Informants

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

Sufficiency of Information Provided

Adams v. Williams (1972), 407 U.S. 143 -- Though informer's tip may have been insufficient for a narcotics arrest or search warrant, it did left detention and frisk which revealed gun in defendant's waistband. Also see United States v. White (C.A.D.C. 1981), 648 F. 2d 29.
 
State v. Joseph (1971), 25 Ohio St. 2d 95 -- While hearsay information received from an informant may be the basis for the finding of probable cause supporting the issuance of a warrant, the magistrate must be sufficiently informed of circumstances indicating to the officer that the informant's information was reliable. Also see State v. Haynes (1971), 25 Ohio St. 2d 264; Jones v. United States (1960), 362 U.S. 257; Rugendorf v. United States (1964), 376 U.S. 528; United States v. Ventresca (1965), 380 U.S. 102.
 
State v. Rodriguez (1989), 64 Ohio App. 3d 183 -- A bare bones affidavit which provides no indication of how an informant came into the information related, the relevant time frame or of corroboration is insufficient to support issuance of the warrant and is not sufficient for invocation of the good faith rule. Also see State v. Graddy (1978), 55 Ohio St. 2d 132; State v. Fant (1977), 53 Ohio App. 3d 87.
 
State v. Gill (1977), 49 Ohio St. 2d 177 -- Syllabus: "A police officer's affidavit in support of a search warrant is not sufficient to show probable cause when that affidavit contains only information received from the personal observations of an unnamed confidential informant and the officer's avowal that the informant is 'reliable.'" Compare State v. Karr (1975), 44 Ohio St. 163 where the affidavit provided some corroboration.
 
State v. Amburgy (1997), 122 Ohio App. 3d 277 -- Investigative stop was not justified where informant said she thought defendant had picked up drugs at her house, but was only speculating, and report of the related M-4 trespass was not an offense observed by the officer, permitting warrantless arrest.
 
Beachwood v. Sims (1994), 98 Ohio App. 3d 9 -- Investigatory stop at defendant's home (garage) was justified by information from informant who called police from cellular phone and met responding officer at the premises.

Reliability; Corroboration

Florida v. J.L. (2000), 529 U.S. 513, 120 S.Ct. 1375 -- An anonymous tip that a person is carrying a gun is, without more, is not sufficient to left a police officer's stop and frisk of that person. There is no "firearm exception" to the general rule barring investigatory stops based on bare-bones anonymous tips. Mere physical description of the suspect does not provide sufficient corroboration. Applied: State v. Morrison (2000), 138 Ohio App. 3d 168; State v. Riley (2001), 141 Ohio App. 3d 409.
 
State v. Davis, 166 Ohio App. 3d 468, 2006-Ohio-1592 -- While the affidavit provided a basis for inferring a house was the source for a sale of cocaine, it was not clear what was known to the officer and what came from an informant, nor was there a basis establishing the reliability of the informant, such as being checked before and after the alleged transaction. An inference is only as strong as the predicate facts.
 
State v. Smith, 163 Ohio App. 3d 567, 2005-Ohio-5204 -- An anonymous tip forwarded through "Crimestoppers" suggested defendant was a drug dealer. Police staked out his car (while he happened to be in jail), and set up a controlled buy (which he didn't show up for), then pulled the car over, and detained defendant until a dope dog found the false Dr. Pepper can containing cocaine described by the anonymous informant. Evidence should have been suppressed as the tip did not contain information suggestive of future conduct, and the other aspects of the investigation did not provide a proper basis for the investigative detention. Also see Smith v. Leis, 165 Ohio App. 3d 581, 2006-Ohio-450 regarding the excessive bond set covering the time for the state to attempt an appeal to the Supreme Court.
 
State v. Florian (2000), 108 Ohio App. 3d 32 -- Motorist told officer that a car in the take out line of nearby restaurant had been all over the road. Informant was unknown to the officer, restaurant employees said they had seen nothing warranting detention, and the officer saw nothing himself. Motion to suppress granted.
 
State v. Kepford, Crawford App. No. 3-04-14, 2004-Ohio-6486 -- Officer made stop relying on a broadcast report. The officer saw nothing to confirm the accuracy of the report. The gas station clerk who called in the report of a drunken driver was not called at the suppression hearing. Nor was the dispatcher who received the call. Motion to suppress should have been granted.
 
State v. Wilson, 156 Ohio App. 3d 1, 2004-Ohio-144 -- Mistakenly applying the superseded Aguilar test, court concludes affidavit was sufficient, notwithstanding minimal information demonstrating the reliability of the confidential informant.
 
