MEETING WITH INFORMANTS

The selection of a meeting place, on each occasion, should be made by the control investigator and not by the informant. The location and time should vary with due consideration to both the investigator's and the informant's normal routines.

There may be occasions when contacting the informant directly is undesirable. An unlisted telephone in the investigator's office is useful in this situation. When you answer such a telephone, simply say "hello" and not "Investigations, Investigator Jones speaking." If pressed for more information by an unknown party, repeat the telephone number but provide no further comment.

Other methods of contacting the informant may also call for guarded or unguarded letter drops, or the mail. Always prepare an informant with a cover story in the event he or she is observed in the company of the control investigator. The cover story should be simple and acceptable to any casual observer. Careful judgment in communicating will avoid revealing the status of the informant.

Meetings should be held at a place other than the investigator's office and should be planned so as not to create a recognizable pattern.

The informant's identity should not be revealed in any communications.

TREATMENT OF INFORMANTS

The treatment of informants is a delicate matter because of the variety of motivations present. Each informant will be different, and treatment of each must differ accordingly. However, certain rules are applicable:

Avoid the use of derogatory terms. An investigator may be working with unscrupulous or despicable persons. To some, the label "informant" may conjure up many derogatory connotations, such as stool pigeon, traitor, double-crosser, rat,fink, and squealer. It should be obvious that these terms have no place in the police-informant relationship. Any informal use of such derogatory words will endanger rapport.

One of the most compelling deterrents against informing is the hatred that can come from other people. Although the investigator may have some similar feelings, the language used should not reveal this attitude. Substitute a term like source or some other similar term.

Express appreciation by encouraging and complimenting the informant for all information received, regardless of its value. A conversation often starts out, " I don't know if this is worth anything, but . . ." only to turn out to be the information being sought. Encouragement should not be interpreted to permit an informant to take charge of any phase of the investigation, although some informants will try it, intentionally or not. The investigator should not share investigative information with the informant. Revealing information will establish a susceptibility to double-cross.

Make good all promises and make no promises that cannot be kept. Do not promise the informant that he or she will not go on trial for certain crimes. The investigator can, however, make good a promise to notify the trial counsel of the informant's cooperation in aiding the investigative effort. The investigator must be scrupulous in the fulfillment of all promises made. Any other policy will result in a lack of trust and the loss of the informant, to say nothing of the investigator's self-respect.

There are many guides to remember when dealing with an informant, such as keeping appointments on time, even though the informant may not appear. Don't become anxious. Be patient. Investigate all leads. The fact that a previous tip was of no value after investigation should not be cause for automatically discounting other tips. Be noncommittal about the value of the information received. Consider all information from informants as valuable until proven otherwise.

LEGAL STATUS OF INFORMANT INFORMATION

Generally, military courts will treat informant information as hearsay and evaluate it for reliability in making probable-cause determinations, as in an application for a search warrant. If it can be established that the hearsay information is reliable and credible, the court can accept it under certain conditions.

In contrast, if the court is skeptical about the informant's reliability, it may reject the information. The court will look at the source of the information. If it is from reputable citizens (public officials or informants with a history of reliability), it will carry more weight than if it is from anonymous phone calls, known criminals, or informants whose reliability is questioned or unknown. The court will also evaluate information in terms of the corroboration made by comparing the specific allegations with the circumstances and events.

A guiding case that demonstrates conscientious efforts to corroborate information is found in Draper v. United States, 358 U.S. 307 (1959).

A reliable informant identified the defendant to the police by physical appearance (skin complexion, height, weight, size, sex), and dress (color and type of coat and hat), as well as what he would be carrying (black satchel with narcotics), and stated which train he would be on. The policemen met the train and observed the defendant, exactly as described, get off the train. They apprehended Draper and recovered the narcotics in the black satchel.

The U.S. Supreme Court found that the events observed by the policemen substantially corroborated the information. The Supreme Court held the apprehension to be lawful and the search for narcotics incidental to a lawful apprehension.

The Supreme Court in McCray, 386 U.S. 1042 (1967) strengthened the Draper ruling. Policemen who make apprehensions based on information furnished by a reliable informant and are able to establish past reliability or independently corroborate the information ordinarily need not disclose the informant's identity, and the apprehension will be lawful.

The informant's background and source of knowledge are essential in evaluating information. The Supreme Court held in Aguilar v. Texas, 378 U.S. 108 (1964), that it was insufficient for the policeman to simply tell the judge in an application for a search warrant that the informant had previously proved to be reliable or that the policeman knew the informant was reliable. That affidavit was inadequate because, first, the underlying circumstances necessary to enable the magistrate to independently judge the validity of the information were not set forth and, second, the policeman did not attempt to support the claim that the informant was credible or the information reliable.

The Supreme Court held in Spinelli v. United States, 393 U.S. (1969), that when corroboration of the informant's tip did not provide more than mere suspicion that a crime was probably being committed, then the information was insufficient. Further, that a simple assertion of suspicion that Spinelli was a known gambler was not itself a sufficient basis. The court's main concern was not that the information was so insubstantial, but rather that it needed further support. In the Spinelli case, the affidavit fell short of the standards set forth in Aguilar and Draper. The court further stated it was not retreating from the established proposition that only the probability and not the prima facie showing of criminal activity was the standard of probable cause. However, the unsupported assertion or belief of the policeman did not satisfy the requirement of probable cause.

In United States v. Barton, II J.J. 230 (CMA 1981), the court stated that the reliability of informants could be established in various ways and was not restricted to establishing previous reliability in terms of apprehensions, convictions, and so forth. In that instance, the police established reliability by obtaining information separately from two informants, and the interlocking of details in the two accounts established probable cause.

As a general rule, the trial counsel has the privilege of withholding the identity of persons who have furnished information. However, in situations where no corroboration or reliability of the information is established, the informant's identity may have to be revealed. The case may have to be dropped rather than have the informant testify in court. Unless there is a previous agreement regarding the court appearance, an informant should not ordinarily be required to appear in court.

If the informant has done more than merely provide a lead, then it may be shown that he or she is a material witness whose testimony would be of value to the defense. The informant's testimony would be relevant to the accused's defense and essential to a fair determination of the case if the informant participated in the crime, assisted in planning the crime, or was involved in some overt act encompassed by the crime. If the informant aided in the actual investigation by accompanying the investigator to the crime scene, or helped with a surveillance, observed the crime, or was present when the defendant was arrested, the informant's importance to the defense must be recognized. (See rule 507, Military Rules of Evidence, Manual for Courts-Martial, 1984 (rev).)