Category Archives: Informant

SCOTUS Eliminates the “Provocation Rule”

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In  County of Los Angeles v. Mendez, the U.S. Supreme Court held that the Fourth Amendment provides no basis to uphold the Ninth Circuit’s “provocation rule,” a doctrine which makes officers liable for injuries caused by their use of force.

BACKGROUND FACTS

The Los Angeles County Sheriff’s Department received word from a confidential informant that a potentially armed and dangerous parolee-at-large had been seen at a certain residence. While other officers searched the main house, Deputies Conley and Pederson searched the back of the property where, unbeknownst to the deputies, respondents Mendez and Garcia were napping inside a shack where they lived.

Without a search warrant and without announcing their presence, the deputies opened the door of the shack. Mendez rose from the bed, holding a BB gun that he used to kill pests. Deputy Conley yelled, “Gun!” and the deputies immediately opened fire, shooting Mendez and Garcia multiple times.

Officers did not find the parolee in the shack or elsewhere on the property.

PLAINTIFF’S CIVIL RIGHTS CLAIMS

For those who don’t know, the “Provocation Rule” holds that if a police officer recklessly promotes a potentially violent confrontation with a Fourth Amendment violation, the officer is liable for any injury caused by a subsequent use of force that results from that confrontation, even if the use of force itself was reasonable.

Armed with the “Provocation Rule,” Mendez and Garcia sued the police deputies and the County under 42 U. S. C. §1983. They advanced three Fourth Amendment claims: a warrantless entry claim, a knock-and-announce claim, and an excessive force claim. On the first two claims, the Federal District Court awarded Mendez and Garcia nominal damages. On the excessive force claim, the court found that the deputies’ use of force was reasonable, but held them liable nonetheless under the Ninth Circuit’s provocation rule, which makes an officer’s otherwise reasonable use of force unreasonable if (1) the officer “intentionally or recklessly provokes a violent confrontation” and (2) “the provocation is an independent Fourth Amendment violation,.

The Government appealed the case to the Ninth Circuit Court of Appeals. On appeal, the Ninth Circuit held that the officers were entitled to qualified immunity on the knock-and-announce claim and that the warrantless entry violated clearly established law. It also affirmed the District Court’s application of the provocation rule, and held, in the alternative, that basic notions of proximate cause would support liability even without the provocation rule.

The Government appealed the Ninth Circuit’s ruling to the U.S Supreme Court.

COURT’S ANALYSIS

In short, the U.S. Supreme Court held that the Fourth Amendment offers no basis for the Ninth Circuit’s “provocation rule.” It reasoned that the rule is incompatible with this Court’s excessive force jurisprudence, which sets forth a settled and exclusive framework for analyzing whether the force used in making a seizure complies with the Fourth Amendment. The Court reasoned that the legal issue is “whether the totality of the circumstances justifies a particular sort of search or seizure.” Tennessee v. Garner.

The Court reasoned that the provocation rule instructs courts to look back in time to see if a different Fourth Amendment violation was somehow tied to the eventual use of force. Problematically, this approach that mistakenly conflates distinct Fourth Amendment claims. To the extent that a plaintiff has other Fourth Amendment claims, they should be analyzed separately.

“The Ninth Circuit attempts to cabin the provocation rule by defining a two-prong test: First, the separate constitutional violation must “create a situation which led to” the use of force; and second, the separate constitutional violation must be committed recklessly or intentionally,” said the Court.

The U.S. Supreme thought this approach was mistaken. First, the rule relies on a vague causal standard. Second, while the reasonableness of a search or seizure is almost always based on objective factors, the provocation rule looks to the subjective intent of the officers who carried out the seizure:

“There is no need to distort the excessive force inquiry in this way in order to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts.”

Plaintiffs can, subject to qualified immunity, generally recover damages that are proximately caused by any Fourth Amendment violation. Here, reasoned the Court, if respondents cannot recover on their excessive force claim, that will not stop them from recovering for injuries proximately caused by the warrantless entry.

“The Ninth Circuit’s proximate-cause holding is similarly tainted,” said the Court. Its focuses solely on the risks foreseeably associated with the failure to knock and announce—the claim on which the court concluded that the deputies had qualified immunity—rather than the warrantless entry.

My opinion? I concur with  blogger Radley Balko’s insights on this. He blogs about criminal justice, the drug war and civil liberties for The Washington Post, and says the following:

“The cops, on the other hand, engaged in some incredibly sloppy policing that nearly got someone killed. They violated the Mendezes’ Fourth Amendment rights not once, but twice. Then they filled the couple with bullets after they mistook Angel Mendez’s reach for his pellet gun as a threat. Angel Mendez was shot five times, and lost his right leg below the knee. Jennifer Mendez was shot in the back. That was 6½ years ago. They still haven’t seen a dime. And after Tuesday’s ruling, it seems unlikely that they ever will.”

