Sources of Information Establishing Probable Cause:

Other Police Officers

Other Police Officers:  Suspect information or other criminal activity information received from other peace officers, either verbally, at pre-shift briefings, from department-originated notices, etc., or when communicated via radio through the police dispatcher, is considered reliable and generally establishes probable cause to arrest or search by itself.  (People v. Hill (1974) 12 Cal.3^rd 731, 761; People v. Ramirez (1997) 59 Cal.App.4^th 1548.)

This is sometimes referred to as having received information through "official channels," which refers to when it comes from any law enforcement source.  (People v. Lara (1967) 67 Cal.2^nd 365, 371.)  Examples:

• Police radio broadcasts.
• Pre-shift briefings.
• "A.P.B.s" (i.e., an "All Points Bulletin") and similar law enforcement generated memos.

But:   Eventually, law enforcement may be required in court to trace the information back to its source in order to disprove an accusation that the information establishing probable cause was "manufactured in the police station;" i.e., that it was the result of speculation or other unreliable source.  (People v. Orozco (1981) 114 Cal.App.3^rd 435.)

This is sometimes referred to as the "Harvey/Madden rule," based upon authority in People v. Harvey (1958) 156 Cal.App.2^nd 516, and People v. Madden (1970) 2 Cal.3^rd 1017, or an "Ojeda motion," based upon Ojeda v. Superior Court (1970) 12 Cal.App.3^rd 909.)

Citizen Informants

Citizen Informants:  Private persons motivated to provide law enforcement with information of criminal wrongdoing purely through a sense of good citizenship, without expecting any benefit or reward in return.

Information from a "citizen informant" establishes probable cause by itself, at least as to facts within the informant's personal knowledge, absent known or suspected facts or circumstances that cast doubt upon the reliability of the information provided.  (People v. Ramey (1976) 16 Cal.3^rd 263, 269.)

"It may . . . be stated as a general proposition that private citizens who are witnesses to or victims of a criminal act, absent some circumstances that would cast doubt upon their information, should be considered reliable."  (People v. Ramey, supra, at pp. 268-269; see also People v. Duncan (1973) 9 Cal.3^rd 218; and People v. Hogan (1969) 71 Cal.2^nd 888, 890.)

The victim of a crime will usually qualify.  (People v. Griffin (1967) 250 Cal.App.2^nd 545, 550.)

"We have distinguished between those informants who ‘are often criminally disposed or implicated, and supply their "tips" . . . in secret, and for pecuniary or other personal gain' and victims or chance witnesses of crime who ‘volunteer their information fortuitously, openly, and through motives of good citizenship.' [Citation.]  O. and J. (juvenile victims in this case) neither concealed their identity to shield themselves from liability for false statements nor offered information for any ulterior or pecuniary motive. . . .  The trial court correctly deemed the children presumptively reliable."  (Humphrey v. Appellate Division of the Superior Court  (2002) 29 Cal.4^th 569, 576.)

But see Gillan vs. City of San Marino (2007) 147 Cal.App.4^th 1033, 1045; where the alleged victim of a crime held to be not credible.  "Typically, information from a victim or a witness to a crime, "absent some circumstance that would cast doubt upon their information," is enough to establish probable cause.  Such a victim or witness is generally considered to be reliable.  "Information provided by a crime victim or chance witness alone can establish probable cause if the information is sufficiently specific to cause a reasonable person to believe that a crime was committed and that the named suspect was the perpetrator. [Citation.]  ‘Neither a previous demonstration of reliability nor subsequent corroboration is ordinarily necessary when witnesses to or victims of criminal activities report their observations in detail to the authorities.' [Citation]"

The identity of the citizen informant need not always be disclosed, but sufficient facts for the magistrate to conclude that the informant does so qualify as a citizen informant must be made available.   (People v. Lombera (1989) 210 Cal.App.3^rd 29, 32.)

Some involvement with criminal activity does not preclude one from being classified as a "citizen informant."  (People v. Schulle (1975) 51 Cal.App.3^rd 809.)  But the informant's motivation for providing the information must be examined.

Reliable (“Tested”) Informants

Reliable ("Tested") Informants:  Informants who provide information with the expectation of some favor or personal gain from law enforcement in return, when he/she is known to have provided law enforcement with truthful information concerning criminal activity in the past. 

The presumption is, absent some reason to disbelieve him, that such an informant is reliable.  (See People v. Prewitt (1959) 52 Cal.2^nd 330, 334-337; People v. Metzger (1971) 22 Cal.App.3^rd 338, 345; People v. Dumas (1973) 9 Cal.3^rd 871; People v. McFadin (1982) 127 Cal.App.3^rd 751.)

Such an informant commonly has a criminal record, pending criminal case, and/or some present involvement in criminal activity.

