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'”).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)