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Ethical Issues in the Use of Confidential Informants for Narcotic Operations

By Brian Lieberman, Supervisor of Special Investigations, Winter Haven Police Department, Winter Haven, Florida


onfidential informants are crucial to many law enforcement investigations and are especially essential in the field of narcotics investigations. Informants can provide specific information that is simply not available from other sources. However, the informants are often criminals themselves; if not properly managed, they can render a law enforcement investigation useless, destroy an agency’s credibility, and even endanger officers’ lives. To use confidential informants successfully, agencies must develop formal and sound informant control procedures.


Agency Control Procedures

There are three essential actions agencies must take to ensure the proper use of informants. First, they must set forth policies and procedures through a written directive. Then they must define the roles and responsibilities of all persons in the chain of command, from the chief to the supervisor to the investigator. Finally, agencies must train personnel in techniques for working with informants.

Among the control procedures agencies should institute is an informant file system that not only maintains personal, descriptive, and criminal information about informants but also clearly establishes informants’ credibility and reliability. Information provided in investigations by even the most credible and reliable informants must always be corroborated.

Before using confidential informants in an investigation, investigators must receive supervisory approval from the appropriate authority. Officers must ensure that informants understand the provisions of their agreement with the agency, emphasizing that informants are not law enforcement officers, have no arrest powers, are not permitted to conduct searches and seizures, and may not carry a weapon. Informants are not to take, and agencies will not condone, any actions that may be considered entrapment.

Even with adequate agency control of informants,1 individual investigators will still face serious ethical issues when working with them. Therefore, agencies need to provide ethics guidance to any officers who are using or may use informants in their investigations. In addition, law enforcement officers should always maintain their professionalism and take every possible measure to ensure that sources are kept confidential.


Preparing for Ethical Issues

When working with informants, narcotics investigators are constantly faced with ethical questions. Narcotics investigations often use confidential informants to lead investigators to their key targets; they are the insiders to the drug world and have the ability to go places and speak with people inaccessible to the police. Informants work within an illegal enterprise system and therefore are for the most part involved in illegal activities.

Agencies must develop a training program to prepare investigators to deal with informants. Such training should focus on understanding informant motivation, internal agency procedures for informant control, legal use of informant information, and problems associated with informant contact. This training will enable investigators to avoid the following common pitfalls.

Failure to Maintain a Professional Relationship: In working informants, officers need to role play and express interest and concern to gain the informants’ confidence; however, in the process investigators can easily develop a personal interest in informants and cross the line between a professional relationship and one of a personal nature.

Confidential sources frequently derive from the same criminal pool that police work hard to arrest. These informants can range from petty thieves to violent career offenders. More times than not, they supply police with information merely in an attempt to “work off” their own criminal actions. It can be an internal struggle for police officers to know that they are helping known criminals to secure an earlier release from jail or to avoid jail time altogether. Investigators must weigh the benefit of the information informants provide against the crimes they have committed. Because informants may attempt to continue to use and deal drugs and commit other crimes in their neighborhoods while providing intelligence to the police, investigators must make it clear that they will not tolerate any further violations and that informants will be arrested if found continuing to engage in illegal activities.

At times, drug investigators must work with and befriend drug users, prostitutes, burglars, and con artists in order to reach the desired outcome—to get the worst of the worst off the streets. Narcotics investigators have to maintain a sort of temporary, fictitious friendship with informants knowing that their only goal is to obtain valuable information. It can be easy for officers to let that relationship slip to a personal level, but they must refrain from doing so at all costs.

Sometimes informants mistakenly consider their working relationship with investigators to be a genuine friendship. They may divulge information about themselves that investigators must evaluate. Officers need to remember their agency’s policy and their training when using their own judgment to weigh any self-incriminating information informants may provide against information sought regarding the investigative target.

An additional major ethical issue concerns transactions involving confidential informants. Agencies must strictly account for and audit all such transactions to ensure that appropriate procedures are followed.

Gullibility and Failure to Evaluate Motivation: It is imperative to understand the motivation of informants who come forward with information. Motives can sometimes be determined through an interview and background check; however, interview information is only as valid and reliable as the interviewee. Recognizing informant motives can enable officers to detect possible informer setups. Informers can easily fabricate information; unfortunately, the system gives them every reason to do so.

