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Discussion => Security => Topic started by: fizzy on March 11, 2012, 06:02 am

Title: New Jersey's confidential informant practices, report from ACLU
Post by: fizzy on March 11, 2012, 06:02 am
As described above, a long (very long) report from the NJ ACLU:
which addresses CI practices in NJ. I didn't find it here on search. As usual, sorry if it's a duplicate effort.
The text below is excerpted from the case review section, starting p.25. At a time when there are many warrantless searches, hold the line as far as the standards for those times when LE and prosecution can be bothered to get one. (I wish I were joking: I recently heard an overworked and usually good public defender say, "Oh, shit, *this* one needed a warrant, we almost missed that, we have to triple check these." Things have changed since I was a little kid, I guess, and my dad taught me to greet anyone I didn't know at the door with, "I'm sorry, you can't come in right now, you don't have a warrant." OK, or maybe my kin are just weird.)
Police sometimes use the claim of working with a CI instead of obtaining search warrants. In some of the case files that were reviewed, the investigating officers reported using a CI to target the defendant, but the information provided by the CI did not lead to a search or arrest warrant. In the absence of a unique identifying number, it is possible that the CI was not registered, as required under the AG policy, that the CI was cultivated on the street, or that there was no CI.
Several reports state that CIs have contacted police or that police have met with CIs to hold discussions about illegal narcotic sales that eventually led to either the CI or an undercover officer making a buy and an arrest being made immediately thereafter (a tactic known as a “buy/bust” operation). While this practice, which is common, may not be inherently problematic, a troubling and suspicious pattern begins to emerge when coupled with other facts reported in the files. Reason for suspicion about these investigations has developed in the past, in part because the documentation showing that the CI is registered has been either absent or equivocal. In those cases, the informant
is referred to as “working with” the police, and reliability is reported as based simply on “past performance.” Because of the reporting officers’ failure to include a unique identifying number, it may be impossible to connect the CI’s reliability to past work.
Data on whether or not a search warrant resulted from interactions with a CI (Table 4) suggest the police in New Jersey first employ a CI to confirm their suspicions and then subject the information to a higher level of judicial review. These cases are about evenly split as to whether or not the information produces a search warrant. While a search warrant may be preferred and represents good use of CIs, it is not always feasible. There may be instances where an arrest must follow immediately, such as if the operation is compromised and officer safety is jeopardized, or if the drug dealer has sold the balance of the product and may not get more. In those cases, the information from the CI does not produce a search warrant, but it does usually result in an arrest or search that is reported as consensual.
Although there is nothing specific in the Attorney General’s policy about how many prior buys a CI or undercover (UC) officer should make before applying for a search warrant or making an arrest, the accepted industry standard is to make more than one.53 More than one buy provides investigators with more corroborating details and credibility about the operation under investigation, giving police the opportunity to:
1. Learn more about the nature and extent of the operation, including whether a single type or multiple types of narcotics are being sold;
2. Observe and photograph the operation through surveillance, allowing them to determine:
a. The hours of operation
b. The presence of additional workers (e.g. lookouts, a “cash man,” enforcers, runners, females, juveniles, elderly) who could expand the network to build a wider case
c. The amount of police manpower needed to ensure public safety when shutting down the operation
d. The presence of additional buyers and their approach (e.g. routes of entry and exit and whether people mainly come by foot, bicycle, or car)
e. Whether it is primarily inside or outside. If inside, whether the location is fortified or booby-trapped and what the interior looks like; if outside, obvious escape routes
f. Where the cache of narcotics is kept
g. The presence of any weapons or vicious dogs
h. Other suppliers or any connection to other commercial or residential locations (e.g. transaction may take place on the street but the narcotics are hidden inside a nearby retail store)
i. Which vehicles may be connected to the operation (e.g. to hide or transport narcotics, weapons, paraphernalia, or proceeds)
3. Establish whether the seller is a one-off/opportunistic dealer54

