Sheriff's Department Swears Informants Are Trustworthy, Reliable Despite Entirely Random ID Number Scheme

from the this-guy's-a-good-guy-whoever-the-hell-he-is dept

Wed, Apr 29th 2015 3:57am — Tim Cushing

Cops don't believe much of what criminals say -- even those who are still just "suspects" or "persons of interest." They'll say anything they can to stay out of jail. Perps are liars. Except when they're not.

When these perps become confidential informants, they're suddenly considered George Washington of the underworld -- paragons of truth and reliability. Affidavits and courtroom statements play up their honesty and integrity in a way only cops can: "CI-22 made several controlled purchases and said he saw weapons in the house." "CI-4130 has worked closely with Drug Interdiction over the past three years, leading to multiple arrests." And so on.

Confidential informants are given numbers rather than names to ensure those they've helped arrest don't come after them when they're released. A CI's "pedigree" is provided to magistrates in warrant applications and presented to trial judges as evidence of the informant's trustworthiness. All of these are sworn statements -- statements that rely on the confidential informant being not only who the officer says he/she is, but that this CI has proven trustworthy in the past. But all the courts -- and the defense -- see is a number.

In the [Richard] Graf affidavit, [Somerset Sheriff's Deputy Carl] Gottardi attested he had probable cause to believe Graf was hiding marijuana and other drug accoutrements in his home, based on information Gottardi received from a confidential informant called "11-25." 11-25 "ha[d] been a very reliable informant . . . for the past several years," and had helped "obtain[] numerous drug search warrants, . . . with numerous persons being charged and convicted of various . . . drug offenses," Gottardi swore. 11-25 had "also provided other law enforcement officials with reliable drug related information in the past." Specific to this case, Gottardi also wrote in the affidavit that 11-25 relayed his personal knowledge that "for several years [] Graf has continually sold large amounts of marijuana," describing the location of the "camp type residence" where Graf sold his "high grade, commercial type" stuff.

Relying on Gottardi's affidavit, a state Justice of the Peace signed off on the warrant, and during the search of Graf's home, police found marijuana plants and an unregistered short-barreled shotgun. Not surprisingly, Graf was indicted on federal firearms possession and drug charges.

CI 11-25: useful, honest and reliable. The sworn statements say "You can trust CI 11-25. He's never steered us wrong." Except that CI 11-25 could be literally anyone.

When Graf challenged these CI statements, he uncovered something that indicated the numbering system was worthless, and by extension, so was every sworn statement averring to the reliability of CI 11-25. Because there was no single "CI 11-25."

[H]is new lawyer decided to get to the bottom of things himself by digging up all the warrant applications filed by the Somerset County Sheriff's Department from April 2009 through April 2012 and searching for all references to "11-25." Turns out, there were none, that is, no warrant applications filed prior to April 2011 (which was when Gottardi got the warrant to search Graf's home) naming "11-25" as an informant. "11-25" did appear, however, in two of the warrant applications filed after Graf's, but in each of the three affidavits where "11- 25" was mentioned, the informant's background and history as a tipster were described a little differently.

It gets worse. The government's response completely undermined any previous claims of reliability -- not just for CI 11-25 -- but for any CI it had used to obtain warrants in the past.

The government fired off an explanation, though, and in support of its opposition to the motion, submitted a supplemental affidavit from Gottardi describing his "practice to periodically change the identifying numbers assigned to confidential informants." Gottardi also claimed that "the person designated CI 11-25 in the Graf search warrant has been assigned four identifying numbers during the course of" his work with Gottardi. In addition, "[o]ccasionally, identifying numbers will be re-used for different persons," Gottardi swore.

Graf shot back with the obvious: if the numbers have no underlying structure and are applied to any number of confidential informants, there's no way to verify the veracity of the officers' assertions on warrant requests. Just because one CI 11-25 was useful and honest doesn't mean the CI 11-25 in Graf's case was. CI 11-25 is no one. CI 11-25 is everyone. Sworn statements linking back to a group of informants all periodically using the same identifying number are what laypeople call "lies." It may not have seemed like a lie when the warrant application was filled out, but Graf's research shows that the CI 11-25 who helped generate probable cause either wasn't the person sporting the number when the warrant was obtained, or wasn't as reliable as the swearing officer portrayed him or her.

