The Police Asked Me to Be an Informant - Should I?

The activities of an informant are glamorized in movies and on television as dangerous, exciting, and dramatic.  The informant can be the key witness everyone relies upon, so they are respected as powerful.  Police appreciate this image of an informant, so it is not uncommon for police to appeal to this sense of adventure in saying, “Give us three and we’ll set you free.”
The Gist of This Article:  When police propose that a suspect serve as an informant in exchange for “dropping charges” or making sure a minimum sentence is the punishment, do not accept such an offer without it being in writing and with the district attorney also signing the agreement.  This may complicate the process or frustrate the police, but such an offer of leniency by being an informant is otherwise unenforceable.
The promise can sound enticing and attractive.  The client may be facing arrest for possession (of illegal drugs) for sales and is no longer eligible for Prop 36 or PC 1000 diversion programs.  The client may have been caught “red handed” and without any real defense.  Or the client may be young and naïve enough for the police to manipulate into unwanted confessions. Lastly, the client may be facing a third strike with an indeterminate sentence of twenty-five years to life.  In short, police may have an anxious individual eager to reduce his exposure or walk out of the police station.

The fundamental problem with the police offer of being an informant is that the police are neither the prosecutor nor the judge.  The police do not have such power.  They cannot control the district attorney or the judge. 

While exceptions do exist, our office has found that it is foolish to believe anything the police promise in the course of their investigation unless, it is in writing and signed by a prosecutor, with the individual’s attorney present, often with a court reporter also present.  It is vitally important that the informant have protection from prosecution for information beyond a mere oral promise.  Such a promise can be denied as having ever been given.  Likewise, police can claim (perhaps falsely) that the information provided is information they already know.  However, such information will only increase the number of charges the client faces.

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For a binding, valid informant agreement to exist, the state needs information about suspected criminal activities without the knowledge or consent of the suspect or suspects.  The agreement is in exchange for leniency in punishment or immunity.  Sometimes, the individual will make a purchase of a controlled substance, also known as a “controlled buy.”  Often, a felony is reduced to a misdemeanor in appreciation for information provided.

The information that the informant provides must be sufficient for use in an affidavit for a search warrant.  The most common use of such affidavits is for search warrants related to narcotics sales, weapons sales, animal cruelty or any other type of recurring criminal conduct.

Evidence Code § 1041 and 1042 address the issue of the informant’s confidentiality to protect his or her safety.  Such provisions appear comprehensive and with the best intentions of preserving the effectiveness of the informant to combat crime.

However, the provisions never become effective if the police fail to honor their promise of leniency or immunity.  The key to making such an agreement beneficial to the client is safeguarding its existence, preferably in writing with several witnesses present.
For more information about police investigations, click on the following articles:
  1. Defendant’s Sixth Amendment Right to Cross-Examination Not Violated When Confidential Informant Testifies Wearing a Disguise
  2. Is It Illegal for the Government to Use an Informant with a Lengthy Criminal History in a Drug Investigation?
  3. Suspected Ecstasy Drug Trafficker Successfully Challenges Search of His House Based on Faulty Search Warrant Affidavit
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