute.”58 Exclusions to this definition, of course, are victims of crime who have reported specific criminal activity to law enforcement. This makes their role more that of a complainant.

The FBI, on the other hand, refers to its sources of information as either informants or cooperative witnesses. The distinction between these two categories depends on the information they provide. For example, according to the FBI’s Manual of Investigative Operations and Guidelines (MIOG), an informant is any person who provides information on a confidential basis. A cooperating witness, on the other hand, is a person whose relationship with the government is concealed until testimony at trial is required and who contributes substantial operational assistance to the resolution of a case through active participation in an investigation.59

Indeed, the informant is most typically used in cases in which there is no complainant. These typically include vice and victimless crimes such as drug violations, gambling, and prostitution. Because informants can be virtually anyone in a community, a good investigator should consider anybody with whom he or she comes in contact as a potential source of criminal information. That is, the premise of locating a knowledgeable informant is to realize that someone somewhere is aware of various crimes committed. It is therefore the investigator’s responsibility to locate and develop relationships with such people.

Generally, people who become informants can be classified into four general groups:

AVERAGE CITIZENS. Although not necessarily a criminal source, people falling into this group may still be an excellent source of information. Most good investigators have several informants of this type who are contacted periodically for leads. Examples of these informants are waitresses, bartenders, dancers, and private investigators.

FELLOW LAW ENFORCEMENT OFFICERS. On an average day, investigators exchange valuable information with other investigators many times. Although much of this information is between “friends” who are investigators, a considerable amount is also exchanged by officers working in other units within the department. In addition, investigators who befriend officers with other local, state, or federal agencies can also benefit from useful information about criminals and criminal activity.

MENTALLY ILL PERSONS. It is unfortunate, but a percentage of informants fall into the category of mentally ill or deranged. An experienced investigator can detect when such persons are simply fabricating information or passing on news stories or gossip. One should also consider, however, that although an informant is mentally ill, his or her information might still have some validity.

CRIMINALS OR THEIR ASSOCIATES. Without question, criminal informants have proven to be most valued in many police investigations. These are people who are currently, or have been, associated with a particular criminal element and are therefore in an excellent position to supply first-hand information about criminal activity. Informants are a dynamic group of people who come from diverse backgrounds and frequently view their role in different ways. For example, one informant may give information with no reservations about his or her identity becoming known. Conversely, others may have valuable information to render but may do so only with the understanding that their identities remain concealed. Those falling into the latter category typically want their identities to be kept secret for their own protection and because if their true identities become known, their function as informants would be ended.

Using Informants

On August 8, 2008, Shelby County Sheriff’s Office narcotics investigator Eric Curtis identified an individual known as “informant A” as a potentially valuable informant. “Informant A” was on supervised release with the federal district court; therefore, Curtis appeared as a witness before the court and requested permission to allow “informant A” to work as a confidential informant.

At a later time, the district court sentenced “informant A” on his supervised release violation. During the sentencing hearing, Curtis again appeared in court and vouched for the value of information provided by “informant A” as a confidential informant. Curtis told the court that “informant A” had provided information that resulted in the arrest of numerous individuals and the recovery of a litany of narcotics.60

On November 19, 2009, the defendant met with agents from the FBI. During this meeting, Curtis repeated to agents that “informant A” had in fact worked as a confidential informant. Curtis then detailed the items recovered as a result of information provided by “informant A.” Curtis said that “informant A” was responsible for seven felony arrests, the seizure of 1,504 dose units of Oxycontin, 4,536 grams of marijuana, 5 kilograms of cocaine, and $35,296 in cash.61

Subsequently, agents from the FBI discovered that the number of arrests and items seized attributed to “informant A” by the defendant in federal court and to agents in the November 19 meeting were in fact a result of information provided by a number of different informants and not by “informant A.” Curtis had used his position as a Shelby County Sheriff’s Deputy to deceive and lie to a U.S. district court judge and law enforcement officers alike. As a result, Curtis was prosecuted and sentenced to 28 months in federal prison.62

In contrast to the opening case study involving tipster Conrad Malsom, this case illustrates how informants and the officers who control them can fall victim to a number of operational pitfalls. Many such problems can result in the wrongful targeting, investigation, arrest, and prosecution of innocent persons.

Although a frequent source of valuable information, the use of an informant in a criminal investigation can be problematic. Therefore, the use of an informant should not be considered if similar results could be achieved through other means. Problems that stem from the use of informants are due to three variables. First, informants are often difficult to control. Many of them have been criminals for long periods and are very independent by nature. This independence sometimes results in the informants attempting to manipulate the investigator and manage the investigation.