Gottardi's unconventional practice, Graf urged, "is meant to enhance the credibility of the [informant] whose number repeatedly appeared before the same [reviewing official], even though, according to Gottardi, they are different people."

The lower court was similarly nonplussed.

The court noted that "assigning the same numerical identifier to three different confidential informants within a relatively brief timespan" was a "surprising revelation about what seems . . . a highly irregular, ill-advised, and potentially misleading procedure."

Unfortunately, the judge chose to turn examination of this system and the randomly-numbered CI over to the ATF. The ATF looked it over and declared everything to be perfectly normal and CI 11-25 (who wasn't CI 11-25 at the time the warrants were obtained) just as honest and trustworthy as Gottardi had portrayed him in warrant applications. Graf's attempt to suppress the evidence was shut down.

The appeals court similarly found that the discrepancies between described informants -- combined with the "irregular" numbering system -- wasn't enough to call for the suppression of evidence. The leeway given to law enforcement by courts again makes an appearance, as even a numbering "system" that completely undercuts the alleged "pedigrees" of Gottardi's confidential informants isn't enough to show that he deliberately misled the magistrate when seeking warrants.

As we have acknowledged in the past, making a substantial preliminary showing is no easy feat, particularly when law enforcement relies on tips from unnamed confidential informants. See United States v. Higgins, 995 F.2d 1, 3 (1st Cir. 1993) ("When the government obtains a search warrant based on information provided by a confidential informant, defendants often lack the information required to meet the exacting standards of Franks."). Graf, like many other defendants in the same boat, has simply failed to meet his burden of making a substantial preliminary showing -- particularly under the deferential clear error standard of review we afford to a court's denial of a Franks hearing.

Second-hand statements that can't even be attributed to a fixed number are still trustworthy enough to secure search warrants, apparently. And the courts will back up this irresponsible (to say the least…) behavior because just writing down whatever identification number comes to mind in the affidavit isn't considered too misleading. This numbering system could be deployed to cover up all sorts of unconstitutional activity -- like warrantless searches, Stingray use, intercepted communications, etc. In each case, the fruits of these searches could be attributed to statements made by an unverifiable confidential informant. Even better, the informant never need exist. Cops could approach magistrates with supporting statements from CI-whatever because there's absolutely no way to establish the CI's existence, much less his or her "pedigree."

Yes, a coherent and consistent numbering system would slightly increase the chances of the CI being identified, but it also provides a modicum of proof that this person exists, rather than just being a string of numbers entirely unrelated to any singular person.

CI Numbering (PDF)CI Numbering (Text)

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Filed Under: carl gottardi, confidential informants, false history, informants, misleading, police, richard graf, somerset police, somerset sheriff's department

28 Comments

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That One Guy (profile), 29 Apr 2015 @ 4:11am

What could go wrong?
The ability to assign 'trustworthiness' to numbers which may or may not be connected to real people, or multiple people, and use 'statements' from a person who may or may not actually exists in court? Yeah, can't possibly see how that could be abused. /s
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Padpaw (profile), 29 Apr 2015 @ 4:14am

the kangaroo law system strikes again. with the banana republic courts in attendance
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Anonymous Coward, 29 Apr 2015 @ 5:22am

Lol. "That CI 11-25 dude has been giving us info for hundreds of cases! He's so helpful."
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Anonymous Coward, 29 Apr 2015 @ 5:33am

does it say anywhere that a CI has to be a civilian or even human?
it could have been the a cop with a hunch, FBI agent, NSA surveillance or even stingray.
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Quiet Lurcker, 29 Apr 2015 @ 5:50am

So that's where the copyright trolls have been going for their lawyering lessons. I wondered about that.
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Spaceman Spiff (profile), 29 Apr 2015 @ 6:04am

Cook the books?
The police cooking the books? Nah. Can't happen. They are all so upstanding and honest (sarcasm indicator here)...
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Anonymous Coward, 29 Apr 2015 @ 6:39am

Lazy police work.

