When Is A Criminal Informant Considered A Witness Who Has To Testify?

People v. Monroy-Jaimes, 2019 IL App (2d) 160426 (January). Episode 586 (Duration 9:38)

Interesting use of an informant, how much of it was legal?

Confidential Informant

Police had an individual who was in custody for having possessed drugs with the intent to deliver.

This confidential informant identified a person named “Chilango,” who was later identified as the defendant, as someone who could provide cocaine.

The First Phone Call

At an officer’s direction, the informant placed a phone call to Chilango.

The officer was able to hear both sides of the conversation. Although the conversation was in Spanish, This officer spoke fluent Spanish. The informant asked Chilango for five ounces of cocaine. Chilango stated that he could provide only two ounces right away or five ounces later.

A short time later, the informant called Chilango again and stated that he could wait to get five ounces. They also discussed meeting at a BP gas station at 149 East Ogden Avenue in Hinsdale to conduct the drug sale.

Chilango stated that he would call when he had the cocaine.

The Second Phone Call

Later, the officer directed the informant to call Chilango again.

The officer heard both sides of the conversation. Chilango told the informant that he was waiting to get the cocaine but that they could meet at the gas station in about an hour. About a half-hour later, Chilango called the informant and to say that he was on the way to the gas station.

The Gas Station

At about 7 p.m., the informant received another call from Chilango, who asked for directions to the gas station.

Chilango called again for more directions a few minutes later.

Shortly after 7 p.m., the informant and the officer were parked with a view of the gas station. The informant told the officer that he saw Chilango arriving at the gas station in a Toyota Rav 4. Police observed the defendant pull into the gas station and park at a gas pump.

The officer identified the defendant in court as the person he saw in the vehicle at the gas station. The defendant had not committed any traffic violations when he pulled into the gas station. After parking, the defendant exited his vehicle and went into the gas station.

The Third Phone Call

The informant received another call from Chilango at about 7:10 p.m.

Chilango stated that he was at the gas station. At that point, the officer with the informant alerted surveillance officers, who went into the station and placed the defendant in custody. The officer then had the informant call Chilango’s phone number, and one of the surveillance officers answered the defendant’s phone.

At the police station, the officer overheard the defendant talking and recognized the defendant’s voice as the voice of Chilango.

Issue

The defendant argues that the police did not have probable cause to arrest him.

Probable Cause

A warrantless arrest is valid only if supported by probable cause.

Probable cause to arrest exists when the facts known to the police when they make the arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime. The existence of probable cause depends upon the totality of the circumstances at the time of the arrest. In addressing probable cause, we deal with probabilities.

They are the factual and practical considerations of everyday life on which reasonable and prudent people, not legal technicians, act.

Accordingly, whether probable cause exists depends upon commonsense considerations, and such a determination concerns the probability of criminal activity, rather than proof beyond a reasonable doubt. Indeed, probable cause does not require even a showing that the belief that the suspect had committed a crime was more likely true than false.

An Informant’s Tip

If the facts supplied in an informant’s tip are essential to a finding of probable cause, the tip must be reliable. People v. Johnson, 368 Ill. App. 3d 1073, 1081 (2006). An indication of the reliability of the tip is when the facts learned through police investigation independently verify a substantial part of the tip. People v. James, 118 Ill. 2d 214, 225 (1987).

The reliability of the informant is another fact to be considered. The reliability of the informant is enhanced if he is known to the police. However, if an informant is offered leniency in exchange for information that incriminates others, such information is clearly suspect.

Whether an informant has provided reliable information depends on the totality of the circumstances. 

Not A Confidential Informant

In the present case, the informant’s reliability was established under the totality of the circumstances.

The informant provided the tip in person while in police custody. This enhanced the reliability of the tip. A confidential informant is deemed more reliable than an anonymous informant. People v. Bryant, 389 Ill. App. 3d 500, 518-19 (2009); see also People v. Sanders, 2013 IL App (1st) 102696, ¶ 19 (recognizing the “difference between an anonymous tip and one from a known informant whose reputation can be ascertained and who can be held accountable if a tip turns out to be fabricated”).