Exactly.

Brady v. Maryland to the Rescue

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In United States v. Yepiz, the Ninth Circuit Court of Appeals remanded the convictions for numerous defendants so that it may engage in the necessary fact-finding to ascertain whether a government’s witness received benefits that were undisclosed to the defendants at the time of trial.

The defendants are all alleged to be members or associates of the Vineland Boys (“VBS”), a gang located in Southern California. On November 30, 2005, a grand jury returned a 78-count first superseding indictment charging appellants and approximately forty other individuals with crimes arising out of their membership or association with VBS.

Seven of the nine defendants were charged with violating the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and with RICO conspiracy, and all appellants were charged with federal distribution of narcotics. Other charged counts included violent crimes in aid of racketeering (“VICAR”), attempted murder, and possession with intent to distribute cocaine, methamphetamine, and marijuana.

Trial commenced on August 9, 2006. On October 26, 2008, the jury returned a verdict of not guilty as to five counts, a mistrial as to one count, and a verdict of guilty as to the remaining counts. The defendants timely appealed their convictions and sentences. This case was vigorously litigated over the course of two-and-a-half months. It presented the federal district court with a gauntlet of complex legal questions, and required it to grapple with unique concerns to courtroom safety and logistics.

At trial, one of the government’s cooperating witnesses was Victor Bulgarian. In September of 2006, on direct examination, Bulgarian testified that he was previously arrested for possession and sale of methamphetamine in an unrelated case, and agreed to cooperate with law enforcement in exchange for a lesser sentence, and a grant of immunity for his testimony as a government witness.

Bulgarian testified to having received no benefits from the government in exchange for his testimony. However, on cross-examination, Bulgarian testified to having received $5,000 in cash from the government after he testified to the grand jury in this case. Defendants noted that this testimony directly contravened a letter the government sent to them asserting that no witnesses received any benefits from the government in exchange for their testimony. The government acknowledged that it was “a glaring mistake,” but argued that the error was cured because defendants had ample opportunity to cross examine Bulgarian on the subject of the $5,000 payment. Defendants did not raise the issue again either at trial or in a post-trial motion.

Approximately three years later, on August 20, 2009, Bulgarian testified in the trial of defendant Horacio Yepiz. On direct examination, Bulgarian once again testified to having received no benefit from the government in return for his testimony. On cross examination, however, Bulgarian testified that since his arrest for drug-related crimes in 2004, he had received roughly $100,000 to $200,000 in cash from five different law enforcement agencies, although he was unable to give an exact figure. He explained that he was able to solicit paid work from these agencies whenever he wanted (“I decide when I want to work, and when I work, I get paid.”). Indeed, he testified to having received $800 for three hours of work the week prior.

Appellants now argue that the government violated Brady v. Maryland by failing to disclose the full extent of the benefits Bulgarian received at trial. For those who don’t know, Brady v. Maryland was a landmark United States Supreme Court case that established that the prosecution must turn over all evidence that might exonerate the defendant (exculpatory evidence) to the defense.

On Appeal, the Ninth Circuit reasoned that, under Brady, the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

The Ninth Circuit further reasoned that in order to prevail on a Brady claim, the defendant must show that the evidence was material. Materiality is satisfied when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.”

Here, the Ninth Circuit ruled that the government’s attempts to minimize the significance of Bulgarian’s testimony are not persuasive in light of the record:

“While some of Bulgarian’s testimony was independently corroborated, it nonetheless played a substantial role in the government’s case-in-chief. In particular, Bulgarian’s testimony was relied upon heavily by the government to show that VBS was a ‘criminal enterprise’ under RICO. Therefore, had the alleged Brady materials been made available to appellants at trial, there is a “reasonable probability” that the result of the proceeding would have been altered.”

With that, and In light of the disputed facts surrounding defendants’ Brady claim, the Ninth Circuit remanded the convictions to the district court so that it may engage in the necessary fact-finding to ascertain whether Mr. Bulgarian received benefits that were undisclosed to appellants at the time of trial, and if so, whether Brady was violated as to each convicted count.

My opinion? Good decision. Since Brady was decided in 1963, the U.S. Supreme Court has required that prosecutors and police officers disclose evidence that impeaches the credibility of any state witness, including police officers. Examples of impeachment evidence include false testimony, misrepresentations made in court documents, false information in police reports and internal police disciplinary proceedings.

