Avoiding the informant trap: a blueprint for control.

"My informant said...." "I just talked to my informant about the robbery...." These phrases are repeated hundreds of times a day in law enforcement agencies across the country, as hardworking police officers gather information necessary to successfully perform their duties. Law enforcement often finds it necessary to use information provided by individuals of less than sterling character and reputation, who live and function within the criminal element itself. Although a multitude of factors may motivate these individuals to provide information to the police, the use of informants remains one of law enforcement's oldest and most essential investigative tools.

Many agency administrators raise valid concerns about the hazards involved in using informants and ask numerous questions to quickly assess their informant program. Have they established some degree of organization and accountability in the informants' direction and use? Have they implemented procedures to control the informants' actions? Have they set forth formal regulations regarding the informant program? If the answer to these questions is no, the agency and its officers may be at risk as negative concerns from civil libertarians, the courts, and the general public grow in fervor over the use of criminal informant sources.

When informants provide false or misleading information, use their status for their own purposes, or become involved in criminal activities unrelated to the investigation at hand, law enforcement often finds itself unprepared to deal with the inevitable fallout, which could range from public embarrassment to a civil suit and result in a damaged image within the community. Yet, whether they operate 1 informant or 100, when police agencies have a program that properly defines, documents, controls, and provides accountability for the actions of their informants, they continue to gain vital information while addressing the valid concerns of the public they serve.

Documentation

Agencies should implement a formal filing system to properly maintain all related documentation on each informant. The informant's identity should be concealed, and a simple numbering system within the files would sufficiently accomplish this. A commanding officer should issue these numbers, while authorizing the creation of an informal file. The authorization by the commanding officer to create this file also implies consent to the use of this person as an informant. Only officers operating the informants, their commanding officers, and the head of the department should know the identities of all of the informants. The case officer should place all of the information the informant supplies in the created informant file, while the main file on a particular crime should contain copies of reports or other investigative documents that apply to that case only.

Because informants occasionally report on more than one type of crime, and thus, other officers may need to access the information the informant provides, a central file repository becomes necessary for the inclusion of all information provided by an individual informant. Case officers should store these informant files in a secure location with controlled access. They should maintain items such as record checks on prospective informants, any criminal history information, and a photograph of the informant in this file. Also, a history of payments to informants may be maintained in the file. Because agency needs vary, officers should consider each item maintained in the file on an individual basis; however, the type of informant information maintained must remain consistent in each file. An agency can demonstrate thoroughness and deliberate judgment in its use of informants by maintaining a file of information on each informant, as well as one documenting the information each informant provides.

Control and Accountability

When informants have little or no formal direction as to the scope of permissible activities, problems can arise quickly. "Abuses by informants and law enforcement threaten the rights and safety of innocent people, as well as the integrity of the courts."(1) To avoid these abuses, agencies should give each informant a checklist of basic rules and regulations governing their conduct. Such rules could include:

* Informants will provide information to only one agency. It becomes difficult to manage informants if they become involved in activities for another law enforcement entity, especially if the other agency has no rules in place to govern informant conduct.

* Informants will not use illegal means to gather information. As an extension of the law enforcement agency, informants must understand that the agency will not tolerate violations of the law, and their status as informants will not exempt them from arrest and prosecution.

* Informants volunteer to assist the law enforcement agency. Informants have a choice whether to assist the agency or not, even in situations where they are trying to get their own criminal charges reduced or dismissed.

* Informants are not employees or undercover agents of the law enforcement agency. This remains an area of great concern and one where many agencies do not take steps to protect themselves. Those informants who act as law enforcement employees are usually police enthusiasts or become overzealous, which often motivates them to provide information in the first place.

* Informants will not participate in acts of violence or initiate plans to commit any criminal act.

Agencies can include numerous other rules, such as the requirement to report payments as income for tax purposes. They should notify the informant of these regulations at the earliest possible time and make a notation in the informant's file. All informants should sign or initial a form acknowledging receipt of these general regulations, which should remain consistent for each informant.

In short, informants should have an explicit understanding of what they may and may not do while working for the agency. If the informant becomes involved in a situation that violates any of the regulations imposed by the agency, attorneys may bring attention to it at a hearing or other legal proceeding. Having such a checklist effectively prevents informants from saying officers never explained what they could or could not do and thus transfers accountability from the agency to the informant.

Even though agencies should discourage informants from performing illegal acts, it often becomes necessary for informants to visit locations where criminal activity, such as the buying and selling of narcotics, takes place. This creates the possibility of informants being arrested, perhaps by another agency. The use of individuals on probation or parole can create additional problems because they would violate the terms and conditions of release by frequenting such locations or by being arrested. Having informants gather information in these locations or participate in illegal activities without the consent of their governing agencies can create problems for both the agencies and the informants.

