Probable Cause Based on Citizen, Anonymous, and Confidential Informants

• Publication year: 1999
• Pages: 47

28 Colo.Law. 47 Colorado Lawyer 1999.

1999, February, Pg. 47. Probable Cause Based on Citizen, Anonymous, and Confidential Informants

---

47

Vol. 28, No. 1, Pg. 47

The Colorado Lawyer
February 1999
Vol. 28, No. 2 [Page 47]

Specialty Law Columns
Criminal Law Newsletter
Probable Cause Based on Citizen, Anonymous, and Confidential Informants
by Kurt G. Stiegelmeier

Where reasonable suspicion for a stop or probable cause for arrest or search is based on information provided by citizens, rather than facts directly observed by police officers, the courts have always scrutinized the information and its source to ensure that there is a sound basis for reasonable suspicion or probable cause. In Aguilar v. Texas1 and Spinelli v. United States,2 the U.S. Supreme Court created a two-part test to determine whether information from a confidential or anonymous informant is sufficiently reliable. The first branch of this test examined the informant's basis of knowledge, while the second looked at the informant's veracity and reliability. Each branch of this test had to be satisfied

In Illinois v. Gates,3 the U.S. Supreme Court abandoned the Aguilar-Spinelli test in favor of a more flexible totality of the circumstances test. Under this test, basis for knowledge veracity, and reliability are still considered along with all other factors in a more fluid test. In People v. Pannebaker,4 the Colorado Supreme Court adopted the totality of the circumstances test. While applying the totality of the circumstances test, the Colorado Courts also apply their own unique rules

This article analyzes Colorado case law on whether reasonable suspicion and probable cause may be based on information that citizens and informants provide to the police. The article divides information provided by citizens and informants into three main categories: identified citizen-informants, anonymous informants, and confidential informants. It also provides some commentary on the case law and issues that remain unresolved.

Citizen-Informants

General Rules

In most cases involving information provided by citizens, the citizen identifies himself or herself and provides information to a police officer or dispatcher. A police officer then chooses to make a stop, arrest, or search. The case law strongly supports stops, arrests, and searches based on information provided by identified citizen-informants. The case law is clear that reasonable suspicion and probable cause may be based on information provided to the police by an identified citizen.5

In order for the "citizen-informant rule" to apply, the citizen must witness or have first-hand knowledge of the facts reported.6 However, the activity observed by the citizen need not be criminal in itself, as long as the facts observed create reasonable suspicion or probable cause.7 The citizen may provide the information directly to a police officer8 or to a police dispatcher.9 The information may be communicated in person10 or by telephone.11 The citizen-informant may be identified by name and address or by name and place of employment.12 Whether identification by name alone is sufficient is still an open question.

Information provided by an identified citizen-informant is presumed to be reliable.13 No corroboration of citizen-informant information is necessary,14 and the prosecution is not required to show that the citizen is credible or reliable.15 The citizen-informant is not subject to either the Aguilar-Spinelli or the totality of the circumstances test.16 However, the prosecution may show credibility if it chooses.17 For example, admissions against penal interest may enhance the informant's credibility.18

The presumption of reliability for citizen-informants applies only to the source of the information. The presumption does not apply to the content of the information or the weight to be given to the information. The fact that the information came from a presumptively reliable citizen-informant does not convert speculation and conjecture into reasonable suspicion or probable cause.19

Who Qualifies as a Citizen-Informant

Not every identified informant qualifies as a citizen-informant. The citizen-informant rule is based on the notion of a citizen who reports criminal activity out of public spirit and good citizenship, rather than vengefulness, payment, a desire to avoid criminal consequences, or other personal motives.20 The citizen-informant may be the victim of a crime,21 a disinterested witness,22 or a security guard.23 In the Colorado courts, the citizen-informant rule has been applied to children as young as eleven.24 In the Tenth Circuit, the rule has been applied to children as young as four.25

In Colorado, the courts have sometimes refused to treat co-participants in the crime as citizen-informants.26 Participation in the crime may or may not disqualify the informant as a citizen-informant, depending on the degree of the informant's involvement, when the statement was given, and whether the informant is seeking leniency or concessions in exchange for his or her statement. In People v. Trontell,27 the Colorado Supreme Court refused to treat as a citizen-informant a co-participant who gave his statement in hope of leniency. Similarly, in People v. Press,28 the Colorado Court of Appeals refused to treat an identified informant as a citizen-informant when the informant made his statement after being threatened with criminal prosecution.

A Texas appellate court, applying Colorado law in an extradition matter, also has held that Colorado law does not treat a co-participant as a citizen-informant.29 This appears to be the majority rule in the United States.30

However, where the co-participant's involvement is marginal or his or her statement is made against interest and not in exchange for leniency, a co-participant may still be treated as a citizen-informant. In the Colorado Supreme Court case of People v. Pate,31 the identified informant requested that a police officer arrest the defendant for colliding with his car. The officer refused because the accident had occurred in another jurisdiction. The identified informant then told the officer that the defendant had cocaine in her car and the informant knew this because he had been partying with her earlier in the evening. Acting on this information, the officer arrested the defendant and recovered cocaine from her car.

The majority held that the informant was a citizen-informant and presumed to be reliable despite his admission of use of cocaine. In fact, the majority held that the informant's admission constituted an admission against interest that made his statement even more reliable. The dissent contended that the identified informant's participation in the crime and apparent motive of revenge disqualified him as a citizen-informant.

In People v. Saars,32 which was...