8.23 - 5. Confidential Informants

• Jurisdiction: New York

5. Confidential Informants

Where the basis for the probable cause was information provided by a confidential informant, the defense can request a Darden¹⁶⁰⁸ hearing to determine the existence and reliablity of the informant. At the same time, the prosecutor can request an in camera examination of the informant (or of the informant’s testimony before the judge who issued the warrant)¹⁶⁰⁹ in order to protect the individual’s identity.¹⁶¹⁰

A police officer’s confirmatory observations of the informant’s information is not an adequate substitute for production of the informant at a Darden hearing because the court must determine whether the source of the information was a real informant.¹⁶¹¹ However, where the search and seizure was conducted pursuant to a search warrant that was issued based on an informant’s sworn testimony, the prosecutor need not produce the informant since a transcript script of the testimony will suffice for purposes of the hearing.¹⁶¹² Probable cause for a search warrant will be lacking “where the application for the warrant is supported by the affidavit of a confidential informant who has not been questioned by the issuing court and whose reliability...