VT: A CI who is already in trouble with the police has an interest in truthfulness, and thus is likely more reliable

Statements against penal interest by CIs that are already in trouble are logically going to hurt the CI more if they turn out to be false, so the CI has an interest in being truthful. Reliability may thus be inferred because of the consequences of falsity, and probable cause was shown. As to a Franks challenge, the trial court assumed the falsity of some assertions, disregarded them, and retested the showing finding probable cause. That finding is also affirmed. State v. Finkle, 2018 VT 111 (Oct. 19, 2018):

¶ 21. More importantly, “one who knows the police are already in a position to charge him with a serious crime will not lightly undertake to divert the police down blind alleys.” Id. at 169-70 (refuting reasoning that criminal caught “red-handed” had nothing to lose by providing self-incriminating information); see Arrington, 2010 VT 87, ¶ 23 (finding that informant’s naming of her source for drugs was reliable because “it would have become clear very quickly if her information was inaccurate, and the disclosure of the inaccuracy would have hurt the informant’s position rather than helping it”). In such circumstances, the requisite indicia of reliability may result more from the threat of police retaliation should the information prove to be false than the admission of criminal conduct, LaFave, supra, § 3.3(c), at 171, but that does not detract from the information’s reliability.

¶ 22. For similar reasons, we are not persuaded by defendant’s assertion that the CI’s plain intent was to shift the focus of the drug investigation onto another person. Officer Tiersch’s affidavit explicitly stated that the CI was “not providing this information in order to have consideration on pending charges.” As noted, the CI arguably had more to lose by providing false information to police rather than remaining silent about the source of his heroin.

¶ 23. Moreover, although the CI was not named in the affidavit and was not a citizen-informant to whom we would afford a presumption of veracity, Goldberg, 2005 VT 41, ¶ 15 (information provided by named citizen-informant unconnected with police is presumed reliable), neither was he an anonymous informant or “a protected police stool pigeon … whose indiscretions are tolerated by the police on a continuing basis in exchange for information and leads given by him from time to time.” LaFave, supra, § 3.3(c), at 165 (quotation omitted); see United States v.Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991) (“[A] face-to-face informant must, as a general matter, be thought more reliable than an anonymous telephone tipster, for the former runs the greater risk that he may be held accountable if his information proves false.”); see also Arrington, 2010 VT 87, ¶¶ 19-20 (comparing reliability of types of informants). Under these particular circumstances the superior court did not err in finding that the known informant’s statements as to where he obtained his heroin after police responded to his heroin overdose were made against his penal interests and thus reliable. See LaFave, supra, § 3.3(c), at 162-63 (quoting Dutton v. Evans, 400 U.S. 74, 89 (1970), for proposition that “a person’s statement ‘against his penal interest’ carries with it ‘indicia of reliability’ if it may also be said that the statement was made ‘under circumstances when he would have no reason to lie'”).

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