The expected favor or personal gain is sometimes referred to as a "benefit."  A "benefit" is defined as "any consideration or advantage the informant was offered, promised, or received in exchange for the information provided."  Such a benefit includes, but is not necessarily limited to:

• Monetary payments of any kind, including, but not limited to, money, room and board, or use of an automobile.
• Leniency shown in arrest or booking, requesting appropriate bail, or contesting the source of the bail per P.C. § 1275.
• Leniency shown in filing appropriate charges or enhancements.
• Delay in arraignment or other court dates.
• Reduction of charges, period of custody or other condition of probation or sentence, including favorable input by a prosecutor or law enforcement officer.
• Relocation of the informant or the informant's family.
• Use immunity or transactional immunity, formal or informal.
• Favorable action with other governmental agencies, civil courts, or private interests (such as employers).

(Source:  San Diego District Attorney "Cooperating Individual and Immunity" Manual, 1997, Chapter 1, p.3.)

Such a person has a proven track record of giving reliable information in the past.  A single prior incident may establish reliability (See People v. Gray (1976) 63 Cal.App.3^rd 282, 288.), although in such a case, some corroboration of the informant's information may be necessary.

Having given some bad information in the past does not necessarily disqualify an informant from being labeled "reliable."  (People v. Barger (1974) 40 Cal.App.3^rd 662; People v. Murphy (1974) 42 Cal.App.3^rd 81.)  However, facts showing why in this case the informant is to be believed may be necessary, or other corroboration of his/her information.

Note:  In practice, law enforcement most often seeks to corroborate even a reliable informant's information just because, being motivated by personal gain, such a person's credibility is almost always something that should be substantiated before acting upon his or her information.

Unreliable (“Untested”) Informants

Unreliable ("Untested") Informants:  A person who provides information with the expectation of receiving some favor or personal gain in return (i.e., a "benefit"), but either without the prior track record of having given truthful information, has provided untruthful information in the past, or as of yet, has not been used before as an informant.

Information from an untested or unreliable informant is not presumed to be credible in the absence of corroborating information.  Such an individual must be corroborated before he/she can be used to establish probable cause.  (People v. Superior Court [Johnson] (1972) 6 Cal.3^rd 704, 712; People v. Love (1985) 168 Cal.App.3^rd 104.)

However, it has been held that two untested informants, acting independently, may be sufficient to corroborate each other.  (People v. Balassy (1973) 30 Cal.App.3^rd 614, 621.)

See "Corroboration," below, under "Anonymous Informants."

Anonymous Informants

Anonymous Informants:  One who provides information to law enforcement (often via a telephone call) while refusing to identify him or herself.

Because it is impossible to determine the motivations or credibility of an anonymous informant, such information is not considered reliable by itself.  (Wilson v. Superior Court (1956) 46 Cal.2^nd 291, 294.)

Anonymous information does not even establish a "reasonable suspicion" of criminal activity (Alabama v. White (1990) 496 U.S. 325, 331 [110 L.Ed.2^nd 301, 309; Florida v. J.L. (2000) 529 U.S. 266 [146 L.Ed.2^nd 254]; United States v. Morales (9^th Cir. 2001) 252 F.3^rd 1070.) unless corroborated by the circumstances. (People v. Ramirez (1996) 41 Cal.App.4^th 1608.)

Anonymous information from at least two separate sources might, depending upon the circumstances, establish probable cause.  (People v. Coulombe (2001) 86 Cal.App.4^th 52.)

Corroboration:  "Because unverified information from an untested or unreliable informant is ordinarily unreliable, it does not establish probable cause unless it is ‘corroborated in essential respects by other facts, sources or circumstances.'  [Citations.]  For corroboration to be adequate, it must pertain to the alleged criminal activity; accuracy of information regarding the suspect generally is insufficient.  [Citation.]  Courts take a dim view of the significance of ‘pedestrian facts' such as a suspect's physical description, his residence and his vehicles.  [Citation.]  However, the corroboration is sufficient if police investigation has uncovered probative indications of criminal activity along the lines suggested by the informant.  [Citation.]  Even observations of seemingly innocent activity provide sufficient corroboration if the anonymous tip casts the activity in a suspicious light.  [Citations.]"  (People v. Johnson (1990) 220 Cal.App.3^rd 742, 749; People v. Gotfried (2003) 107 Cal.App.4^th 254.)

Corroboration comes in many forms.  For example:

In a narcotics case, using the informant, a different informant, or an undercover law enforcement officer, to attempt to make a purchase of narcotics while under strict surveillance (i.e., a "controlled buy"), is a common method of corroborating the informant's information.

Surveillance, records checks, and other forms of more traditional investigative work help to corroborate an informant's information.

Statements from an informant which are "against the informant's own ‘penal interest' (i.e., potentially subjecting the informant to criminal liability)" may be sufficient corroboration.  (People v. Mardian (1975) 47 Cal.App.3^rd 16, 33; Ming v. Superior Court (1970) 13 Cal.App.3^rd 206, 214; United States v. Todhunter (9^th Cir. 2002) 297 F.3^rd 886, 890.)

Anonymous information corroborated by accurately predicting a suspect's future behavior may itself also establish probable cause.  (See Illinois v. Gates (1983) 462 U.S. 213 [76 L.Ed.2^nd 527].)

See also; "Anonymous Information," under "Detentions," above.