Hamilton v. Reasch (1994), 98 Ohio App. 814 -- When defendant's car passed by, a neighbor ran up and informed an officer on radar duty that the defendant did not have a license. Absent indicia neighbor was known to the officer as reliable, or of follow up police work, stop was not justified.
 
State v. Bradley (1995), 101 Ohio App. 3d 752 -- When predictions concerning the defendant's movements were borne out, officers were justified in believing other tips from informant.
 
State v. Zachery (1996), 114 Ohio App. 3d 725 -- Car stop based on two anonymous calls was not justified. Calls could have been from the same person with a malicious purpose. It was not clear that the disturbances related were the same or related. Nor was the basis of the caller's information clear.
 
State v. Brinegar (1993), 63 Ohio Misc. 2d 445 -- Anonymous tip about a pot party taking place in a dark-colored car behind Beano's Restaurant was not sufficient to left the defendant's arrest. See discussion of probity of various sorts of anonymous tips.
 
State v. Gaston (1996), 110 Ohio App. 3d 835 -- Information from informant was sufficiently corroborated by officer's observation to left stop and Terry frisk.
 
State v. Halahan (1995), 108 Ohio App. 3d 33 -- Anonymous McDonald's employee reported a drunk driver, but did not state basis for his suspicion. Investigation by police responding did not corroborate tip. Suppression should have been ordered. Also see State v. Rose (1997), 118 Ohio App. 3d 864 -- uncorroborated anonymous tip that there was an Uzi in the defendant's car.
 
State v. Shepherd (1997), 122 Ohio App. 3d 358 -- Officer followed car from area of suspected drug activity, and after stopping it because of a faulty muffler asked why the front passenger seat was unoccupied when there were two people in the back. Driver said seat had been vacated by someone negotiating a drug sale. Officer returned to location where he had first seen the car and immediately detained the defendant who matched the description given by the driver. Held that the Terry search of the defendant was invalid as the tip was by itself insufficient, and had not been adequately corroborated by follow up investigation.
 
State v. Berry (March 16, 1995), Franklin Co. App. No. 94APA08-1153, unreported (1995 Opinions 1039) -- Court suggests that corroboration is less of an issue when information comes from an average citizen who by happenstance finds himself finds himself in the position of a victim or a witness to a crime. Also see State v. Blagg (March 7, 1995), Franklin Co. App. No. 94APC07-1074, unreported (1995 Opinions 802). (Tip from clerk at fast food drive through window included considerable detail.)

Broadcast and Secondhand Information

Newcomerstown v. Ungurean, 146 Ohio App. 3d 409, 2001-Ohio-1754 -- Truckstop waitress reported seeing a beer bottle and a shot glass on the trunk lid of a Honda, and that the car's four occupants appeared intoxicated when they were in the restaurant. Information was broadcast to an officer who stopped the car without observing any offense. The tip was not anonymous since a name was given to dispatcher, though not passed on to officer. A greater degree of reliability is typically afforded informants who provide a name. Information from the waitress gave rise to a reasonable suspicion the driver was intoxicated.

State v. Bryant (2000), 138 Ohio App. 3d 343 -- Kentucky officers radioed they were pursuing a fleeing motorist across an Ohio River bridge, but did not state the reason why they wished to make a stop. Ohio officer responded at the site where the out of state officers finally stopped the car. Majority finds the broadcast justified the stop. Dissent finds failure to convey the underling reasons for making a stop makes that conclusion contrary to Maumee v. Weisner (1999), 87 Ohio St. 3d 295.

United States v. Hensley (1985), 469 U.S. 604 -- Evidence uncovered in the course of an investigative stop based on a flyer received from another police department is admissible if the issuing department had sufficient information to left the stop and whether, based on an objective reading of the flyer, the officers actually making the stop could defensibly act in reliance on the flyer.

Maumee v. Weisner (1999), 87 Ohio St. 3d 295 -- Syllabus: (1) Where an officer making an investigative stop relies solely upon a dispatch, the state must demonstrate at a suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity. (2) A telephone tip can, by itself, create a reasonable suspicion lefting an investigatory stop where the tip has sufficient indicia of reliability." See dissent, calling for corroboration or observation by officer making the stop when information is received in the form of an unverified report of erratic driving.

