Earlier this year, a state appellate court issued a written opinion in a Boston drug case involving the defendant’s motion for additional discovery related to the confidential informant that police officers used to conduct the pre-arranged buys that lead to the defendant’s arrest.
Police officers frequently use confidential informants, rather than an undercover police officer, as a part of their investigation when they suspect someone is selling drugs out of a house. Typically, police officers will give the confidential informant marked bills and wait in a car and watch as the confidential informant approaches the defendant’s home and engages in a transaction. The confidential informant will then return to the officers, bringing them whatever the defendant allegedly sold to them. However, often, the transactions occur inside the home, beyond the sight of the police officers. Based on their observations, police officers will then complete an affidavit for a search warrant, and search the home.
Of course, from the defense perspective, the use of confidential informants is concerning. First, these informants are often drug users themselves, who may have reason to curry favor with local police officers. Also concerning is the fact that it is not uncommon for confidential informants to be paid for their services, raising the issue of bias. In other words, maybe a confidential informant is making up allegations to make a few dollars. Finally, as a general rule, the identity of a confidential informant is protected, thus, they will not appear at trial and the defendant will not have an opportunity to confront them.
These concerns were the basis for the recent appellate decision. In that case, the defendant was arrested after allegedly making sales to a confidential informant. After the confidential informant made several heroin purchases from the defendant, the police obtained a warrant to search his home. The officers put this information into a search warrant affidavit, but failed to list the dates on which the alleged sales occurred. The search warrant was approved. Upon executing the warrant, police found fentanyl and suboxone in the defendant’s home, but no heroin.
In a pre-trial motion, the defendant sought information pertaining to any payment the confidential informant received for their services, and inquired what happened to the drugs that were allegedly procured from the defendant (the defendant was only charged with the drugs that were found in his home, not the ones he allegedly sold to the confidential informant). The defendant specifically noted that he was not seeking the identity of the confidential informant. The court granted his motion, finding that the information was relevant and necessary to prepare a defense. In so holding, the court noted that the dates of the alleged sales were missing, and that the search failed to return the same type of drugs that were allegedly purchased by the confidential informant.
As a result of the court’s opinion, the prosecution will either have to provide the defendant with the requested information or, if it chooses not to do so, withdraw the case against him.
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