Drug Users, Drug Sellers, and Probable Cause

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Here’s a common fact pattern: Officers find a person in possession of drugs. The officers say, in effect, “we won’t arrest you if you’ll tell us who sold you the drugs.” The person then reports having recently purchased the drugs from a particular person at that person’s home. Does this provide probable cause to support a search warrant for the supplier’s home?

Yes, ruled a divided court of appeals last week on the specific facts of State v. Jackson.

Facts. Two officers, working on a drug investigation, “conducted a knock-and-talk at the home of a person they had never met.” The officers told the resident that she was facing potential criminal charges for possessing marijuana. The resident “agreed to provide information regarding where she obtained the marijuana.” She told the officers that she had purchased the drugs from the person who eventually became the defendant in the case, at his residence two days earlier. She gave the defendant’s name, described him, and described his home and its location.

Officers confirmed the accuracy of the defendant’s name, description, and the location of his home. They also learned that the defendant had previously been charged with possessing marijuana. Relying on this information plus the fact that they had received several citizen complaints about possible marijuana dealing at the defendant’s residence over the past year, the officers sought and obtained a search warrant for the defendant’s home. When they executed the warrant, they found marijuana and indoor growing equipment.

Procedural history. The defendant was charged with a variety of drug-related offenses. He moved to suppress, arguing that the search warrant was not supported by probable cause. A judge denied the motion, and the defendant pled guilty and appealed.

Court of appeals majority opinion. Judge Inman, joined by Judge Stephens, affirmed. The majority reasoned that the information given to the officers during the knock-and-talk should be treated as coming from a confidential and reliable informant. The officers had never met the person before, so she had no track record of reliability. However, she made statements that were “against her penal interest” and did so in face-to-face in a setting under which she was likely to be held accountable for any false information she provided. The information was very fresh and the officers were able to corroborate at least the biographical components of the information. The majority found this to be sufficient to establish her reliability and so to support probable cause.

Dissent. Judge Hunter dissented. He noted that the informant’s statements were made “after the officers told her she was facing criminal charges” and perhaps after some discussion of whether her daughter could be taken from her as a result of her drug activity. He did not think that the officers meaningfully corroborated the tip, since they did not confirm any of the incriminating aspects of the tip. And he noted that the citizen complaints were apparently from high school students and that little information about these complaints was elicited at the suppression hearing.

Comment. It will be interesting to see what the state supreme court does with Jackson, assuming that it is asked to review the decision. The part of Jackson that I found most intriguing was the majority’s reliance on the fact that the informant’s statement was against her penal interest. From one perspective, this was inarguably correct, as the informant admitted buying illegal drugs from the defendant. Several North Carolina appellate cases have applied the “against penal interest” rationale to facts like these. See, e.g., State v. Beddard, 35 N.C. App. 212 (1978) (finding probable cause existed to support a search warrant where an untested informant who had been caught with marijuana told an officer that he had recently purchased the marijuana from the defendant at his home; the court stated that the fact that the “informant’s statement [was] against penal interest was a circumstance showing the information was reliable”). Plenty of out-of-state cases are in a similar vein. See, e.g., Gaddy v. State, 596 S.E.2d 109 (Ga. 2004) (ruling that “inculpatory statements that are made by [an] informant can establish probable cause for issuance of a search warrant”). Many of these cases ultimately rely on the statement in United States v. Harris, 403 U.S. 573 (1971), that “[a]dmissions of crime, like admissions against proprietary interests, carry their own indicia of credibility—sufficient at least to support a finding of probable cause to search.”

But from another perspective, it seems likely that the informant’s motivation in making her statement was not to clear her conscience by admitting wrongdoing, but rather to improve her legal situation by avoiding being charged with a crime. A few out-of-state cases view facts like those with considerable skepticism. For example, in State v. Spillers, 847 N.E.2d 949 (Ind. 2006), the court considered a situation in which a man was caught in possession of drugs, then told the police who had supplied them. The court found this information insufficient to support a search warrant for the supplier’s home, rejecting the “against penal interest” argument. The court reasoned that “[a]lthough [the informant] admitted committing . . . possession of cocaine, his tip was less a statement against his penal interest than an obvious attempt to curry favor with the police.”

I’d be interested to hear readers’ thoughts and experiences concerning the reliability of statements made under circumstances like those present in Jackson.

9 comments on “Drug Users, Drug Sellers, and Probable Cause

  1. My initial thought is whether the information of the purchase is “stale”. Obviously, we do not see the Affidavit, so there might be other substantive information. Two days, however, seems a long time between a purchase and whether there is more remaining. I’m guessing the “citizen complaints” is used to substantiate the quantity being sufficient that it might probably be on the premises to be searched.

    Otherwise, I agree with your view as to whether it is against “penal” interest vs. mitigating her legal situation.

  2. The statement was obviously made ‘under duress’, and likely with a false claim of the Officers lessening the charge, which is very common practice.

  3. On the non-legal hand, that is some super cheesy police work and I agree it seems to be becoming more and more common: “Oh, look you have some weed. Tell us who you got it from!”
    I had a case a couple years back where an outside of Raleigh agency had some poor fool call up my 17 year old client who was his x-middle school girlfriend and get to agree to find him a very small amount of marijuana. She was promptly charged with a felony for the sale. She did not otherwise sell drugs but, like most young people, knew where you could get them if you needed to. The non-lawyer and non-police participants of our society should probably have the discussion about whether this is really what we want law enforcement spending its resources on.

  4. I’m confused as to how it can be against the informant’s penal interest if he/she is already on the hook for the marijuana. Sounds more like duress and currying favor.

  5. There are some that will call this poor police work, like above (“likely with a false claim of the officers” and “is this really what we want law enforcement spending its resources on?). As a prior Narcotics Investigator, we made these same type cases. It’s called using the little guy to move up the chain. If you don’t want to be the little guy, then don’t sell or use drugs. Law Enforcement Officers enforce the LAWS. And, until it’s legal, we will enforce it. The officers in this case corroborated as much of the info as they could, and they had additional complaints from other people over the past year. It sounds like a good case to me, and the Court made the right decision. With the results of the Search Warrant, the information was correct. If you can’t handle the police coming after your clients, then tell them to stop breaking the law.

  6. When is a confidential and reliable informant (whose timely, corroborated information is clearly a valid, legal basis for a search warrant) ever supplying information to cops for any reason other than self-preservation? (“…an obvious attempt to curry favor with the police.”)

  7. I think that an argument could be made that the statement was exculpatory instead of in-culpatory and that “reasonable man” would have made the statement to prevent himself from being arrested. I also have problems under a trespass doctrine as set forth in Katz v. United States or Florida v Jardines where a person’s fourth or fifth amendment rights are trespassed upon by the stop and talk. What part of the constitution authorizes stop and talk?

  8. The danger here is what happens when some junkie gives you a innocent guy, not the guy he gets his junk from. If the cops bust into to your house under those circumstances, trash the place looking for drugs and terrify your family, you now have no recourse. This level of investigation will be considered “reasonable” and bar recovery. This is not a far fetched possibility. I just did a quick Google search and hit three different news stories with that fact pattern on the first page. The 4th amendment exists for a good reason. If searches didn’t have negative consequences, in and of themselves, for the subject then there would be no need for any level of privacy.

  9. this is a horrible decision based on info from coercion and threats. how is that reliable or even against penal interest when she won’t be charged. Inman and stephens got it all wrong.

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