Second, an informant can become a source of public embarrassment for the law enforcement agency. For example, an informant might be arrested for a high-visibility crime during the time that he or she is working with the police. The local media could then make headlines that could jeopardize the investigation in which the informant was involved. Such situations are sometimes unavoidable but can usually be minimized with proper management techniques.

A third area of concern is the informant’s questionable credibility in court. Depending on the role of the informant in the investigation, he or she might have to testify in court proceedings. A good defense council can expose the criminal background of such people and show that their testimony is not to be believed. If this is accomplished, juries will have difficulty finding the defendant guilty “beyond a reasonable doubt.” After the decision has been made to use the services of an informant, he or she can be used in a number of ways:

Make observations in areas where strangers would be suspect

Furnish information from a source not readily available to the investigator

Conduct “controlled” undercover transactions or introduce undercover agents to criminal suspects

Collect intelligence information (e.g., determine street prices of drugs and identify suspects, their associates, and their residences)

The criminal investigator has the responsibility to evaluate every informant used. This saves time and effort if it is determined that the informant’s information is unreliable or that the informant harbors a hidden agenda. Thus, the motive is extremely important to identify with each informant candidate because it may directly affect the credibility of the case.

Informant Motivations

The utilization of informants is not without its problems. Because informants are typically criminals themselves, a number of practical, operational, ethical, and even moral problems may present themselves. This is why it is crucial for the criminal investigator to identify the motivations of the informant early on in the investigative process. Researcher Gary Marx, in his authoritative book Undercover: Police Surveillance in America, speaks to this concern. He states, “Working with informers can be an excruciatingly difficult and delicate task. They [informers] often have strong incentives to break the law. Because of charges they are seeking to avoid, a desire to punish competitors of enemies, or the promise of drugs or money, they may have little concern with equitable and principled law enforcement.”63

Successful recruitment and management of informants pivots on the investigator’s ability to recognize the motivation of the informant. Because the negative stigma of being an informant is so great in the United States, it is sometimes difficult to develop such people successfully. Police occasionally consider average citizens as informants provided that they are willing to offer relevant information in an investigation. The motivation of such people is a sense of civic duty (see Figure 8.3).

Figure 8.3

Sample informant agreement form.

(Pearson Education, Inc.)

Figure 8.3 Full Alternative Text

As one might guess, mentally ill informants (depending on their illness) are motivated by very different reasons. These reasons are usually very complicated and difficult to determine, and frequently, information furnished by these persons is worthless to the investigator. When a mentally ill informant gives valuable information, however, the person may be motivated by the same reasons as those that motivate criminal informants. Indeed, the criminal informant is the most valuable of all informant categories. As indicated, these people pose many legal, moral, and ethical considerations not generally associated with the other three categories. Motivations for a criminal informant fall into a number of categories:

THE FEARFUL INFORMANT. Many persons agree to cooperate with law enforcement when fear is the chief motivator. Fear comes in many forms, such as fear of detection and punishment by law enforcement or retribution from criminal associates. “Working off a charge” is a matter of survival for criminal informants.64 Typically, this incentive arises when a person is arrested for an offense and fears being convicted and imprisoned. Given the opportunity, the arrestee may choose to provide information to investigators in exchange for leniency. Investigators must be careful not to make any promises to persons arrested without the consent of the prosecutor, who is generally vested with such authority. The investigator may, however, advise the informant that such a recommendation may be made pending any cooperation.

THE FINANCIALLY MOTIVATED INFORMANT. Money is probably the easiest motivation to understand. “Mercenary” informants give information in exchange for a fee. In Christianity, Judas was the first recorded paid informant, receiving 30 pieces of silver for betraying Jesus. Often, the financially motivated informant will prove to be a valuable contributor to the investigation. Such persons may, however, attempt to manipulate the investigation to prolong payments to them. This is typically done by extending the investigation through providing misleading information or by “setting up” suspects in criminal violations that they are not predisposed to commit (i.e., entrapment).

THE REVENGEFUL INFORMANT. Revenge is not uncommon to the criminal underworld, and wrongs committed by one criminal against another are commonly settled outside the law. Frequently, however, informants motivated by revenge can produce favorable investigative results. Although those motivated by revenge are seldom concerned about revealing their identity in court, investigators must be careful to recognize an exaggerated or embellished story. In addition, such persons frequently have drifting allegiances and may reconcile with their former adversaries midway through the investigation, thus ruining credibility and jeopardizing the well-being of investigators.