State v. Ramey (1998), 129 Ohio App. 3d 409 -- Citizen-informant flagged down a cruiser and related suspicion driver of a particular car was DUI. Information was relayed by radio, and a car matching the description was stopped for investigation. Since the citizen made no effort to conceal identity, information was presumptively reliable.

 

Disclosure of Identity

State v. Deltoro, 165 Ohio App. 3d 750, 2006-Ohio-1280 -- Defense sought identity of informant citing need to use that individual to authenticate exculpatory material on a tape. State had resisted earlier efforts to obtain the identity of the informant. The court granted a renewed motion for disclosure, and promptly jailed the prosecutor for contempt when he refused. Court erred by proceeding without allowing time for a written response or request for a hearing.
 
State v. Wooldridge, Summit App. No. 21255, 2003-Ohio-1481 -- Rather than obey an order to disclose the identity of a confidential informant, the state moved to dismiss the indictment without prejudice. The state may not appeal from the order granting this dismissal, which nullified the claims brought against the accused and returned toe parties to the same position as if the state had never initiated the prosecution.
 
Rovario v. United States (1957), 353 U.S. 53 -- The determination whether to disclose the identity of a confidential informant on request by the defendant rests on a balancing of the public interest in maintaining the flow of information to the government and the individual's right to prepare his defense. Where disclosure is relevant and helpful to the defense or essential to receiving a fair trial, disclosure should be ordered.
 
McCray v. Illinois (1967), 386 U.S. 300 -- In the context of a pretrial hearing on a motion to suppress where the issue is the existence of probable cause for either a search or arrest, disclosure of the identity of an informant is not required where there is ample evidence that the informer was known to the officers to be reliable and they acted in good faith upon the information he supplied. Also see United States v. Green (C.A.D.C. 1981), 670 F. 2d 1148, 1154-1155 ("informer's privilege).
 
State v. Williams (1983), 4 Ohio St. 3d 74 -- Syllabus: "The identity of an informant must be revealed to a criminal defendant when the testimony of the informant is vital to establishing an element of the crime or would be helpful or beneficial to the accused in preparing or making a defense to criminal charges."
 
State v. Phillips (1971), 27 Ohio St. 2d 294 -- Syllabus: "Where an informer, acting on behalf of the police, purchases narcotics with marked money, some of which is later found in the possession of an accused, and the informer does not present the narcotics purchased to police, and there is no evidence that appellant was present at the time of sale, and the testimony of the informer is relevant, helpful, and beneficial to the accused in making a defense to, or is essential to a fair trial on, a charge of possession of narcotics for sale in violation of R.C. 3719.20(A), the privilege to withhold the disclosure of the informant's identity is inapplicable and the identity of the informer must be disclosed or the defendant discharged as to such charge."
 
State v. Butler (1984), 9 Ohio St. 3d 156 -- Disclosure of identity of informant is not required where the defendant, claiming entrapment, has failed to how the informant's testimony would have related to that defense. Compare State, ex rel. Leis, v. Kraft (1984), 10 Ohio St. 3d 38.
 
State v. Deleon (1999), 131 Ohio App. 3d 632 -- Informant told the police that defendant had admitted the offense. Based on this tip, a photo array was prepared, and identifications were made by eyewitnesses. State was erroneously ordered to disclose identity of the informant, as it did not intend to call that person as a witness, nothing in the record suggested the informant witnessed or participated in the offense, and the defense otherwise failed to show how the informant might be useful.
 
State v. Beck (1963), 175 Ohio St. 73 -- Disclosure of the identity of an informant is not required absent a showing disclosure would be of real value to the defense and not merely a matter of testing informer's credibility and reliability.
 
State v. Feltner (1993), 87 Ohio App. 3d 279 -- (1) Identity of informant was properly disclosed where defendant claimed entrapment based on inducement by an informant who was actively involved at all stages of the transaction and was present at its consummation. (2) An evidentiary hearing was not required if need for disclosure was adequately advanced in the defendant's motion and memorandum, particularly since a hearing was not requested by the prosecution. (3) Where the state fails to advance why identity should not be disclosed, there is no basis for finding a failure to apply the balancing test of Rovario v. United States (1957), 353 U.S. 53.
 
State v. Williams (1994), 97 Ohio App. 3d 289 -- Trial court did not err in denying defense request that the identity of an informant be disclosed for purposes of a suppression hearing. Claim was that the informant had provided false information which led to issuance of search warrant. Court draws a distinction between right to confrontation at a pretrial hearing and at trial, and faults the defense for not coming forward with argument why identity of the informant was needed to proceed on the motion to suppress, which was withdrawn after court refused to order disclosure.
 
