Due Process and Confidential Informants

A confidential informant (also known as a 'CI') is usually a citizen that works for the police to investigate criminal activity. Law enforcement frequently will use a confidential informant to conduct illegal drug transactions. Both Florida and Federal law require adequate safeguards before they are not permitted to conduct investigations.

The Florida Supreme Court has observed, "it is a general principle of law that prohibits prosecutions brought about by methods offending one's sense of justice." Munoz v. State, 629 So. 2d 90, 98 (Fla. 1993). Florida's due process clause applies to targets of a criminal investigation. Accordingly, governmental misconduct which violates the constitutional due process right of a defendant may result in the dismissal of criminal charges. See State v. Glosson, 462 So. 2d 1082, 1085 (Fla. 1985).

In Glosson, for example, the Florida Supreme Court found a due process violation when the State hired an informant to set up drug deals and paid the informant on a contingency basis. In so holding, the court made it clear that it was impermissible to create a financial stake or incentive for confidential informants.

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A confidential informant with too much discretion may also violate due process. In Soohoo v. State, 737 So. 2d 1108 (Fla. 4th DCA 1999), a confidential informant reported to a supervising FBI agent, but was given the autonomy to arrange the details of the transaction. The agent failed to conduct an independent investigation of the target, did not closely monitor the informant, and was unaware of the details of the setup. As a result, the informant effectively agreed to a "consignment arrangement" for the sale of drugs, and the court could found that this offended "canons of decency and fairness."

In State v. Anders, 596 So. 2d 463 (Fla. 4th DCA 1992), the court took issue with the wide latitude (including the creation of an elaborate story, the freedom to set up an easiest way to set up the target, and choosing the amount of drugs for the fictitious transaction) given to the informant and the lack of guidance from the police. The police did not conduct a background investigation of the target, instruct the CI to avoid entrapment, or surveil the interactions between the informant and the suspects. The court concluded the informant engaged in improper means to induce Anders and that there was no specific ongoing criminal activity.

The use of confidential informants is widespread and every criminal defense attorney should be aware of the law governing their conduct.

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