Confidential Informants, Motions to Reveal Identity, and Discovery: Part VI, Motions to Suppress and the “Two Officer Rule”

For the final installment of this series on confidential informants, motions to reveal identity, and discovery, we will look at a unique statute in North Carolina concerning when the identity of a confidential informant (CI) must be revealed: G.S. 15A-978(b). This statute only applies to motions to suppress, rather than trial. Recall back to Part I of this series, which addressed Roviaro v. U.S., 353 U.S. 53 (1957). Roviaro established the basic factors to consider when deciding whether the State must disclose the identity of the CI to the defendant to ensure a fair trial. Another U.S. Supreme Court case decided ten years later, however, McCray v. State of Ill., 386 U.S. 300 (1967), addressed the separate but related question of when the defendant is entitled to learn the CI’s identity to have a fair opportunity to litigate a motion to suppress.

At a motion to suppress, the considerations are somewhat different from trial. The last several posts addressed the question of when testimony from the CI is material in determining whether or not the defendant is guilty. In contrast, the question at the motion to suppress stage is not the guilt or innocence of the defendant. The question in CI cases is usually whether a search or seizure violated the defendant’s Fourth Amendment rights. The issues to be decided may be whether law enforcement had good reason to rely on information provided by the CI, whether law enforcement corroborated the information, or whether the officers are being truthful about their interactions with the CI. G.S. 15A-978(b) addresses a related, but narrow question: can we rely on the officer’s assertion that the CI exists?

What does the statute say?

This post will focus on subsection (b), but subsection (a) provides important context. 15A-978(a) deals with how the defendant can challenge the truthfulness of the testimony that led to the issuance of a search warrant. The landmark case on attacking the truthfulness of an officer who applied for a search warrant is Franks v. Delaware, 438 U.S. 154 (1978). Franks established that a defendant is entitled to a hearing on whether a search warrant affidavit contains a false statement, but only after making a “substantial preliminary showing” that the affiant made the false statement knowingly and intentionally, or with reckless disregard for the truth. G.S. 15A-978(a) defines “truthful testimony” as “testimony which reports in good faith the circumstances relied on to establish probable cause.” In other words, if an officer receives false information from a CI but includes the information in a search warrant affidavit in good faith, the officer’s testimony should still be considered “truthful.” The Official Commentary to the statute notes that there was some concern that the rule would “immuniz[e]” the hearsay from the CI and leave officers with “everything to lose and nothing to gain from producing the informants directly to the magistrate.” See Official Commentary to G.S. 15A-978. However, lawmakers apparently concluded that the process of applying for a search warrant before a neutral judicial official would ensure adequate vetting of the CI’s information. See id.

Crucially, subsection (b), which addresses when the defendant is entitled to the CI’s identity, only comes into play in situations where officers do not have a warrant. G.S. 15A-978(b) provides that where the defendant is challenging the truthfulness of the testimony establishing probable cause in a hearing on a motion to suppress, the defendant will be entitled to the CI’s identity unless:

  1. The evidence sought to be suppressed was seized by authority of a search warrant or incident to an arrest with warrant; or
  2. There is corroboration of the informant’s existence independent of the testimony in question.

The circumstances in which the defendant is entitled to the CI’s identity are narrow. In most cases where law enforcement employs the services of a CI, law enforcement will seek a search warrant. This is because the work of cultivating a CI and developing a case relying on a CI’s information is usually deliberate in nature. Given the investment of law enforcement resources and patience involved, the investigation often culminates with a search warrant rather than the type of warrantless interaction associated with a fast-developing situation. Given the relative rarity of warrantless CI cases, the exception for cases involving a warrant (where turning over the CI’s identity is not required) nearly swallows the rule.

In what real-world circumstances does the law apply?

Since the statute only creates an obligation to reveal the CI’s identity where officers make a warrantless search or seizure, it tends to come into play in situations where the target of an investigation is in a vehicle or on the move. In such situations, the contraband or evidence sought may only be within law enforcement’s grasp for a brief time and it is impracticable to apply for a search warrant.

The caselaw we have on 15A-978(b) largely involves seizures where the defendant was in a vehicle. See State v. Collins, 44 N.C. App. 141 (1979) (defendant was alleged to be selling drugs out of a van near a high school and CI stated that defendant had just made a sale); State v. Bunn, 36 N.C. App. 114 (1978) (defendant seen leaving house with a large paper bag and getting into a car; CI stated that defendant was taking drugs to north end of town); State v. Ellison, 213 N.C. App. 300 (2011) (defendant stopped in a truck after CI described pattern of trafficking in prescription pills).