State v. Owens (1998), 127 Ohio App. 3d 65 -- Defendant unsuccessfully sought name of confidential informant before trial, but in his opening statement the prosecutor identified the informant. Court overruled defense motion for a dismissal with prejudice, then sua sponte declared a mistrial over defense objection. Applying State v. Glover (1988), 35 Ohio St. 3d 18, reversed. Prosecutor's misconduct goaded the court into declaring a mistrial. Furthermore, mistrial was an abuse of discretion.
 
State v. Hancock (1990), 67 Ohio App. 3d 328 -- Trial court did not abuse its discretion by dismissing indictment after prosecutor failed to obey order that identity of informant be disclosed. Prosecutor was unable to do so because police refused to tell him who the informant was.
 
State v. Roe (1971), 26 Ohio St. 2d 243 -- Syllabus: "The privilege to withhold from disclosure the identity of an informer may be invoked by a police officer in the course of a grand jury proceeding where the inquiry is not directed to the determination of the possible guilt of a specified person, but rather a general quest as to who might have committed a crime, and a police officer invoking the privilege in such circumstances may not be held in contempt."
 
State v. Port Clinton Fisheries (1984), 12 Ohio St. 3d 114 -- Syllabus: "A trial court order compelling the government to disclose the identity of a confidential informant is a final appealable order."

Snitches

Kansas v. Ventris (2009), 129 S.Ct. 1841 – Police planted a snitch in the defendant‘s cell. Though the admissions he heard were inadmissible under the Sixth Amendment during the state‘s case in chief, they were admissible in rebuttal. Court looks to the nature of the constitutional guarantee violated. A coerced confession is a denial of due process and is inadmissible both during the state‘s case in chief and in rebuttal, but for the Sixth Amendment violation here at issue a balance must be struck with the need to prevent perjury.
 
State v. Roberts (2001), 141 Ohio App. 3d 578 -- Student who agreed to be a snitch won a new trial after state called him to testify, which it was claimed ratified the initial agreement. Reversed as the motion for a new trial was not timely.
 
Massiah v. United States (1964), 377 U.S. 201 -- Surreptitious interrogation of defendant during continuing investigation following indictment, at a time when defendant was represented by counsel, was a denial of right to counsel under the Sixth Amendment.
 
Illinois v. Perkins (1990), 496 U.S. 292 -- Massiah does not apply where no charges have been filed and undercover officer is placed in cellblock to seek incriminating information. Also see Hoffa v. United States (1966), 385 U.S. 293.
 
United States v. Henry (1980), 447 U.S. 264 -- Statements made to inmate in same cell block inadmissible when paid informant had been contacted by government agents and asked to be alert to incriminating statements made by federal prisoners. Compare Thomas v. Cox (4th Cir. 1983), 708 F. 2d 132 (contact with authorities initiated by snitch); Kuhlmann v. Wilson (1986), 477 U.S. 436, 456-461.
 
State v. Adkins (1992), 80 Ohio App. 3d 211, 219-220 -- Undercover officer working with an informant in a bar by chance overheard defendant make incriminating statements to an informant concerning pending charges. No Massiah violation found.

Other Issues

State v. Johnson, 185Ohio App. 3d 654, 2010-Ohio-315 – At the plea hearing defense counsel revealed the confidential informant in the case was a former client. Defendant waived the conflict and the plea was accepted. Reversed on appeal. Trial court should have held a full hearing on the nature of the conflict. Opinion doesn’t detail matters that might compel separate representation.
 
State v. Smith, 162 Ohio App. 3d 208, 2005-Ohio-3579 -- Applying Crawford v. Washington, admission of a taped conversation between the defendant and an informant in furtherance of a drug transaction did not violate the right to confrontation. The informant did not testify. His end of the taped conversation was not admitted for the truth of the matter asserted. It only provided the context for the defendant's statements received as admissions.
 
State v. Thompson (1993), 87 Ohio App. 3d 570, 579-580 -- Defendant sought to introduce statements made by confidential informant as admissions of a party-opponent citing R.C. 3719.14 which allows informants to possess controlled substances without being subject to prosecution. Court holds statute does not make informant an employee of the police department, but opinion seemingly leaves open opposite result if informant is shown to be paid by the police.
 
State v. Calhoun (1981), 2 Ohio App. 3d 472, 474 -- Missing witness instruction not required when informant could have been called as a witness by either party.
 

Publishing Information

Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
Contents may not be duplicated without express permission.

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