Possession of Controlled Dangerous Substances and Confidential Informants

Maryand Criminal Attorneys or Criminal Lawyers in Baltimore and around the State deal with a high volume of cases involving the possession of controlled dangerous substance (CDS) such as cocaine, heroin, marijuana, ecstasy, methamphetamine, etc., and cases dealing with possession with intent to distribute these substances. Confidential informants are one of the primary sources of information for narcotics detectives and are regularly utilized by them in narcotics investigations. In some instances the informants are registered and paid, in others they are facing charges themselves and are seeking leniency with the authorities also known as “working off their charge”. Other informants are simply concerned citizens who are reporting criminal activity but are unwilling to testify in open court. Typically in these investigations, narcotics detectives will use information provided by the confidential informant either to secure a search warrant for a particular place or to establish probable cause to stop a particular individual, usually in the context of a car stop. These warrantless encounters are more frequently litigated than are cases involving warrants. The reason for this is that searches based upon warrants that are duly signed by a judge or magistrate are afforded a presumption of reasonableness. In challenging a search warrant the defense attorney has to get over the additional hump that is the “Leon” good faith exception. The good faith exception basically states that even if the probable cause for a search warrant is found to be deficient or some of the information contained in the statement of probable cause is found to be incorrect, the court will still uphold the constitutional validity of the search so long as the police officers acted in good faith. In other words a defense attorney basically has to show that either the police intentionally lied in order to get the warrant or that the warrant application is so completely devoid of probable cause that no police officer acting in good faith could have believed it to be sufficient. Obviously, this is a very difficult standard.

Conversely, when dealing with warrantless stops or searches, as in the case that I am currently litigating and blogged about yesterday, there is no good faith exception. The defense attorney simply has to demonstrate to the court that the police officers lacked probable cause to stop and arrest or search the defendant and the evidence will be suppressed. (In some circumstances a lesser standard known as reasonable articulable suspicion is utilized for encounters with the police that do not quite rise to the level of an arrest but where the person stopped is clearly not free to leave. These stops, known as Terry Stops, are shorter in duration than a stop requiring probable cause lasting only long enough for the police officer to confirm or dispel his or her suspicion.) A difficult task in and of itself but nowhere nears a daunting as overcoming a presumtively valid search warrant.
To analyze warrantless stops and arrests prior to 1983, courts utilized a two pronged test called the Aguilar – Spinelli test after the two Supreme Court decision in which it was promulgated. The two prongs were that the information provided by the informant must be reliable, usually requiring a showing of the basis for the informant’s knowledge, and that the informant was credible. In order to survive a challenge to a search warrant or a warrantless stop by the police, the government was required to show that the informant provided some tangible information related to each prong. In Illinois v. Gates, the Supreme Court scrapped the two pronged test in favor of a “less hyper technical” approach in which the courts review the information provided by the informant under a “totality of the circumstances” standard.
Under this new approach a deficiency in one of the two prongs could be compensated for by a strong showing in the other. For example if a confidential informant had provided accurate information on previous occasions, the court may be less concerned about an affirmative showing that the particular information provided by this informant was reliable. Similarly, if the information provided by the informant lends itself to independent verification by the police, such as by accurately predicting future events, then it may not be necessary to show that the informant is credible.
In the case that I am currently litigating the facts contained in the statement of charges are very favorable to my client. Those facts basically just say that a confidential informant told them that drugs would be transported in a Acura with specific tag number over a very wide geographical area, “the E. Northern Parkway Corridor”, sometime during February or March. Based on this vague information, provided by an informant with unknown credibility, that doesn’t even identify my client, it would be difficult to imagine any court upholding the stop. Unfortunately, the State has recently provided me with additional facts that the court will allow to be presented. In a search warrant case, the government is limited to the facts contained in the application for the search warrant, the so called “four corners” rule. In a warrantless stop or search the courts will allow the State to supplement the information contained in the charging document.
Returning to my current case, according to the police, the informant was a registered informant. To make matters worse for my client the police claim that the informant had provided accurate information prior to my client’s case which led to the arrest of suspects and the recovery of narcotics. The police also claim that the informant called them the day of the arrest and advised them as to the location of the car, although apparently did not provide specific information related to illegal activity.
These facts make the case more difficult for my client but still give him a fighting chance unless the police further supplement the record on the stand either on direct or on cross examination. These types of cases are always difficult if not impossible to thoroughly analyze prior to the hearing on the motion to suppress because the factual basis for the stop or arrest is never complete until after the police testify and that is definitely true in my current case.

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