Further, there was no evidence that the informant was given any specific inducement or promise in exchange for providing the information about the defendant and cooperating with the police.

Information Corroborated By The Officer

In addition, the informant’s reliability was enhanced by the fact that much of the information relied upon to establish probable cause was based on the officer’s personal observations during the phone calls between the informant and the defendant. People v. Blake, 266 Ill. App. 3d 232, 242 (1994) (noting that an informant’s reliability was enhanced because “much of the information relied on to establish probable cause was based on the police officer’s personal observations rather than mere anecdotal information supplied by the informant”).

Here, the officer listened in on all of the phone calls between the informant and the defendant. Much of the information provided by the informant was verified before the defendant’s arrest.

No Proven Track Record

The defendant argues that the informant was unreliable because there was no evidence that he had provided reliable information in the past. However, the lack of any such evidence does not change our conclusion. Prior reliable tips are simply one consideration in the totality of the circumstances as to whether the informant was reliable.

Analysis

This case involved an arranged purchase of narcotics of which the police had first-hand knowledge. This nullified much of the need for an informant with a proven track record.

In this case, unlike in the cases cited by the defense, the officer listened as the informant and the defendant set up a specific drug transaction, and, the informant was not anonymous and much of the information was corroborated prior to the defendant’s arrest. As there were other factors supporting the informant’s reliability, a track record of supplying reliable information was not critical.

The informant and the defendant reached a very specific agreement for the delivery of five ounces of cocaine, and the defendant arrived at the prearranged location. Further, there was no evidence that the informant was receiving any lessened punishment.

Holding

Under the totality of the circumstances, the police were aware of facts sufficient to lead a reasonably cautious person to believe that the defendant had committed a crime. 

Based on all the circumstances, there was a fair probability that the defendant had brought cocaine to the gas station.

The judgment of the circuit court of Du Page County is affirmed.

Informant’s Identity Was Not An Issue

As far as I can tell this informant was never identified in court and he did not testify. He clearly started making phone calls to prevent charges on himself. So there was a clear benefit to him. The only thing different here is that the police were there for all the phone calls, the negotiating and the plans for the transaction.

Interesting question is if this informant was a “transactional” witness? At one point, the informant tells the officer that he saw Chilango arriving at the gas station in a Toyota Rav 4. Was that admissible? This guy eventually confesses in the interrogation but I think these are interesting questions.

Transactional Informant

 The circumstances whereby disclosure of an unidentified informant is required are noted in Supreme Court Rule 412(j)(ii), which provides:

“Informants. Disclosure of an informant’s identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.” 

The standard is that disclosure required when an informant acted in the dual role of an informant-participant. A transactional informant has to be disclosed. See People v. Herron, 578 N.E.2d 1310, 218 Ill.App.3d 561 (September 1991). Where an informant’s knowledge is potentially significant on the issue of the defendant’s guilt or innocence, the defendant is prejudiced by the State’s denial of production.

On the other hand, where the unnamed informant was neither a participant nor a material witness to the essential elements of the offense, the informant is not a crucial witness and his identity can be withheld. In Illinois, the factors considered by courts under this balancing test are whether the requests for disclosure related to the fundamental question of guilt or innocence rather than to the preliminary issue of probable cause; whether the informant played an active role in the criminal occurrence as opposed to being a mere tipster; and whether it has been shown that the informant’s life or safety would likely be jeopardized by disclosure of his identity.

See also People v. Rose, 342 Ill.App.3d 203, 276 Ill.Dec. 754 (July 2003). Defendant has the burden to show that disclosure of the informant’s identity is necessary to prepare his defense. Deciding whether to require disclosure of this information involves balancing the public interest in protecting informants against a defendant’s right to prepare a defense. When informant is alleged to have participated in, witnessed, or helped to arrange the crime and disclosure will not jeopardize the informant’s safety, the privilege will generally give way to a defendant’s right to prepare his defense.

On the other hand, where the informant neither participated in nor witnessed the offense, the informant is not a crucial witness and his identity may be withheld.