Informants in Drug Cases Part One: “Mere Tipsters”

A reoccurring question is whether a person charged in a drug case has the right to know the identity of the informant used by the police to make the case. The answer turns, in part, on whether the informant is a “mere tipster” or actually participated in a hand-to-hand transaction. This blog post addresses the situation when the informant is a “mere tipster.” The general rule is that disclosure of the identity of a “mere tipster” is not required. Examples of these cases include:

• In State v. Hayward, 302 S.C. 75, 393 S.E.2d 918 (1990), disclosure was not required because there was “no evidence that the [two informants] were actively involved in the ‘sting,’ or that they witnessed the drug buy.”
• In State v. Burney, 294 S.C. 61, 362 S.E.2d 635 (1987), disclosure was not required because the “informant's role in this case was limited to supplying the police with information regarding Burney's possession of narcotics. Although he did participate in the controlled buy in 1985, the transaction here served only to aid in establishing the informant's reliability. The informant did not participate in . . . any other transaction involving the possessory offenses for which Burney was tried and convicted.” This case, therefore, is only applicable if the State does not prosecute the hand-to-hand transaction.
• In State v. Bernotas, 277 S.C. 106, 283 S.E.2d 580 (1981), disclosure not required where confidential informant merely provided information and “it was not shown that the informer was a participant.”
• In State v. Shupper, 263 S.C. 53, 207 S.E.2d 799 (1974), disclosure was not required where the informant merely told the police “that a quantity of hashish had just been received at defendant's residence and was being prepared for sale” and did “not otherwise a participant or witness.”
• In State v. Bultron, 318 S.C. 323, 457 S.E.2d 616 (Ct. App. 1995), disclosure when the “informant's role in this case was limited to calling the police and stating he had observed a quantity of cocaine in a hotel room” and there was “no evidence in the record indicating the informant participated in or assisted with the actual delivery of the drugs or the subsequent arrests.”

Identity of the informant, however, may be relevant to the validity of a search warrant. E.g. State v. Sampson, 317 S.C. 423, 454 S.E.2d 721 (Ct. App. 1995). The identity of the informant may implicate other trial rights. In State v. Jenkins, 322 S.C. 360, 474 S.E.2d 812 (Ct. App. 1996), an informant claimed to have purchased crack cocaine from a couple that owned a diner. “The defense's position was that the informant "set up" the defendant, and “the drugs were planted.” The Court of Appeals held it reversible error not to allow the defense counsel to question the police officer about the informant. “The prejudice attaching to this error was exacerbated when the solicitor repeatedly stated in his closing argument that there was no evidence of anyone who could have planted the drugs.” The importance and applicability of these exceptions should not be overlooked in any case. The prosecutor will rely on the general rule, so it is the criminal defense lawyer's responsibility to discover and argue when an exception should apply. Due Process and Brady v. Maryland might require disclosure even when the informant is not a participant or witness to a drug transaction. Editorial Note: This post is the first in a two part series. Click here to read Informants in Drug Cases Part Two: Hand-to-Hand Transactions Participants & Witnesses when it is released on Friday, June 21, 2013.