Unfortunately, that is not being done.  There is no uniform system compiling Brady data; each county’s prosecuting attorney has different methods for assembling Brady information and different perspectives on when disclosure is constitutionally required. Naturally, this creates problems for defense counsel seeking exculpatory information from prosecutors and law enforcement agencies. Fortunately, competent defense counsel has ways of overcoming these challenges, as demonstrated by the excellent representation given to the defendants in this case.

Author of Confidential Informants Book Exposes the Truth

 

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A new book discusses how confidential informants negatively impact the criminal justice system. In “11 Days a Snitch,” author Alexandra Natapoff discusses how removing confidential informants information from investigations bolsters law enforcement authority while reducing the ability of legislatures, the press and the public “to evaluate executive actors and hold them accountable.”

Natapoff, a professor at Loyola Law School in Los Angeles, is considered one of the nation’s leading experts in the use of confidential informants. She has testified before the U.S. House Judiciary Committee in 2007 and had a hand in writing legislation in Florida known as Rachel’s Law, which was enacted in the wake of a young drug informant’s death. Natapoff discuses the negative impacts that confidential informants have had upon the justice system:

  1. CONSTITUTIONAL RIGHTS ARE VIOLATED IN FAVOR OF KEEPING AN INFORMANT SECRET.

The Fourth Amendment protects against unlawful search and seizure. That means, generally, police need a warrant and a judge’s signature for permission to enter a house or listen in on a private conversation. A confidential informant wearing a wire, however, does not have to jump through those hoops (though some states have barred warrantless use of informants in this regard).

The Sixth Amendment guarantees defendants the right to confront any witnesses against them. With informant witnesses, however, judges have chipped away at this right, in some cases allowing prosecutors to keep informants’ identities a secret. In 2002, for example, the Ninth Circuit Court of Appeals tried to strike a balance by allowing a confidential informant to wear a “wig-and-mustache disguise” on the stand.

The Fourteenth Amendment guarantees defendants due process, which includes a right to know all the evidence the state has, including evidence that could discredit the state’s witnesses. For snitches, that evidence could include criminal history and any benefit (such as leniency for their own crimes or cash) they receive in exchange for cooperating with law enforcement. However, the U.S. Supreme Court ruled in 2002 that defendants are not entitled to that information before trial. Specifically, the court was concerned that revealing those details “could ‘disrupt ongoing investigations’ and expose prospective witnesses to serious harm.'”

Natapoff argues this is significant because about 95 percent of criminal cases end in plea deals. That means most defendants are pleading guilty without knowing if the evidence against them is completely legit.

2. THE WAR ON DRUGS IS DRIVING THE USE OF INFORMANTS.

In 1995, decades into the war on drugs, lawyer and journalist Mark Curriden published an in-depth look at law enforcement’s extensive use of informants by analyzing more than 1,000 federal search warrants from 1980 to 1993. In that time frame, warrants that solely relied on information from a confidential source increased by nearly 200 percent — from 24 percent to 71 percent.

Although it’s impossible to get an accurate number of informants in the U.S., a recent audit of the DEA’s CI program cited more than 18,000 active confidential sources from October 2010 to September 2015. However, that same report found that “the DEA did not appropriately track all confidential source activity.”

3. THE RISK FOR ABUSE IS HIGH.

Natapoff discusses the case of four NYPD cops, who for decades have apparently fabricated sworn statements and arrests with the help of fictitious informants. A State Supreme Court judge in Brooklyn called one of the detectives “extremely evasive,” and did not find him “to be credible.” A judge in another federal case remarked: “I believe these officers perjured themselves. In my view, there is a serious possibility that some evidence was fabricated by these officers.”

“Given the reality that informant deals are baked into the criminal justice system, we are obligated to better regulate it,” Natapoff says. “We have fallen down in that regard. We have given such broad discretion to police and prosecutors and failed to create transparency and accountability mechanisms that would give us the confidence that these deals are being made in responsible ways.”

My opinion?
Transparency is essential to a fair and equitable criminal justice system. Knowing how we handle criminal behavior and dole out punishment allows the public to hold law enforcement accountable. The use of confidential informants, however, can pervert that premise in many ways. As a criminal defense attorney, I’ve always believed the use of confidential informants entrap many into committing crimes they would otherwise not commit. Snitches are motivated/biased actors who are not professionally trained in law enforcement and have significant criminal histories. All of these facts decrease their credibility. Kudos to Natapoff for showing the truth.

Jailhouse Snitches

The Legislative Advocacy Clinic at the University of Washington Law School is working on passing legislation which would require a pre-trial reliability hearing for “incentivized informants,” i.e., jailhouse rats. The law school put together a survey for defense attorneys in the state that they hope will better provide them with hard data on how and when informants are being used.