Did the cops arrest the wrong person? Maybe not, sounds like the guy was guilty and it is probably a good thing that this person was arrested and convicted.
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Agonistes, 29 Apr 2015 @ 7:08am

Re:
Did you get the vapors when you read this article or did you grab your pearl necklace in shock?
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David, 29 Apr 2015 @ 7:16am

What about the right of the accused to face their accurer?
Even if you wanted to maintain their secrecy due to fear of retribution, certainly there should be some requirement that they appear before a judge in chambers or something.
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Anonymous Coward, 29 Apr 2015 @ 7:26am

Re:
Would you be as inclined to dismiss this if the arrestee was innocent? What if he was guilty, but of some lesser crime that would not have justified the amount of force used in execution of the CI-backed warrant? Suppose a CI attests to a situation that justifies a no-knock raid (for example, possession of a locking door and working toilet), the cops raid the place, kill the pets, arrest all the humans, and find that the target had an unpaid parking ticket, but otherwise was entirely innocent? The arrestee was "guilty" and, for the benefit of the ticketing jurisdiction, it is a "good thing that this person was arrested."

Take the other angle. Suppose an unreliable CI has his credibility boosted by this system and, as a result, the cops walk into a trap that they think will be a cakewalk. The CI reports to the cops that the target is a low level marijuana dealer, but the target is actually a local cartel outpost with well armed enforcers standing by. Either the cops get hurt or, if they went in with overwhelming force, they get another war story about how overwhelming force is the only type of force acceptable, because sometimes the target is just too well prepared for anything less.

The government can bring to bear tremendous force in the pursuit of law enforcement, so it has a moral obligation (which lately is all too often shirked) to use that power carefully. Due care requires proportionate force in execution of searches, but also that the search is reasonably informed for the benefit both of the searchee and the searcher.
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Virgil Reality, 29 Apr 2015 @ 7:35am

It's the law enforcement version of the Murray Gell-Mann Amnesia Effect.
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Anonymous Coward, 29 Apr 2015 @ 8:07am

I see a more fundamental problem here ...
Seems to me that a pesky bit of paper (the Constitution of the United States, 6th and 14th amendments) allow the accused to confront any witnesses against him.
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Anonymous Coward, 29 Apr 2015 @ 8:46am

Re:
but not the method uses to secure a warrant.

Even if the police were known far and wide for never abusing their power and always telling the truth it should get any case associated with it thrown out of court.

If they cannot arrest someone legally they have no business doing it at all. Who is to say they don't use this method to harass and intimidate someone simply because they do not like them
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tqk (profile), 29 Apr 2015 @ 8:46am

Re:
I think you're very likely to be a kiddie fiddler, a terrorist, and a copyright infringer. Good thing I won't have to testify or prove any of this at your trial.
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Anonymous Coward, 29 Apr 2015 @ 8:47am

Re: I see a more fundamental problem here ...
that would require the police and courts giving a dam about their citizens rights, instead of it currently works, whenever they choose to let their rights apply
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James Burkhardt (profile), 29 Apr 2015 @ 9:39am

Re:
Say it with me: THE END DO NOT JUSTIFY THE MEANS.

We have laws about evidence because otherwise we should just allow cops to regularly toss your house because there might be evidence of a crime. And once evidence of a crime is found somewhere, it justifies the entire sweep, because otherwise he would not have been caught. Saying that the locating of evidence justifies the illegal search is ridiculous.
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Ambrellite, 29 Apr 2015 @ 9:52am

Re: does it say anywhere that a CI has to be a civilian or even human?
My thoughts exactly. This looks like a perfect opportunity for parallel construction.
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Anonymous Coward, 29 Apr 2015 @ 10:34am

Re: I see a more fundamental problem here ...
... to confront any witnesses against him.

“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him”.

In reading that, though, as applicable to ex parte proceedings on the application for a warrant, you're making the mistake that Mr Justice Rutledge, writing for the court in Brinegar v United States, called out in 1949:
[T[he conclusion is drawn that the factors relating to inadmissibility of the evidence here, for purposes of proving guilt at the trial, deprive the evidence as a whole of sufficiency to show probable cause for the search . . .

[T]he so-called distinction places a wholly unwarranted emphasis upon the criterion of admissibility in evidence, to prove the accused's guilt, of the facts relied upon to show probable cause. That emphasis, we think, goes much too far in confusing and disregarding the difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search. It approaches requiring (if it does not in practical effect require) proof sufficient to establish guilt in order to substantiate the existence of probable cause. There is a large difference between the two things to be proved, as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.