Unregulated use of CIs can undermine Fourth Amendment rights. Several police reports used similar non-specific language to describe what occurred during the investigation or arrest of defendants. Although the actors and incidents changed, the statements in the police reports remained substantively the same. Words describing the suspect becoming “extremely nervous,” making a “furtive movement,” or moving “swiftly” or “quickly” were included without more concrete descriptions of physical movements or gestures. The reports all seemed designed to give the impression that the officer sensed something unusual — perhaps criminal — developing under the circumstances. While police officers are expected to use their training and experience to identify criminal behavior, they must also be able to provide details to explain why they sense something criminal is afoot. Intuition alone is insufficient to satisfy the dictates of the Fourth Amendment. In the police reports, these statements were often followed by a notation that the officer performed a self-protective frisk for weapons or conducted a consent search. At other times, it was reported that the suspect made a spontaneous admission to being in possession of contraband during the course of the investigation. In these cases, the defendant’s behavior was reported in a way that set the stage for police action conforming to one of the legally recognized exceptions to the warrant requirement. Although the Fourth Amendment permits warrantless searches and seizures when a recognized exception is invoked, the results are less credible when police officers report that their attention to a particular suspect is directly linked to information provided by a CI who is working for them but whose registration status is not immediately known.
The review of the case files also resulted in some evidence of a reportedly prominent field tactic that lends itself to “efficient” outcomes through constitutionally questionable means. In eight cases, the police reports gave the impression that the arresting officer(s) might be “backing into probable cause” or fabricating a set of facts to legally support a search
or seizure after an arrest (without probable cause) had already occurred. In such cases, the officer(s) reported facts necessary to establish reasonable suspicion for a stop and then probable cause for an arrest. The officer(s) reported those facts as if they occurred before the arrest, denying the facts as they actually occurred. Said differently, the police reports in question create an impression that officers undertook an illegal search or seizure, discovered contraband, and then created an account of the facts that legally justified their actions. At the time the arrest was made, the totality of the circumstances were already known, and by working backwards, officers were able to fill in the previously unknown
gaps that existed before they acted. Under these circumstances officers must perjure themselves first in the official report, then again at the Grand Jury, then again in open court by testifying to a fact pattern where the ordering of the events are not accurate, or at least the facts as reported were not known to them before they took action.55
While it is impossible to confirm from these reports whether the officers fabricated the facts in question, the tone of the reports suggest — at a minimum — a cavalier approach to using CIs, preparing official documents and following policy. Such reporting can contribute to a diminished public perception of the integrity and trustworthiness of police practice.
I think there's a light flavor of sardonic to that last sentence.

There is a Recommendations section towards the end, relevant in that it is suggesting a standard for reliability of CIs. A standard that seems to be one that a CI might not meet. I don't know if this is or is not a helpful thing if anyone is ever in the position of being snitched upon.

Policy Content
The policy should incorporate and include:
• The requirements found in Section 21 of the New Jersey Prosecutor’s Manual. • The requirements found in Section 9 of the New Jersey Prosecutor’s Manual. • The requirements found in Section 3 of the New Jersey Law Enforcement Officer’s
Reference Manual. • The requirements found in Chapter 5 of the New Jersey School Search Policy Manual and
Companion Reference Guide. • A uniform requirement that law enforcement agencies obtain approval from the county
prosecutor’s office before engaging the assistance of an informant. • A requirement that all agreements between CIs, whether or not they are awaiting
sentencing, and prosecutors or police be written and signed by both parties. • A requirement that written agreements include any and all promises of a plea bargain,
leniency, or other benefits (including monetary) the prosecutor or police may have made
to the informant. • A requirement that the informant be provided a complete and legible copy of the
agreement. • A requirement that county prosecutors establish a process for timely review and approval
or denial of law enforcement applications to use informants. • A prohibition against any law enforcement personnel promising or suggesting to a current
or prospective CI any type of immunity from prosecution without the express written agreement of the prosecuting attorney.
• A requirement that before a CI provides any assistance, the substantial assistance agreement must include a description of what work the informant will be doing, the length of service, and what benefits the informant will be receiving.
• A requirement that local law enforcement follow AG guidelines and protocols to prepare a record of all contacts with CIs and maintain it confidentially.
• A requirement that all law enforcement agencies utilizing confidential informants follow AG protocols governing training, implementation, and enforcement.
• A requirement that all police incident reports and search warrant affidavits contain a section establishing the confidential informant’s reliability by answering these questions:
° How the informant has been used in the past, or whether this is the informant’s first time being used;
° The nature and character of the previous investigations for which the informant has been used (e.g., narcotics, guns, stolen property, burglary);
° How many times the information has proved to be true and accurate; ° Whether the information led to the arrest of the target for which the
informant supplied information; ° Whether the information led to a search warrant for the person, place, or
object for which the informant supplied information; ° Whether the subsequent prosecution led to conviction or dismissal; and ° A complete description of the informant’s personal observations, assuming
such information would not reveal the CI’s identity, documenting: ° What the informant saw, heard, smelled, tasted, or touched; ° The length of time the informant spent with the target-person, target-place,
or target-object; ° Unique identifiers of the target person, place, or object (e.g., height,
weight, scars, marks, tattoos, address, description of the place or object,
license plate number); ° Precise location where the contraband is concealed.