It is not unusual for scorned lovers to suddenly reveal information about their former romantic partner. Regrettably, because emotions are involved, people seeking revenge tend to embellish facts. Can investigators ethically use such people as informants? What if a vengeful ex holds the key to a major investigation—does the situation change? Investigators can spend thousands of hours attempting to establish a case when the right technique and words will provide the same information in minutes from a former partner of the target and break a case wide open. Is it ethical to advise individuals that their information cannot be used if investigators feel it is provided out of spite? Is using such information a risk, or just part of the job?

Failure to Corroborate Information: Although information from informants can quickly give direction to an investigation, any such information must be corroborated using other resources. Corroboration reduces the likelihood that informants will have to testify in court, ensures that the information obtained is reliable, and provides a cover for information that could lead investigative targets directly back to informants. An ethical quandary can arise when important information is available only from an informant and cannot be corroborated; do investigators continue with that information, even if it may require the informant to appear in court?

Inappropriate Handling of Money, Property, and Controlled Substances: Monetary rewards are a key to success with many informants. Investigators usually have the option of paying informants using the agency’s confidential funds for knowledge of criminal activities. If informants are well paid, they will generally come back with more information. Regrettably, the money narcotics investigators supply to informants will most likely be used to support drug habits. Is it an ethical problem if informants are using money from police to buy drugs, or is it just the cost of doing business with them? It seems only logical that police use the middleman to ultimately reach the main source of a drug supply. But in doing so, aren’t police contributing to a problem that they so adamantly fight?

A discussion of the management of confidential funds is beyond the scope of this article, but it is essential to note that funds be properly controlled and accounted for. Likewise, property and controlled substances must be handled and disposed of in accordance with agency policy and procedures.2

Making Promises That Cannot Be Kept: In the pressure to get to the target of an investigation, officers may be tempted to promise large money payments or favorable prosecutorial or judicial outcomes to informants. Narcotics investigators often seek permission from prosecuting attorneys to use informants through plea bargain arrangements. Informants may indeed receive a reduced sentence for substantial assistance, but what qualifies as substantial assistance is determined subjectively by a judge, not investigators. Oftentimes, this subjectivity can lead to too much leniency, or not enough.

For investigators and agencies to maintain street credibility, they must be able to keep the promises they make to informants. Furthermore, investigators must know that they can deliver on the promises they make.

Failure to Adequately Document Informant Activities: Defense attorneys frequently use entrapment as a defense in drug cases assisted by informants. An agency commits entrapment by inducing a person to commit an offense when the person would otherwise not have done so except for the agency’s or its officers’ persuasion, fraud, or trickery. In addition, illegal actions by informants can cause attorneys to claim “outrageous conduct” by asserting that an agency’s or its officers’ conduct was so outrageous or shocking to fundamental fairness that due process would bar a conviction. When informants are allowed to involve themselves too heavily in the criminal activity of the target, an entrapment defense could prevail. Informants must remain passive observers of criminal acts and not instigate them. Activities of informants must be documented thoroughly to show that informants did not engage in entrapment.

Only rarely are confidential informants upstanding citizens who desire to assist law enforcement for the good of society. Informants frequently possess criminal backgrounds. Can investigators ethically use an informant who has a suspended driver’s license, knowing that the informant will drive? Does the outcome of doing so outweigh the liability risk? Would it be ethical to use an informant charged with a sex offense to conduct a controlled purchase of drugs from a house near a school? Investigations often put narcotics enforcement officers in positions that force them to use their conscience and their ethics training to distinguish between right and wrong.


Who’s a Rat?

The confidentiality of informants is of primary concern in law enforcement operations. Informant identities must remain undisclosed to protect them and to preserve the service they provide. However, a Web site called Who’s a Rat? (whosarat.com) reveals identities of informants and their law enforcement agents. Through the site’s database, visitors can contribute information about local police, federal agents, and police informants. According to an Austin Chronicle article, the site’s founder, Sean Bucci, said, “Every month, nearly 100,000 Americans are arrested on drug charges. . . . [I]nformants . . .often tell outright lies in an effort to get their own criminal charges or sentences reduced.” A contributor to the Web site, Brian Drake, commented, “If the state is going to have databases on us, it seems only fair that we can have a database of agents and informers as a tool for defense attorneys and defendants.”3 The information found at this Web site puts informants’ lives in jeopardy. Is it ethical for such identifying information to become public knowledge through the Internet? Or should law enforcement take action to protect its assets?