To avoid having the informant's probation or parole status revoked, an agency first should obtain permission from the probationary organization, which also could avert a potential rift between the police agency and the probation/parole authorities. A senior member of the law enforcement agency should personally contact a counterpart from the probation or parole organization, who should be told, in general terms, the circumstances in which the informant will be used and when the investigation will end. After obtaining approval from the parole authority, the agency operating the informant should document it in the informant file.

Furthermore, accountability and oversight remain keywords in avoiding this situation. Supervisory personnel should conduct a careful review whenever a case warrants the use of an informant in or around illegal activities. During this review, the specific nature of the activity should be documented so that the reviewer can identify problem areas that the officer operating the informant may have overlooked. Oftentimes, officers involved in investigations tend naturally to focus on the suspect and how to gather sufficient evidence for a successful prosecution. This results in a tunnel-vision effect in which the officer endorses informant activities without regard to the existing peripheral factors that could impact the case later. Additionally, the review affixes accountability to the decision and demonstrates that the agency used careful, considered judgment in authorizing these types of activities.

In general, agencies should specify a period of time they will use individuals as informants. Moreover, agencies should limit the time informants can become involved in those activities, such as being in a location where drugs are packaged and sold, that normally could subject them to arrest and prosecution. Additionally, supervisors periodically must review these authorizations to determine if circumstances have changed. This review also stops the informant from engaging in illicit activities when the investigative need no longer exists. By granting limited and specific authority, law enforcement agencies can effectively control the activities of their informants. Additionally, this oversight prevents informants from saying they were gathering information for the police department should they get caught committing a crime.

Given the degree of public scrutiny a police agency can undergo, credibility remains an issue unless agencies have policies in place that clearly demonstrate control and accountability. These requests for criminal activity, and their subsequent review, should be maintained in the informant's file. Generally, an agency should retain informant files for a minimum of 5 years after the informant leaves the program.

Monetary Payments

Two law enforcement officers should witness all monetary payments to informants and document the transaction by obtaining a receipt from the informant. This prevents informants from later accusing officers of keeping part of the money and additionally provides accountability for allocation of informant funds. The receipt also provides a concise record of all payments to any informant, which attorneys may produce for discovery purposes should the informant testify.

Another issue over informant payments concerns taxable income. During testimony, defense attorneys frequently ask informants if they paid taxes on the money they received for their information. Because most people, including jurors, do not like to pay taxes but do so nonetheless, an informant who has not paid taxes on money received likely will not gamer a favorable reaction from jurors. More important, these issues almost always reflect unfavorably upon the law enforcement agency, especially if informants commit perjury and damage their credibility. Documenting payments demonstrates accountability and control on the part of the agency.

Accomplishments

The success of any program often depends on documenting its accomplishments. At the same time, tracking the effectiveness of informants produces a vivid record of an agency's intelligence base. Accurate record keeping can help agency administrators validate increases in budgetary expenditures for the informant program and demonstrate this program's essential link to the law enforcement mission.

Some examples of important accomplishments that administrators can document include:

* Number of investigations opened as a result of informant information;

* Number of suspects identified as a result of informant information;

* Number of times the agency used informant information in obtaining search warrants, wiretap affidavits, or arrest warrants;

* Dollar value of stolen property recovered as a result of informant information; and

* Number of convictions obtained as a result of informant information.

Administrators could tailor and maintain additional categories of statistical accomplishments to fit the needs of their agencies.

Conclusion

In today's world of litigation, criticism of police practices, and ever-changing public views regarding how effectively law enforcement agencies perform their functions, the continued use of informants, who gather vital information, remains critical. Agencies can encounter numerous different problems with the use of informants ranging from unauthorized criminal activity to a poorly documented payment. A formalization of their informant procedures, coupled with solid administrative controls, fixed accountability, documentation of operational facets, and a review process that considers all aspects involving informant use, law enforcement organizations can fortify themselves against criticism, civil suits, and perceptions of incompetence. Providing uniform guidelines for informants increases credibility for individual agencies while demonstrating law enforcement's concern with controlling both the use of informant sources and how they operate.

As an ongoing function of a democratic society, the methods by which law enforcement does its job no doubt will remain subject to continued scrutiny. Recognizing problems inherent in the use of informants and taking steps to minimize the elements of risk involved through these control and accountability factors will ultimately allow the continued use of this essential police tool.

Endnote 

1 Mark Curriden, "The Informant Trap: Secret Threat to Justice," The National Law Journal (February 20, 1995): 1.

Special Agent Hight teaches interviewing and interrogation, informant development, and media relations at the FBI Academy.