Disclosing a Confidential Informant – Case of the Week #2

Kenneth Hill v. State of Florida, 2D14-2960, Released 3/9/2016


Welcome Back! This week we turn our attention to an issue that appears repeatedly in criminal cases:  under what circumstances must the State Attorney disclose the identity of a confidential informant who was used during the investigation of a case.

Confidential informants (or “CI’s”) are most commonly used in drug delivery and drug trafficking cases. Usually law enforcement agencies offer monetary compensation to informants in exchange for information and or arrests. Some law enforcement agencies have even gone as far as offering confidential informants a percentage of the revenues they bring in. These operations routinely allow the detectives (through overtime pay) and the CI’s to line their wallets with money. This scary scenario presents itself when confidential informants lure drug buyers from surrounding states and or countries into the South Florida community to purchase large quantities of drugs, which has happened on numerous occasions.

While money is a nice tool to turn normal folks into confidential informants there is another common method used to create informants. This is known as providing “substantial assistance”. Such a situation usually occurs when a defendant is charged with a crime or crimes that carry a lengthy prison sentence. Rather than accept a lengthy prison sentence, they decide to enter into substantial assistance agreement with the State Attorney’s office.  In such an agreement, the CI who is doing substantial assistance has motivation to provide information and set up arrests to reduce their own sentence.  This is commonly referred to as “working of their charges.”

Substantial assistance agreements are very one sided. If an informant violates their agreement, they are usually faced with a lengthy prison sentence. If they do not produce arrests and charges they will not be given any credit for the assistance that they have provided and will usually receive a lengthy prison sentence. 

Whether it be monetary gain or a reduction of their sentence, you can imagine the incentive an informant has to deliver arrests to the police. This temptation/pressure often has informants breaking the rules or fabricating evidence to help their own cause. 

A common way for a CI to break the rules is to go rogue. That means to not inform or request permission from law enforcement to enter into discussions with prospective drug dealers or purchasers. With a law enforcement “handler” not present, a CI can use whatever method they want to attempt to entice or pressure someone to engage in criminal activity. This is troubling and brings us to this week’s case of Mr. Hill v. State.

Mr. Hill was charged with purchasing cocaine. He filed a motion with the trial court to disclose the identity of the CI by alleging that the confidential informant (or “CI”) had repeatedly pressured him into making the purchase of cocaine and that he would not have made the purchase but for this pressure.  Essentially, Mr. Hill was raising an affirmative defense to the charged crime – that the government’s actions, through the CI, constituted entrapment.   Without a hearing, the trial court denied the motion and Mr. Hill was convicted.  The Second District disagreed and ruled that the trial court should have, at a minimum, held an “in camera” hearing. An “in camera” hearing is a hearing that is closed to the public because of the sensitive nature of the topic. Usually the hearing consists of the prosecutor and the confidential informant. The defendant and his/her lawyer are not allowed to attend but normally are allowed to submit questions to the Court. The questions asked at the “in camera” hearing are designed to inquire as to the extent of the confidential informant’s involvement in a particular case. 

Florida Rule of Criminal Procedure 3.220(g)(2) states when a confidential informant’s identity must be disclosed:

1.    When the informant’s identity is relevant and helpful to the defense of the accused, or
2.    When the informant’s identity is essential to a fair determination of the cause at issue.

Because this standard is quite vague, there are many cases in Florida that discuss when disclosure is required and when it is not, and the process for raising this issue can be quite complicated.  The defense attorney first files a motion supported by an affidavit of the defendant explaining why the CI’s disclosure is necessary.  Reasons that have been found sufficient are: the informant can help with a mis-identity defense, the informant has information relevant to an entrapment defense, the informant will be helpful to rebutting an allegation of constructive possession of narcotics, and many others.  If that motion raises a sufficient legal issue, then there is an in camera hearing where the judge, the CI, and the prosecutor discuss the CI’s involvement in the investigation in light of the issues raised by the defendant.  The judge then determines whether disclosure is required.  If the judge does rule in favor of the defendant, the State Attorney must disclose the CI.  Oftentimes, however, the State Attorney will substantially reduce their offer, reduce the charges, or even dismiss the case in order to protect the identity of the CI. 

If you or someone you know has been arrested and charged with a crime and a confidential informant has been used by the police during the investigation, you should reach out to an attorney such as myself who has on several occasions litigated confidential informant disclosure motions.

Thanks again for reading!
Matthew Glassman
Law Office of Mathew Glassman