Ending the Relationship

Where does law enforcement draw the line when working with informants? Television shows depict clever ways an informant can be manipulated into cooperating. Investigators make promises of money or reduction or elimination of jail time, or guarantees of never having to testify, with no intention of fulfilling them. Hollywood produces movies in which officers intimidate informants by threatening to arrest and/or prosecute them or expose them or ruin their reputation. In reality, agencies have instituted codes of conduct to prevent officers from making empty promises and threats. There are consequences for those who do not strictly uphold these codes. According to an article by Matthew Dolan of the Baltimore Sun, two Baltimore detectives were recently indicted in federal court for using the threat of force, arrest, and prosecution as their enforcement tools.4

There are legal ways to manipulate an informant. Familiarity with the drug culture will help investigators considerably when interacting with informants. Establishing a rapport is important, but a comfortable distance must be maintained.5

Although confidential sources are instrumental for some investigations, investigators must know when to terminate the relationship. There are times when informants think they are untouchable due to the valuable information they provide to police. They may begin to feel comfortable and take advantage of their situation by continuing to break the law, assuming that they will be exempt from prosecution. Even though these informants may be valuable assets in usable intelligence, such behavior requires agencies to contemplate deactivating their special status.

According to Wrobleski and Hess, the use of informants remains one of law enforcement’s oldest and most essential investigative tools.6 There is a fine line separating ethical and unethical actions when using confidential sources. As stated by Edwin J. Delattre in Character and Cops: Ethics in Policing, “No one who does not already care about being a good person and doing what is right can have a serious ethical question. A person must have achieved a disposition to do the right thing in the right way at the right time for the right reasons before any moral perplexities can arise.”7 Training and codes of conduct provide guidelines for practice and procedure; however, police officers must make ethical judgment calls at their own instinctive discretion.■


Notes:
1See IACP National Law Enforcement Policy Center, Confidential Informants and Information: Model Policy (Alexandria, Va.: International Association of Chiefs of Police, 2003), and IACP National Law Enforcement Policy Center, Confidential Informants and Information: Concepts and Issues Paper (Alexandria, Va.: International Association of Chiefs of Police, 2003).
2See IACP National Law Enforcement Policy Center, Confidential Funds: Model Policy (Alexandria, Va.: International Association of Chiefs of Police, 1989), and IACP National Law Enforcement Policy Center, Confidential Fund: Concepts and Issues Paper (Alexandria, Va.: International Association of Chiefs of Police, 1989).
3Jordan Smith, “Look, Mom! A Rat!” Austin Chronicle, September 3, 2004, www.austinchronicle.com/gyrobase/Issue/story?oid=oid:227261, May 2, 2007.
4Matthew Dolan, Baltimore Sun, March 16, 2006.
5See U.S. Department of Justice, The Attorney General’s Guidelines regarding the Use of Confidential Informants, May 30, 2002, www.usdoj.gov/olp/dojguidelines.pdf#search=confidential%20informants, May 3, 2007; see also Office of the Inspector General, “The Attorney General’s Guidelines regarding the Use of Confidential Informants,” chap. 3 in The Federal Bureau of Investigation’s Compliance with the Attorney General’s Investigative Guidelines (Redacted), special report, September 2005, www.usdoj.gov/oig/special/0509/chapter3.htm, May 3, 2007.
6Henry M. Wrobleski and Kären M. Hess, An Introduction to Law Enforcement and Criminal Justice, 6th ed. (Belmont, Calif.: Wadsworth/Thomson Learning, 2000), 246.
7Edwin J. Delattre, Character and Cops: Ethics in Policing (Washington, D.C.: American Enterprise Institute for Public Policy Research, 1989), 5.


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From The Police Chief, vol. 74, no. 6, June 2007. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.








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