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Confidential Informants – When the Government must disclose their identity?

For a Maryland Criminal Attorney it is imperative to understand the law regarding the use of confidential informants by police and prosecutors. There are generally two issues when dealing with confidential informants: The first issue is does the confidential informant provide sufficiently detailed information about which he or she can demonstrate a basis of knowledge to justify probable cause for a search or at least reasonable articulable suspicion for an investigatory stop. The second issue is whether or not the government must disclose the identity of the informant. I will discuss this second issue in this blog and leave the first issue for another day. The issue of whether or not the government must disclose the identity of the confidential informant issue turns on whether the informant is a “mere tipster” or an actually participant in the transaction. I have a case that I am currently working on where I intend to request the disclosure of the identity of the confidential informant. Here is my memorandum of law in support of that motion. I have deleted the last names and other identifying information of the participants including my client for privacy reasons.

MOTION TO DISCLOSE CONFIDENTIAL INFORMANT
The Defendant, Troy , through his attorney, Brian G. Thompson and Silverman, Thompson, Slutkin and White, LLC., hereby files this Motion to Disclose Confidential Informant, and in support thereof, states:
INTRODUCTION Detectives allege that they were contacted by a registered confidential informant “during the month of February 8, March 8” and advised that “large sums of illegal narcotics were being transported and sold along the Northern Parkway corridor.” The registered informant allegedly further advised that a “2dr. Acura Legend bearing a Virginia #*#@$% was transporting illegal narcotics in this vehicle.” On March 4, 2008 Detectives allege that they spotted this vehicle traveling in the 5500 block of Laurelton Avenue. Acting solely on the tip of the Confidential Informant the detectives initiated a traffic stop. The driver of the vehicle was identified as Lamont and the passenger was identified as the defendant, Troy. The detectives claim that upon approaching the vehicle they smelled an odor of “freshly burnt marijuana” coming from the vehicle. The detectives also claim to have seen a zip lock bag containing marijuana in plain view on the center console. Based on these observations the detectives ordered the occupants from the vehicle and allegedly advised them of their Miranda rights. The driver was asked if he had anything illegal on his person and the detectives allege that he stated “yes some weed”. He was then searched and recovered from his pocket was approximately 15 grams of marijuana. Troy was then allegedly asked the same question to which he allegedly responded “”I don’t have anything on me, you can check”. Troy denies making this statement. The detectives then searched Troy and allegedly recovered $1415.00 dollars in U.S. currency. The detectives then called in a K-9 Unit and allege that the K-9 alerted on the truck area of the automobile. Recovered from the trunk was approximately 3 pounds of marijuana. The detectives then allege that Troy made the unsolicited statement, “the 3 pounds of marijuana, belonged to me”. ” I get the marijuana from one person and sell it to another person for about $200 profit”. Troy denies making this statement. Troy was arrested. Lamont was not arrested.
ARGUMENT
The Defendant seeks disclosure of the confidential informant. In Edwards v. State, 350 Md. 433, 713 A.2d 342 (1998), Judge Wilner traced the modern law governing the disclosure of the identity of confidential informants deriving from Roviaro v. United States, 353 U.S. 53, 1 L.Ed. 639, 77 S.Ct. 623 (1957), and observed the distinction between disclosure of the identity of an informant who had participated in the criminal activity and a tipster. “[T]he privilege ordinarily applies where the informer is a mere ‘tipster,’ who supplies a lead to law enforcement officers but is not present at the crime, while disclosure is usually required when the informer is a participant in the actual crime.” Id. at 442, 713 A.2d at 347 (emphasis added). Lastly, Judge Wilner commented:
When the defense does rest on a showing that critical evidence was obtained in the absence of probable cause, however, and the determination of that issue depends principally on the reliability of an informant or the veracity of an affiant’s assertions of what an informant said or did, the balance [for disclosure of an informant’s identity] may have to be struck in favor of disclosure.

Id. at 445, 713 A.2d at 348 (citing Drouin v. State, 222 Md. 271, 286, 160 A.2d 85, 92-93 (1960)) (if the accused asserts a substantial ground indicating that the informer is material to his defense or the fair determination of the issue of probable cause the trial court should require that the informant’s name be disclosed).
In Edwards, the admissibility of the drugs seized from the defendant’s home hinged on the credibility of the informant. Hence, under usual circumstances, disclosure would have been required. The circumstances in Edwards, however, were unusual because the magistrate issuing the warrant had conducted an examination of the informant, under oath, prior to issuing the warrant and determined, as a matter of fact, that the informant was credible and reliable. 350 Md. at 449, 713 A.2d at 349-50. Therefore, Mr. Edwards had not been entitled to the name of the informant.

In Brooks v. State, 320 Md. 516 (1990), the Defendant was convicted of unlawful distribution of cocaine. Two undercover police officers drove into a parking lot accompanied by an informant. The informant, while seated in the car, called out to Brooks. Brooks came over to the car and after discussion with the undercover officers, agreed to purchase cocaine for them. Brooks returned to the car with cocaine and sold it to the officers. Two months later, Brooks was arrested. The Defendant asserted that he had not sold the officers the cocaine. Brooks moved to compel disclosure of the informant arguing that the informant’s testimony was necessary to bolster his defense. The trial judge denied his motion, ruling that the informer was a mere “tipster.” The Court of Appeals reversed the conviction holding that the trial judge erred in viewing the informer as a mere “tipster” in that the informant introduced the officers to the seller.
In this case, the State has provided no basis of knowledge for the information allegedly provided by the confidential informant – just the bald assertion that sometime between February 8 and March 8 the informant claimed that the car occupied by Troy would be transporting narcotics.
Troyasserts that the detectives fabricated the statement that they attributed to him wherein he supposedly claimed ownership of the marijuana that was found in the trunk. Troy further asserts that the reason the detectives arrested him, the passenger, and not Mr. Lomax, the driver, is that the confidential informant is a person who is related to Lamont, possibly his brother, Keith or that the informant was in fact Lamont. This assertion is supported by the fact that the police did not even arrest or charge Lamont for the marijuana that they claim was in plain view of the vehicle that he was driving or the 15 grams of marijuana that was found on his person.
Indeed both the issue of probable cause to stop the vehicle as well as the issue of who was in possession of the marijuana, Lamont or Troy, hinges on the credibility of the confidential informant. If the confidential informant turns out to be Mr. Lamont then the confidential informant is not a “mere tipster” but instead an actual participant in the transaction, requiring disclosure. If the informant turns out to be someone related to Lamont , such as his brother Keith, then this fact would give the detectives a motive to fabricate the statement that they attributed to Troy acknowledging ownership of the marijuana. Even if Troy is incorrect as to his supposition as to whom the informant may be, the informant’s identity is still crucial to his defense as the information allegedly provided by him/her provided the sole basis for stop of the vehicle.

Respectfully submitted,

Brian G. Thompson
Silverman, Thompson, Slutkin and White
201 N. Charles Street, Suite 2600
Baltimore, Maryland 21201
(410) 385-2225

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Defendant’s Motion to Disclose Confidential Informant was hand delivered to ASA Rebecca Cox on July 11, 2008.

___________________
Brian G. Thompson

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