THE EGOTISTICAL INFORMANT. Many people take great delight in passing on information to others. Informants falling into this category may also be of great value to an investigator. This motivation is sometimes dubbed the police complex because of a person’s desire to associate with law enforcement. It is typically characterized by a small-time criminal alleging to have inside information on high-level crime figures.

THE PERVERSELY MOTIVATED INFORMANT. People who display a perverse motivation are those who inform with a hidden benefit or advantage to themselves. Sometimes informants with this motivation are trying to eliminate their competition, learning investigative techniques, determining if any of their criminal associates are under investigation by police, or learning the identity of undercover officers. In all cases, the investigator must be aware of such motivations to avoid “setups” and compromising situations.

THE REFORMED INFORMANT. Informants characterized by this motivation act out of a sense of guilt from wrongdoing. Such informants are rare but when encountered may provide reliable information to the investigator.

Documenting Your “Source”

Proper management of informants is essential in avoiding unethical, immoral, or unprofessional allegations later in an investigation. The investigator must remember that informants belong to the agency and are not the “personal” resource of the investigator. This understanding will ensure that a system of checks and balances through records and verification of information can be officially maintained.

All candidates for informants should be well documented. They should, therefore, be fingerprinted, photographed, and carefully interviewed by investigators before being used as an informant. Interviews should reflect the informant’s true name and any aliases, address, employment history, and so on. In addition, criminal records, if any, should be verified through the National Crime Information Center as well as through local and state law enforcement agencies. All such procedures should be contained in an official informant file established specifically for that person. The file should then be indexed by number, not by name, and that number should be used in all subsequent reports referring to the informant.

During the informant interview, the interviewer must be careful to solicit certain information. Some typical questions asked to potential informants include:

What is his or her motivation?

Has the informer been reliable in the past?

What is the intelligence of the informant?

How does he or she know about the violation?

Does he or she have a personal interest, and if so, what?

Does he or she have direct knowledge?

Does he or she have access to additional knowledge?

Does he or she harbor any vengeance toward the suspect?

Is he or she withholding some kind of information?

Has he or she lied about information in the past?

Is he or she willing to testify in court?

After the informant responds to the preceding questions, the investigator should have adequate information to proceed with a final evaluation of the person’s potential worth. If the informant poses more of a liability than a benefit, he or she should be eliminated from further consideration.

Maintaining Control

In May 2010, five men were arrested after they kidnapped a confidential informant working for U.S. Immigration and Customs Enforcement (ICE) during an attempted drug deal rip-off in Tucson. The incident unfolded as ICE agents, working on an undercover operation, negotiated a deal with a suspected drug dealer, Guillermo Leon-Rivera, for 600 pounds of marijuana. On April 12, agents provided Leon-Rivera and his associates with a pickup truck, which was to be loaded with the marijuana, agreeing to pay for it once it was returned. The truck was eventually returned to the buyer (the informant) empty.

Nonetheless, Leon-Rivera and four other suspects demanded payment from the informant in an act known as a “drug-rip.” They kidnapped the informant that same evening at gunpoint and then drove him to a house once owned by one of the suspects. They then bound him, beat him, and repeatedly threatened to kill him.

During the course of the evening and early morning hours of April 13, the five suspects continued to hold the informant hostage, making demands of the informant’s contacts for either full payment or return of the 600 pounds of marijuana. Unbeknownst to the five defendants, however, the person that the suspects thought to be a drug buyer was a confidential informant and the people the hostage takers had been communicating with all along were ICE agents. In addition, the ransom calls were audio-recorded and the earlier “load” pickup truck had been under continuous surveillance the entire day, confirming that no marijuana had ever been delivered to ICE or their undercover informant. An ICE Special Response Team raided the house at dawn, freeing the informant and arresting the defendants.

Customarily, the investigator who develops an informer is the one who is assigned to him or her. A cardinal rule in working with informants is for the investigator to command control of the investigation, not the informant. This is sometimes difficult to accomplish because many informants possess strong, manipulative personalities. Although informants should be asked frequently for their opinions, each suggestion should be considered carefully. Additionally, investigators must be careful not to promise anything they cannot deliver (e.g., money, a reduced charge, relocation of their family, police protection).

