Informants (also commonly referred to as informers, narcs or snitches) are individuals who supply information about suspected criminal activity to the police without the consent of the people or organizations about whom they are reporting.
There are two types of informants: (1) private citizens who, by chance, happen to witness a crime, and (2) police informants who, in essence, work as agents for the police or other law enforcement agencies.
Although both types of informants can provide reliable information, private informers are inherently more trustworthy. This is because police informants may be driven by their own motives when offering information. These motives generally relate to profit, immunity, or more lenient treatment than they would otherwise face for their own illegal activities.
That said, police and prosecutors in California routinely rely on both private and police informants when investigating and prosecuting cases. Information and testimony provided by informants is not only used to obtain search warrants but is also used in a variety of California criminal proceedings such as pretrial hearings and actual trials.
Before a judge will rely on an informant's information to issue a California search warrant or rule on a motion, two conditions must be satisfied:
- the informant must provide the judge with background information that led the informant to conclude that criminal activity took place (a simple unsupported conclusion that a crime occurred is insufficient)1, and
- the judge must evaluate the informer's reliability.
The first requirement may be fulfilled by either an in-person, court-conducted examination of the informant or through an affidavit provided by the informant. Either way, the informant provides the information under oath, and offering false information subjects him/her to California perjury law.
The second requirement may be satisfied if the judge
- knows the identity of the informant,
- has had past experiences with the informer, or
- is supplied with an officer's corroborating personal observations.2
It should be noted that the judge may order the prosecutor or officer to disclose the informant's identity (in the event it was kept confidential) in order to conduct the above investigation. However, the informant's identity will not necessarily be disclosed to the defense.
For obvious reasons, most informants will only provide information if their identity is kept secret. California law usually protects the informer's desire to remain anonymous.3
California's Evidence Code protects an informant who wishes to remain anonymous up to a point. If the judge determines that the identity of the informant must be revealed, he/she will order the prosecutor to disclose the informant's identity or risk having the case dismissed.
In order for the judge to require disclosure, the following facts must be established:4
- that the informant is a material witness on the subject of the suspect / defendant's innocence or guilt ("material" means of real importance or great consequence),
- that there is, in fact, a privilege to remain anonymous that is being asserted on behalf of the informant by someone authorized to do so (that is, a law enforcement officer or member of a prosecuting agency), and
- that nondisclosure could reasonably deprive the defendant of the right to a fair trial.
To determine whether these facts have been met, the judge may conduct a private (legally referred to as an "in camera") hearing. An in camera hearing takes place outside of a jury's presence and generally, without the defendant or his/her attorney.
What the judge learns in that hearing determines whether he/she orders the prosecutor either to disclose his/her witness's identity or agree not to use the informant's evidence.
California's laws regarding the use of informants can be complex - especially if protecting one's identity is at issue. Our related article on California search warrants may also be helpful.
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1People v. Aguilar, (1966) 240 Cal.App.2d 502, 508 ("In Aguilar v. Texas, supra (1964) 378 U.S. 108, 114 [84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729], the United States Supreme Court said: "Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, ..." . And in United States v. Ventresca, supra (1965) 380 U.S. 102, 108 [85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689], the court repeated that same admonition, saying: "This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the 'underlying circumstances' upon which that belief is based. Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.
2See same at 508. ("'Although information provided by an anonymous informer is relevant on the issue of reasonable cause, in the absence of some pressing emergency, an arrest may not be based solely on such information, and evidence must be presented to the court that would justify the conclusion that reliance on the information was reasonable. In some cases the identity of, or past experience with, the informer may provide such evidence, and in others it may be supplied by similar information from other sources or by the personal observations of the police.'")
3California Evidence Codes 1041 and 1042.
California Evidence Code 1041 -- Privilege of identity of informer. ("(a) Except as provided in this section, a public entity has a privilege to refuse to disclose the identity of a person who has furnished information as provided in subdivision (b) purporting to disclose a violation of a law of the United States or of this state or of a public entity in this state, and to prevent another from disclosing such identity, if the privilege is claimed by a person authorized by the public entity to do so and:
(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or (2) Disclosure of the identity of the informer is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the identity of the informer be disclosed in the proceeding. In determining whether disclosure of the identity of the informer is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.
(b) This section applies only if the information is furnished in confidence by the informer to:
(1) A law enforcement officer; (2) A representative of an administrative agency charged with the administration or enforcement of the law alleged to be violated; or (3) Any person for the purpose of transmittal to a person listed in paragraph (1) or (2).
(c) There is no privilege under this section to prevent the informer from disclosing his identity.")
California Evidence Code 1042 -- Adverse order or finding in certain cases. ("(a) Except where disclosure is forbidden by an act of the Congress of the United States, if a claim of privilege under this article by the state or a public entity in this state is sustained in a criminal proceeding, the presiding officer shall make such order or finding of fact adverse to the public entity bringing the proceeding as is required by law upon any issue in the proceeding to which the privileged information is material.
(b) Notwithstanding subdivision (a), where a search is made pursuant to a warrant valid on its face, the public entity bringing a criminal proceeding is not required to reveal to the defendant official information or the identity of an informer in order to establish the legality of the search or the admissibility of any evidence obtained as a result of it.
(c) Notwithstanding subdivision (a), in any preliminary hearing, criminal trial, or other criminal proceeding, any otherwise admissible evidence of information communicated to a peace officer by a confidential informant, who is not a material witness to the guilt or innocence of the accused of the offense charged, is admissible on the issue of reasonable cause to make an arrest or search without requiring that the name or identity of the informant be disclosed if the judge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the jury, that such information was received from a reliable informant and in his discretion does not require such disclosure.
(d) When, in any such criminal proceeding, a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure. Such hearing shall be conducted outside the presence of the jury, if any. During the hearing, if the privilege provided for in [California Evidence Code] Section 1041 is claimed by a person authorized to do so or if a person who is authorized to claim such privilege refuses to answer any question on the ground that the answer would tend to disclose the identity of the informant, the prosecuting attorney may request that the court hold an in camera hearing. If such a request is made, the court shall hold such a hearing outside the presence of the defendant and his counsel. At the in camera hearing, the prosecution may offer evidence which would tend to disclose or which discloses the identity of the informant to aid the court in its determination whether there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial. A reporter shall be present at the in camera hearing. Any transcription of the proceedings at the in camera hearing, as well as any physical evidence presented at the hearing, shall be ordered sealed by the court, and only a court may have access to its contents. The court shall not order disclosure, nor strike the testimony of the witness who invokes the privilege, nor dismiss the criminal proceeding, if the party offering the witness refuses to disclose the identity of the informant, unless, based upon the evidence presented at the hearing held in the presence of the defendant and his counsel and the evidence presented at the in camera hearing, the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.
4See California Evidence Code 1042 above.