Some explanation is necessary. In some criminal cases involving wrongful convictions, the main evidence against the defendant is testimony by a jailhouse informant, who is commonly referred to as a “snitch.” Unfortunately, in weighing this evidence, a jury may be unaware that the snitch has received favorable treatment or a reduced sentence in exchange for his testimony, or that he regularly has acted as a jailhouse snitch by testifying in multiple criminal cases. In this respect, the snitch’s testimony could be unreliable because it’s motivated by something other than the truth. As a result, a snitch’s testimony has proven to be false in some cases, which in turn leads to wrongful convictions.
 
When an inmate has little recourse in his own criminal case, and is facing stiff penalties as a result of his crime, the temptation and desperation may prove too much, thus resulting in voluntary testimony that negatively implicates a fellow inmate. At that point, the snitch has nothing to lose; at worst, he will not get the incentive he has been promised, and, at best, he might receive a lighter sentence, reduced charges, and/or more pleasant accommodations while incarcerated, such as placement near family members. This all-too-common phenomenon of incentives in exchange for testimony can result in false testimony, and wrongful convictions.
Even worse, a jury considering “snitch evidence” in a criminal case is likely to be totally unaware of any incentives that the snitch was given by the prosecution in exchange for his or her testimony. Therefore, if the snitch otherwise appears to be credible during his or her testimony, the jury will have no reason to suspect that the snitch may have an alternate motive to testify.
 
The implications of wrongful convictions due to false testimony by snitches is highlighted in a 2005 report by the Center on Wrongful Convictions, Northwestern University of Law, Chicago, which profiles 38 death row defendants, convicted on the basis of false testimony by snitches, whose convictions were later overturned. According to the Center’s report, snitch testimony is the leading cause of wrongful conviction in capital cases, which obviously can have devastating results for the criminal justice system as a whole, not to mention its potentially irreversible impact on the innocent defendant, who loses years of his or her life to incarceration, or even life altogether.

State v. Z.U.E.: Terry Stop Based on Unreliable Informant Tip Was Unlawful

Good decision.

In State v. Z.U.E., the Washington Supreme Court decided that when police stop an individual based on an informant’s tip, there must be some “indicia of reliability” based on the totality of the circumstances. Here, there wasn’t.

The facts show that Z.U.E. was a juvenile passenger in a car stopped by police after several 911 callers reported a bald shirtless man seen carrying a gun. Another caller reported a 17 year old female gave the gun to the shirtless man. Based on these tips, police stopped a car believing that the female was in the car. They ordered Z.U.E out of the vehicle, searched him, and found marijuana on his person. The officers did not find any guns, nor did they find the bald, shirtless subject.

The state prosecuted Z.U.E for Unlawful Possession of a Controlled Substance and Obstructing a Law Enforcement Officer. At his trial, Z.U.E. argued a CrR 3.6 Motion to Suppress and essentially challenged the Terry stop and subsequent search incident to arrest. The police who stopped ZUE did not know how many 911 callers there were or the identities of the callers and did not corroborate the report regarding the female with a gun.  The trial court denied the motion. Z.U.E. was found guilty of the drug charge and acquitted on the Obstructing charge. Z.U.E. appealed. The WA Court of Appeals reversed, holding that the 911 calls lacked sufficient “indicia of reliability” to justify the stop. Again, the case went up on appeal – this time, by the State –  to the WA Supreme Court.

The WA Supremes affirmed the WA Court of Appeals and suppressed the evidence. In reaching their decision, the Court discussed Terry stops. In challenging the validity of a Terry stop, article I, section 7 of the WA Constitution generally tracks the U.S. Constitution’s  Fourth Amendment analysis. That said, warrantless seizures are presumed unreasonable, and the State bears the burden of establishing that the seizure falls within one of the carefully drawn exceptions to the warrant requirement. One such exception is a brief investigatory detention of a person, known as a Terry stop. For a Terry stop to be permissible, the State must show that the officer had a “reasonable suspicion” that the detained person was, or was about to be, involved in a crime.

They court further reasoned that when police stop an individual based on an informant’s tip, there must be some “indicia of reliability” based on the totality of the circumstances. There must be either (1) circumstances establishing the informant’s reliability or (2) some corroborative observation by the officers that shows the presence of criminal activity or the informer’s information was obtained in a reliable fashion. Here, the police did not have any articulable reason to suspect any of the passengers in the car of criminal activity. The seizure of Z.U.E was unlawful and the evidence obtained as a result of that seizure should have been suppressed.

My opinion? Good decision. This was a straightforward application of the law. The informant tips were unreliable. Also, Z.U.E.’s involvement on the 911 calls and firearms was so attenuated that it was virtually irrelevant. Well done, WA Supremes!