Control of informants is best achieved through frequent personal contacts with them. These interactions are the best method for debriefing informers and maintaining rapport with them. The officer assigned should make most, if not all, contacts with informants. Doing so reduces additional demands of the informant and ensures the person’s allegiance to the control officer. Another critical area of instruction for the informant is entrapment. Criminal suspects must be given an “opportunity” for the commission of a crime and not the “motivation” for doing so. If the entrapment issue is not remembered during the course of an investigation, the case may result in the dismissal of charges against the suspect and a soiled reputation for the department.

Protecting the Informant’s Identity

Experience has shown that defendants may attempt to injure, intimidate, or even murder people working with the police. Accordingly, investigators bear an ethical and professional responsibility to safeguard the identities of informants and their families to the best of their ability. During initial interviews, investigators should advise potential informants that it is impossible to guarantee the confidentiality of their identities absolutely but that all efforts will be made to do so. In fact, the U.S. Supreme Court has ruled that the identities of informants may be kept secret if sources have been explicitly assured of confidentiality by investigating officers or if a reasonably implied assurance of confidentiality has been made. Measures that can be taken by the investigator to protect an informant’s identity include:

Limiting direct contact with the informant to one investigator or the “control” agent (unless the informant is of the opposite sex, in which case, two investigators should be present); meetings should be brief and held where neither party will be recognized

Minimizing telephone conversations between control agents and informants in the event that someone is listening in on the line

Selecting different locations to meet

Warning informants about discussing their associations with the police to anyone, including their friends and spouses

The U.S. Supreme Court addressed the issue of protection of the informant’s identity in court. In U.S. Department of Justice v. Landano (1993), the Court required that an informant’s identity be revealed through a request made under the federal Freedom of Information Act. In that case, the FBI had not specifically assured the informant of confidentiality, and the Court ruled that “the government is not entitled to a presumption that all sources supplying information to the FBI in the course of a criminal investigation are confidential sources.”

Legal Considerations

Information gathering is a complex process that raises many ethical and legal questions regarding the techniques used by investigators. For example, when police pay informants for information, critics argue that the informant might be tempted to entrap persons into committing crimes so that the informant can realize some income. Another common use of informants is flipping. This is a procedure in which an arrested person is given the choice of providing information to police in exchange for dropping their charges. Flipping is a widely used procedure requiring approval of the local prosecutor, but it still raises questions about the ethical appropriateness of the procedure. Simply put, the informer’s primary role is to provide probable cause to police for arrests and search warrants.

Investigators frequently ground their investigation upon information provided to them by informants. For many years, the courts used what has become known as the “Aguilar–Spinelli two-prong test” for evaluating whether information provided by an informant properly established probable cause for an arrest or search.

The first prong of that test assesses the credibility of the informant or the “source.” In other words, can the informant be believed? Law enforcement officers, prominent citizens, and crime victims all are presumed credible but criminal informants are presumed unreliable. The credibility of criminal informants is a crucial issue in criminal investigation. Credibility must be established through a documented track record of reliability—having made a statement against their penal interests, corroboration of the supplied information, or establishing that the informants have a strong motive to tell the truth.65

The second prong of the Aguilar–Spinelli test is an evaluation of the informant’s basis of knowledge. Stated differently, how does the informant know what he or she knows? In explaining an informant’s basis of knowledge, an investigator is essentially trying to establish that the informant knows what he is talking about. One way to establish a basis of knowledge is if the informant states that he saw the criminal activity; another way is if the information from the informant is so detailed that a reasonable officer could infer that the informant was an eyewitness or received the information from a reliable source who was himself an eyewitness.66

The legal playing field regarding informants changed, however, in 1985. In Illinois v. Gates, the U.S. Supreme Court ruled that probable cause is a practical, nontechnical concept and that it should not be weighed in terms of library analysis by scholars using tests such as the Aguilar–Spinelli two-prong test.67 Rather, the Court stated that the test for probable cause under the Fourth Amendment should be a totality of the circumstances test. The Court reasoned that probable cause is a fluid concept that turns on the evaluation of probabilities in a set of specific facts by those known in the field of law enforcement. The Gates totality of the circumstances test gives investigators and courts more flexibility when deciding if there is probable cause in a particular case. Although the Aguilar–Spinelli two-prong test is not a legal requirement in federal and most state courts, the test often is used as a guide by courts in determining probable cause based upon an informant’s tip.

