Witnesses: Citizen informers, anonymous callers and confidential informers Note: The information provided below is a general overview. You should check your state’s specific guidelines for the use and veracity of informants. Your affidavit may contain information provided to you by a third person, called an informer or informant. This type of information is considered hearsay. The identity of the informer may be revealed in the affidavit or it may be kept confidential. Generally this information from informants is considered as part of the totality of the circumstances (as decided by the supreme court in Gates) when considering whether probable cause has been met. However a few states still adhere to a two prong approach as established by the court in Aguilar and Spinelli. If your state follows this two prong approach then both of the following elements must be established by substantial evidence: • The informer’s veracity. The informer providing the hearsay must be credible. The affidavit must contain sufficient facts indicating that the informer is believable or truthful. For example, the affidavit should state the reasons why the informer believes that the seizable items are located in the place to be searched and the reasons why the police officer believes that the informer is reliable. To satisfy the veracity test, the affidavit must establish that: (a) the informer is a truthful person; (b) the informer has a particular motive to be truthful about the specific allegation (for example, it is against the informer’s interest); or (c) the allegations of criminality are sufficiently corroborated. • The informer’s basis of knowledge. The informer has a factual basis for the information furnished. The affidavit must contain sufficient facts indicating the basis for the informant’s knowledge. For example, the affidavit should describe the accused’s criminal activity in sufficient detail for the judge to determine that the allegation is something more substantial than casual rumor. To satisfy the basis of knowledge test, the affidavit must establish that: (a) the informer gathered the information of illegal activity in a reliable fashion; or (b) the informer’s information is based on either personal knowledge or on reliable hearsay received by the informer. Citizen informers—Persons whose identity is provided in the affidavit are called citizen informers. A citizen informer is a person who is a victim or witness of a crime, who is motivated by good citizenship, and who acts openly in aid of law enforcement. Citizen informers generally are presumed to be truthful. Anonymous callers—Persons who make an anonymous call to crime-stoppers have no presumption of truthfulness; their veracity must be established the same way as for other informers. Confidential informers—Persons whose identity is not revealed in the affidavit are called confidential informers. An affidavit should explain why the identity of an informer is concealed. In some states, there is no presumption that a confidential informer is reliable. A statement in the affidavit that a confidential informer provided accurate information in the past is not in itself a sufficient indication of the informer’s current reliability. SOURCE: INSTITUTE OF PUBLIC LAW, JUDICIAL EDUCATION CENTER, UNIVERSITY OF NEW MEXICO, JEC.UNM.EDU/TRAINING/SEARCH_WARRANTS/SW_REQUI.HTM How to use this field guide 10 The Humane Society of the United States
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