Title: Re: New Jersey's confidential informant practices, report from ACLU
Post by: pine on March 11, 2012, 06:14 pm
Reminds me of The Wire. I suspect if anything a majority of CIs are used a crutch to give validity to hunches where no legitimacy exists to support them.

The reality seems to be that many low-tier police, even mid-tier, don't do any actual detective work which is necessary to provide evidence. If the ones I've known are anything to go by, they even appear to look down upon such as 'desk driving', despite the necessity of it to build a solid case. They are mostly bone-brains who cheat, use short-cuts and are approximately an inch from being a lynch mob at all times. They certainly aren't competition for us, our competition is a very small, select group of people

Often such herd creatures resort to violence when it is unnecessary. The public should feel little sympathy for the vast majority of cop deaths, for they were well earned. I can respect a police officer who is honest and morally consistent. If you get caught by such a man, it is alright in my opinion, you played the game and lost, you shouldn't disrespect or attempt to revenge your mistakes on him. In the long term, the *fittest* win, not the strongest. The people who play the long game, rule this world and always have done.

An alarmingly large majority, like Kmf keeps saying, play dirty. They can't use their brains, so they use their fists. Then they run to mommy State when they are responded to, and the State gives them more power to bully their way about. These men are like cattle, mooing and loing, perpetually reactive to the environment, always their fuck ups are somebody else's problem. As a result, they are unable to take either the big picture or place themselves in the position of a criminal.

They are so in-ept, that the academic literature in criminology is replete with examples where criminals deliberately generate a 'big noise' somewhere that is peculiarly attractive to these morons e.g. the bust of a well known dealer to LE, whilst continuing work when LE is distracted. Snakeheads even deliberately allow shipments of people to get captured, the people on board go around and around again getting captured all the time, it's a full time job for them. Getting repeatedly deported beats the shit out of farming in terms of risk/reward. Meanwhile, they travel on past with the main cargo or transports. Snakeheads lie awake at night thinking about scenarios to help local LE turn into even bigger circle jerks than they already are. It'd be sad if it weren't so funny :D

tldr; Empathy is a virtue for a reason!

Title: Re: New Jersey's confidential informant practices, report from ACLU
Post by: fizzy on March 11, 2012, 08:25 pm
See for a lot of information around this (Natapoff's blog - decent resource list on the blogroll too), excerpt below.
Very suggested reading for anyone who's potentially impacted by data from a compelled informant (not confidential, necessarily, that term should go away, see the Pickard case), even if it's not a classic CI - whistleblower cases and counter-attacks, inpatient / involuntary treatment settings, board reviews of professional licensure and peer interviews around credentials in those reviews, etc. Keeps up with case reports in the different media streams, keeps up with the state of the review, coherent explanations. Book is pretty good too.
The Supreme Court released an order today denying certiorari in Cash v. Maxwell, formerly Maxwell v. Roe, an important Ninth Circuit decision discussed in this previous post. Usually the Court does not explain cert denials, but this case generated a heated debate between Justice Sotomayor, who supported the denial, and Justices Scalia and Alito who thought the Ninth Circuit's decision should have been overturned. See SCOTUSblog post here, and L.A. Times story here.
Today's decision is important for a number of reasons. First, it shows that the Justices have joined numerous state and federal legislators in recognizing the problem of informant unreliability. Informant-based wrongful convictions are increasingly frequent in the courts and in the news, and many states have taken up the issue. See Legislation Section of the main website. Although the Court did not answer the question today, it's a sign of the times that the Justices are arguing about it.
Maxwell also shows how the legal debate over informant use is becoming less about procedure and more about substantive questions of reliability and innocence. Until recently, most informant litigation has been a fight over disclosure: the information that the government must disclose regarding its use of compensated criminal witnesses. The Maxwell case and the Sotomayor/Scalia debate squarely confront the substantive question of unreliability: how unreliable can compensated criminal witnesses be before the law restricts their use? Or to put it another way, how high is our tolerance for the likelihood of wrongful conviction? Even Justice Scalia concluded that the informant in Maxwell's case was a "habitual liar," and that there were reasons "to think it likely that [he] testified falsely" at Maxwell's trial. The Ninth Circuit took the next step, holding that the Due Process Clause does not permit such clearly unreliable evidence to be used. As a result of today's cert denial, this holding stands.
Finally, Justice Sotomayor pointed out that the Ninth Circuit relied on "an avalanche of evidence" that the informant in that case was unreliable. The existence of such evidentiary avalanches is a relatively new phenomenon. Thanks to the innocence movement and numerous new studies (see Resources & Scholarship section on the main website), courts and litigators have more evidence than ever before regarding the unreliability of criminal informants. These new data will surely change how courts consider such questions in the future.