Informants, Issues Surrounding Use of

False Tips

Arrests, searches, and stops and frisks are frequently based on information from tipsters and confidential informants. Tipsters may name or incriminate innocents because of hatred or similar feelings. Anonymous letters or telephone calls allow this to be done with impunity. Although confidential informants’ criminal backgrounds may enable them to uncover crime, there is a risk that they will conceal their own crimes by falsely inculpating others. Confidential informants may also manufacture reports of crime in order to convince law enforcement officers of the worth of their services and to continue to be employed. Officers must consider these factors, because the use of informants is costly. The government paid federal informants hundreds of millions of dollars in the 1990s, including $97 million in 1993 alone.

In Aguilar v. Texas in 1964 and in Spinelli v. United States in 1969, the Supreme Court established what came to be known as the Aguilar-Spinelli test. This formulated the rule that information from[Page 710] an informant could not establish the probable cause that the Fourth Amendment requires for arrests and searches without evidence of the informant's veracity and his or her basis for concluding that criminal activity was afoot. In 1983, in Illinois v. Gates, the Court replaced the Aguilar-Spinelli test with a totality of the circumstances test that allows deficiencies in the government's showing with regard to the informant's veracity or basis of knowledge to be cured by a superior showing on the other prong. Although Gates criticized the Aguilar-Spinelli test for hampering law enforcement, the Fourth Amendment's entrustment of the probable cause determination to courts fits oddly with Gates's allowing probable cause to be established by an unusually reliable informant's unexplained belief that criminal activity exists. By also allowing a detailed account of criminal activity to compensate for the lack of evidence of an informant's truthfulness, Gates fails to guard against tale telling by untruthful informants.

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