And that passage from Brinegar is what Mr Justice Whitaker relied on, writing for the court in Draper v United States (1959), when he found that latter petitioner “entirely in error.”
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Anonymous Coward, 29 Apr 2015 @ 10:49am

Re: Re:
Saying that the locating of evidence justifies the ... search is ridiculous.
Historically, of course, in the 18th Century, searches for stolen goods (and that class of searches were most well-known to the criminal law at that time) were justified almost entirely upon whether the stolen goods were actually found in the place searched.

If they were found, then the search was good. If not, then it was a trespass, and an action for damages could be had.

Fairly simple law, and on the whole, I am not convinced that it was altogether ridiculous.
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Anonymous Coward, 29 Apr 2015 @ 10:50am

If his real name is 'Fuzzy Dunlop' then they have a few more problems to deal with.
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John Fenderson (profile), 29 Apr 2015 @ 10:52am

Re: Re: Re:
The reason that the law isn't still that way is because of police abuse. If we forget why we have put greater restrictions on what the state may do, we open the door to having those things come back (even more than they already are.)
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Anonymous Coward, 29 Apr 2015 @ 1:01pm

Of course it's reasonable for a judge to require proof of a CI's existence and reliability.

That has absolutely nothing to do with the random numbering scheme used by police to identify CIs in court documents. I don't understand why this article is focused so much on the numbering system. That seems like a red herring.
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Anonymous Coward, 29 Apr 2015 @ 1:12pm

Re: Re: Re: Re:
... because of police abuse...
I am quite sure that constables felt utterly abused whenever summoned to account for damages caused by their trespasses.

...open the door to having those things come back...
It has often occurred to me that some of the great cases of the 1760s, Wilkes v Wood, Money v Leach, and Entick v Carrington spring to mind, those cases, would today be dismissed by our courts upon qualified immunity.

In any event, the scholar Thomas Y. Davies says:
During the initial period of the century of search and seizure, the justices were primarily engaged in an ongoing campaign to restrain government regulation of business—and that included restraining government access to business records. The justices’ anti-regulation orientation seems to have provided the impetus for the invention of what we now call Fourth Amendment “search and seizure” doctrine in 1914 in Weeks.
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Anonymous Coward, 29 Apr 2015 @ 1:30pm

Re:
With a random numbering scheme, the judge cannot determine if the evidence of reliability is about the same informant, or just a selection of tips that actually resulted in evidence of a crime from the resulting search.
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David, 29 Apr 2015 @ 1:39pm

Re:
Because if CI11-25 has no meaning or is made up as they go along, the question is how can they verify CI's existence and reliability?
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Anonymous Coward, 29 Apr 2015 @ 2:44pm

Re: Re: Re:
If they were found, then the search was good. If not, then it was a trespass, and an action for damages could be had.
See Thomas Y. Davies, 2011, “How the Post-Framing Adoption of the Bare-Probable-Cause Standard Drastically Expanded Government Arrest and Search Power”, p.24:
2. The Liability Rule for a Warrant Search for Stolen Goods

. . . [T]he complainant who sought the warrant was protected against liability for trespass damages only if the goods were found. If the property was not found as alleged, the search constituted a trespass and the complainant was liable for damages. The likely explanation for this strict liability rule is that a search warrant for stolen goods served largely the complainant’s (the theft victim’s) own private interest. . . . The probable-cause-of-suspicion prong of the search-warrant standard was thus relevant as a criterion only for the issuance of the warrant; the lawfulness of the search made under the warrant ultimately depended on whether the stolen property was actually found. Hence, even more than in the case of an arrest warrant, being the complainant for a search warrant for stolen goods was not to be taken lightly.
(Footnotes omitted; emphasis added.)

In addition, see note 87 on p.22, discussing Lord Camden's remark in Entick v Carrington (C.P. 1765).
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Gush Guyser, 30 Apr 2015 @ 6:56pm

Why you can't trust (anyone)
Prosecution Bias has usurped the trustworthiness of the entire legal system around the globe.
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entelly, 9 Jun 2017 @ 11:03am

This article is very similar to a case I was involved with , where def. Motion to suppress based on reliability of "CRI" was denied even though no information about CI was given during affidavit other then information was obtained during a in custody interview. CI's lengthy criminal history , pending charges , or current parolee status were omitted by swearing officer. Judge denied motion stating he was pretty sure the magistrate had a good idea of what kind of guy CI was after officer said it was a in custody interview. As long as the swearing officer "believes in good faith" that what CI is saying, thats apparently enough to meet reliability standards and a "legal" warrant to be issued....
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