Concerned Citizens as Informants

Concerned citizens who have information regarding suspected criminal activity sometimes contact criminal investigators. Typically, concerned citizen informants give police information out of a sense of civic duty. To be considered a concerned citizen informant by the courts, an informant must not be involved in the criminal activity for which they are providing information. Accordingly, a concerned citizen does not usually have a track record for reliability with the police. However, a track record for reliability is not necessary to establish the credibility of a concerned citizen. As a general rule, if a concerned citizen’s identity is known to the police, he is presumed credible.

Assuming an identified concerned citizen has a reliable basis of knowledge, an officer could have probable cause to arrest a suspect on only the slightest corroboration of the information. For example, in State v. Lindquist, the concerned citizen informant identified herself to the police and stated that a suspect had shown her marijuana in his car and told her that in a few minutes he would be driving to a specified geographical area with the drugs.

The informant provided investigators specific details about the suspect’s vehicle and license plate number. The officers found the vehicle described by the informant traveling in the foreseen direction. They pulled over the suspect’s car and arrested him. The officers found five pounds of marijuana in the vehicle. The Supreme Court of Minnesota characterized the police finding the car as corroboration of many of the details given in the tip and ruled that the officers had probable cause to arrest the suspect.

Anonymous Tips

In the Lindquist case, the informant identified herself to the police. On the other hand, if a concerned citizen wishes to remain anonymous to the police, he would not be presumed credible, and the need for corroboration to establish his credibility would be more rigorous. In Illinois v. Gates (discussed earlier in this chapter), the U.S. Supreme Court reviewed the sufficiency of the corroboration of an anonymous tip. In the Gates decision, the Court stated that it was important that the anonymous tip contained details regarding unusual future travel plans of the suspects. The anonymous tipster, in a letter to the police, stated that Sue Gates ordinarily drove her car to Florida, where she would leave it to be loaded with drugs. Lance Gates would fly down later and drive the car back to Illinois, and Sue would fly back to Illinois. The letter indicated that they planned to make a trip to pick up over $100,000 worth of drugs on May 3, 1978.

A police detective assigned to the case determined that Lance Gates made a reservation on a flight to West Palm Beach, Florida, scheduled to depart from Chicago on May 5, 1978, at 4:15 p.m. The detective made arrangements with an agent from DEA for surveillance of the May 5 flight. DEA agents observed Lance Gates boarding the flight, and other agents in Florida observed him arriving in West Palm Beach, Florida. The Florida agents then observed Gates take a taxi to a nearby motel and go to a room registered to Susan Gates. Early the next morning, the agents observed Gates and an unidentified woman, presumably Susan Gates, leave the motel in an automobile bearing Illinois license plates registered to another vehicle owned by Gates. Gates drove northbound on an interstate highway frequently used to travel to the Chicago area. The Court in the Gates case ruled that such uncommon conduct was suggestive of a prearranged drug run. Once the police corroborated the major details of the travel of the suspects, which were predicted by the anonymous tipster, it was reasonable to conclude that the information about the future conduct of the suspects likely was obtained directly from one of the criminal participants or from someone they trusted who was familiar with their criminal plans. The Court ruled that the corroboration of the anonymous tip was sufficient to establish probable cause for a search warrant to search the suspects’ home and car upon their return to Illinois.

While it is preferable to corroborate suspicious criminal conduct before arresting a suspect based upon an anonymous tip, some courts are satisfied with corroboration of innocent details from an anonymous tip to establish probable cause.68

Jailhouse Informants

As discussed, the majority of informants utilized by criminal investigators are criminals. This is not to say that information provided by them is not factual, but it is to say that based on their motivation, information provided may be tainted with “spin” or truth mixed with lies. This is especially critical when considering the use of informants who are incarcerated or jailhouse snitch. Jailhouse informants are notorious liars and by virtue of having little to nothing to lose by lying, they might tell the investigator almost anything in exchange for some form of leniency. John Madinger in his book Confidential Informants states, “Jailhouse informants are highly motivated. They want out—at least out sooner. It is probably not surprising that quite a few will lie, cheat, steal to get what they want.”69

In spite of the inherent problems working with informants, they have proven useful on occasion. For example, many cold cases, those that have gone unsolved for many years, are solved by jail cell confessions given by the perpetrator to a fellow inmate.70 The informant will generally channel their information through a corrections officer or via telephone to detectives. Problems present themselves when investigators subsequently direct the informant to obtain confessions or admissions from the incarcerated target suspect. In some cases, unscrupulous investigators have provided informants who then fabricate a defendant’s confession. Such actions present the risk of serious Fifth and Sixth Amendment violations and should be apparent to investigators and prosecutors alike.71