January 31, 2018


The Dubious Legal Claim Behind #ReleaseTheMemo (Orin Kerr, January 31, 2018, LawFare)

Part of the problem is that judges figure that of course informants are often biased. Informants usually have ulterior motives, and judges don't need to be told that. A helpful case is United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988), in which the government obtained a warrant to search a house for a meth lab inside. Probable cause was based largely on a confidential informant who told the police that he had not only seen a meth lab in the house but had even helped others to try to manufacture meth there. The magistrate judge issued the warrant based on the informant's detailed tip. The search was successful and charges followed.

The defendants challenged the warrant on the ground that the affidavit had failed to mention the remarkable ulterior motives of the informant. The affidavit didn't mention that the "informant" was actually a married couple that had been in a quarrel with the defendants; that the couple was facing criminal charges themselves and had been "guaranteed by the prosecutor that they would not be prosecuted if they provided information"; and that they had been paid by the government for giving the information. The affidavit didn't mention any of that. A big deal, right? 

According to the court, no. "It would have to be a very naive magistrate who would suppose that a confidential informant would drop in off the street with such detailed evidence and not have an ulterior motive," Judge Noonan wrote "The magistrate would naturally have assumed that the informant was not a disinterested citizen."  The fact that the magistrate wasn't told that the "informant" was guaranteed to go free and paid for the information didn't matter, as "the magistrate was given reason to think the informant knew a good deal about what was going on" inside the house.  

In some cases, omitted information about a witnesses's bias is irrelevant because there is enough evidence of the crime so that probable cause was not really in question. Consider Smith v. Edwards, 175 F.3d 99 (2d Cir. 1999) (Sotomayor. J.), a horrible case involving allleged abuse of a child. A mother reported that her husband had sexually abused their daughter, and the judge issued the warrant for the husband's arrest. The husband was arrested but the charges were later dropped. The husband then sued the officer who obtained the warrant, claiming that the officer had obtained the warrant only because he had left out critical information in the affidavit. In particular, the affidavit did not inform the magistrate that the mother had instituted divorce proceedings against her husband, and it did not state  that she had come to the police only after having tried unsuccessfully to obtain a restraining orders to bar him from contacting her or her daughter. In the husband's telling, you needed to understand the wife's bias to know that she had made up the claims about him to get custody of their daughter.

The court held that the failure to disclose this information was irrelevant. The undisclosed information "was not material because there would have been probable cause to arrest" the husband even if the officer had included the omitted information. Even if the affidavit been "corrected"  by including the omitted information "nothing in the outcome of the Superior Court proceedings that would have negated probable cause." 

Importantly, that doesn't mean that an informant's bias never needs to be disclosed. It just depends on facts of the case. It depends on how important the informant's information was to establish probable cause,  and it depends on how much the alleged bias makes the information unreliable in context. If there are reasons to credit the informant despite the bias, based on the detail of the tip,  the informant's history of providing reliable tips, or other information, then the background informantion about bias isn't particularly relevant.

...the guy who helped them bring down FIFA and the Australian Intelligence Service.
Posted by at January 31, 2018 12:36 PM