Confidential Informants:

Problem

Problem:  Whether classified as a "Citizen Informant," a "Tested Informant," or an "Untested Informant," law enforcement may seek to keep the informant's identity confidential.  This is typically necessitated by the danger inherent in the practice of informing on criminal suspects.

Rule

Rule:  An informant's identity, if the informant is used properly and when the case is charged appropriately (i.e., charging offenses to which the informant is not a percipient witness, only), may often be kept confidential.  (See E.C. §§ 1041, 1042(b), (c) and (d))

"It is well settled that California does not require disclosure of the identity of an informant who has supplied probable cause for the issuance of a search warrant where disclosure is sought merely to aid in attacking probable cause."  (Theodore v. Superior Court (1972) 8 Cal.3^rd 77, 88.)

Restrictions

Restrictions:  It is only when the court determines that there is a "reasonable possibility" that the informant can give evidence on the issue of guilt which might result in defendant's exoneration, that the informant's identity will have to be revealed.  (Honore v. Superior Court (1969) 70 Cal.2^nd 162, 168.)

Revealing an Informant’s Identity

Revealing the Informant's Identity:  In practice, an informant's identity will have to be revealed only:

• When he or she was an eyewitness to (i.e., a "percipient witness"), or an actual participant in, the crime or crimes charged; or
• When he or she might otherwise be able to provide evidence favorable to the defendant. (People v. Goliday (1963) 8 Cal.3^rd 771, 778-779.)

Procedure:  In order to avoid having to reveal an informant's identity, we use his or her information only to establish probable cause.  A search warrant is issued based upon that probable cause.  Then, the suspect is charged only with the offenses revealed upon the search and/or arrest of the suspect; matters to which the informant is not a witness.

Motions to Reveal the Identity of an Informant:  

It is the burden on the defendant to make a sufficient showing that the unnamed informer does in fact have information which would be material to the defendant's innocence.  (Price v. Superior Court (1970) 1 Cal.3^rd 836, 843.)

In order to discharge his burden of proving the informant is a material witness, the defendant need not show what the informant would testify to, nor even that the informer could give testimony favorable to him.  (Ibid.)

However, bare speculation or unsupported conclusions that the informant is a "material witness" are insufficient to discharge a defendant's burden.  The defendant must produce evidence or a declaration articulating the theory of his defense or demonstrating in what manner he would be benefited by disclosure of the informant's name.  (People v. McCoy (1970) 13 Cal.App.3^rd 6, 12-13; People v. Thomas (1970) 12 Cal.App.3^rd 1102, 1112-1113.)

A defense attorney's affidavit "on information and belief" is, as a matter of law, an insufficient factual showing, and is therefore not sufficient justification for divulging an informant's identity.  (People v. Oppel (1990) 222 Cal.App.3^rd 1146, 1153.)

When the informant "merely pointed the finger of suspicion at the defendant," disclosure of the informant's identity is not required.  (People v. Wilks (1978) 21 Cal.3^rd 460, 469; People v. McCoy, supra, at p. 13.)

Luttenberger Motions

"Luttenberger" Motions:

Upon a "substantial preliminary showing" of the need for discovery made by the defense, the court may order that the prosecution provide records and other background information concerning a confidential informant.  (People v. Luttenberger (1990) 50 Cal.3^rd 1.)

However, in order to justify an in camera hearing on this issue, at which the court must review the informant's history and other relevant information related to credibility, the defendant need only raise a "reasonable doubt" concerning the informant's veracity.  (People v. Estrada (2003) 105 Cal.App.4^th 783.)

If, after such an in camera review, the court finds the necessary "substantial preliminary showing" of information that tends to contradict material representations made in the affidavit, or constitutes material omissions from it, the court should then order the disclosure of the documents to the defendant.  Based upon this information, a "Franks hearing, per Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2^nd 667], may be appropriate.  (See above)

The purpose is to challenge the reliability of the information obtained from a confidential informant, without necessarily revealing the informant's identity.

If the defense can meet its burden of showing some need for the information and some proof that there is something of some substance in existence (beyond merely speculating that some adverse information exists), the court should inspect the documents in camera, deleting any reference to the informant's identity before providing the information to the defense.  (People v. Luttenberger, supra.)

The danger is in insuring that the court does not inadvertently give away too much information, affording the defense the opportunity to figure out who the informant is. 

An Informant Sworn Before A Magistrate; A Skelton Warrant

An Informant Sworn Before a Magistrate; a "Skelton Warrant:"

If an informant can give a "factual" (as opposed to a "conclusionary") description of some on-going criminal activity, but does not fit within any of the preceding categories of reliable informants, and his information cannot be corroborated, he may nevertheless be deemed reliable if he personally testifies and swears to the truth of his information before the issuing magistrate.  (Skelton v. Superior Court (1969) 1 Cal.3^rd 144.)

Sometimes referred to as a "Skelton warrant," where the magistrate is allowed to observe the informant's demeanor and appearance, the magistrate can evaluate his credibility just as with any other witness.

The informant's transcribed testimony (and the tape of that testimony) before the magistrate becomes the search warrant affidavit.