The “Two Officer Rule”

The caselaw interpreting G.S. 15A-978(b) establishes that the statute is concerned with the limited question of whether there are assurances that the CI exists, not the larger question of the CI’s reliability. See State v. Bunn, 36 N.C. App. 114, 116 (1978); State v. Ellison, 213 N.C. App. 300, 309 (2011). The statute requires corroboration to establish that the applying officer did not fabricate the existence of a CI as an after-the-fact justification for seizing evidence without a warrant. However, courts have been somewhat flexible in what constitutes adequate corroboration of the CI’s existence.

In some cases, such as State v. Collins, 44 N.C. App. 141 (1979), the corroboration is relatively straightforward. In Collins, a second officer accompanied the first officer in sending a CI to purchase drugs from a van parked outside of a high school. The second officer was in a position to directly corroborate the CI’s existence and involvement in the investigation.

In other cases, the corroboration is less direct. For example, in Bunn, 36 N.C. App. at 115-117, the first officer had the CI call a second officer thirty minutes after the arrest of defendant to repeat the information given to the first officer. However, the first officer’s efforts to corroborate the CI’s existence were foiled when the second officer died while the case was pending. To attempt to establish the existence of the CI, the first officer had the CI call a third officer and repeat the information three months after the incident. The defense complained at the motion to suppress hearing that this was not sufficient corroboration, since the information was simply parroted to the third officer well after the fact. However, the State responded that the third officer had in fact participated in the search and arrest of the defendant and the first officer had told the third officer about the information in advance. The third officer also was familiar with the CI and had received information from the CI leading to three arrests on earlier occasions.

In holding that the corroboration was sufficient, the Bunn Court interpreted G.S. 15A-978 to allow for a fair amount of flexibility. Corroboration of the CI’s existence could “includ[e] such things as the officer’s prediction to others of certain events of which he could not personally know, accompanied by a declaration that his informant has told him so.” See Bunn, 36 N.C. App. at 116. Such corroboration does not necessarily involve any direct contact between the informant and a second officer. In Bunn, on the day in question, the first officer told the third officer about what the CI had said about what the defendant was going to do, including information about when the defendant was going to leave his home and what drugs he would be carrying. The prediction of future behavior was borne out in observations of the defendant that day. The Court held that this was sufficient corroboration even though the third officer didn’t speak directly with the CI or directly observe the CI on the day in question. Compare State v. Ellison, 213 N.C. App. 300 (2011) (sufficient corroboration of existence of CI where first officer told second officer about information gained from the CI regarding a drug transaction and second officer was able to confirm the truth of the information through independent investigation).

In all three cases, Collins, Bunn, and Ellison, the Court of Appeals found sufficient corroboration. However, in all three cases, the State had a second officer who was able to corroborate the CI’s existence directly or indirectly. Had there been no second officer, the State would have been compelled by statute to turn over the CI’s identity for use at the suppression hearing.

As an aside, it’s worth noting that the defendant in Collins won a new motion to suppress hearing because the defendant tried to call four witnesses to establish that no one could have seen what the CI claimed to have seen (and thus the informant could not have existed), but the trial court would not allow the defendant to present this evidence. The Court of Appeals in Collins pointed to 15A-978(c), which provides that the statute does not limit the right of a defendant to contest the truthfulness of testimony offered in support of a warrantless search, in holding that the defendant should have been afforded the opportunity to present his evidence that the CI was fabricated.

Conclusion

In light of G.S. 15A-978(b), law enforcement should avoid situations where only one officer works with a particular CI and the officer keeps the details of the relationship and information provided by the CI secret. If the CI’s work culminates in a warrantless search, the CI’s identity may be at risk should the defense invoke G.S. 15A-978(b) and demand corroboration of the CI’s existence at the motion to suppress stage. Conversely, defenders should bear in mind that they have a strong chance of compelling the State to reveal the CI’s identity where the State fails to produce a second officer to corroborate the CI’s existence.

However, our appellate courts have found that a CI’s existence can be corroborated in a variety of ways. The second officer need not necessarily interact directly with the CI, as long as it is apparent to the second officer that the first officer knows things that the first officer could not possibly know without a CI and the first officer states that a CI is the source of this knowledge.

Although the caselaw sets a relatively low bar for corroboration of the CI’s existence for the purposes of G.S. 15A-978(b), remember that the analysis for motions to suppress is separate from that for determining whether the CI’s identity must be turned over to ensure a fair trial. Defenders have stronger arguments at the trial stage given the different standards and questions at play. The question is not just whether there is corroboration that the CI exists, but whether due process requires that the defense learn the CI’s identity to confront the CI or elicit potentially important testimony. The analysis at trial is the relevant question for Parts I-V of this series.

This is my last post in this series on confidential informants, discovery, and motions to reveal the CI’s identity (although I am planning one bonus post on defense motions to obtain law enforcement’s file on the CI). Look out for a bulletin combining these blogs into one comprehensive resource, and in the meantime, please reach out at spiegel@sog.unc.edu with any questions or comments.