Informant's Tip

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INFORMANT's TIP

A police officer's own observations may not be required to establish probable cause for an arrest warrant or search warrant (or for an arrest without warrant). Probable cause may be established by an informant's tip, even if it is hearsay, if there is adequate basis to credit his word. The Supreme Court has, however, been troubled by the criteria necessary to determine an informant's truthfulness.

draper v. united states (1959) was the first case to hold that an informant's word, when corroborated, was sufficient to establish probable cause; the informant had previously proved reliable, and his story was later substantially verified by the officer's own observations. aguilar v. texas (1964) established a "two-pronged" test, amplified in spinelli v. united states (1969) and generally followed until 1983: the affidavit (or the officer's personal testimony) must make clear to the magistrate, first, some of the underlying circumstances from which the informant concluded that criminal activity was afoot (such as personal observation of the suspect's action), and second, some of the circumstances from which the officer concluded that the informant was telling the truth (for example, his previous record of reliability). Failure fully to satisfy either "prong" could be remedied by substituting highly detailed information (even of a nonsuspicious nature) demonstrating that the informant's statement was based neither on rumor nor on the suspect's bad reputation.

In illinois v. gates (1983) the Court abandoned the Aguilar-Spinelli test in favor of a much looser "totality of the circumstances" approach, which would permit "a balanced assessment of the relative weight of all the various indicia of reliability." Thus, said the Court, the report of an informant who had previously been usually reliable would be acceptable even if it did not explain the basis of his knowledge.

The need to corroborate an informant's statement and demonstrate his reliability arises when the informant has a criminal past; his veracity is naturally suspect. The word of a law enforcement officer who provides information to another officer or that of an honest private citizen without ulterior motive requires no such corroboration according to the decision in Ventresca v. United States (1965). Uncorroborated anonymous tips to the police are worthless for establishing probable cause.

In order to prevent reprisals and maintain the future effectiveness of informants, the Court denied in mccray v. illinois (1967) that a defendant has the right to demand the identity of a government informant at a suppression hearing on the question of probable cause. The accuracy of statements, including those of informants, in affidavits for warrants can be challenged at a hearing if the defendant offers proof that the affiant lied or acted with "reckless disregard for the truth" in statements pertinent to the establishment of probable cause. The warrant's legality will not be affected by an informant's misrepresentation, however, if the officer had no reason to doubt the truth of the informant's statement.

Jacob W. Landynski
(1986)