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1998-09-21
Monitoring, Corroboration of Confidential
Informants Makes for Sound Police Work
Criminal Law

By Alan L. Yatvin
Special to the Legal

In Interest of O.A., Justices Ralph J. Cappy and Ronald D. Castille faced off on the question of the
reliability of police informants.

Writing for three justices, with Justice Russell M. Nigro concurring in the result, Cappy declared "we
do not believe that an assertion by a police officer as to an informant's reliability with no objective
facts to substantiate his assertion, is sufficient to support a finding of probable cause."

Vigorously dissenting on behalf of the remaining three justices, Castille criticized the majority's
"apparent[] belie[f] that the testimony of a police office is not to be trusted until supporting documents
have breathed credibility into that testimony ... amount[ing] to a categorical indictment of the
trustworthiness of police."

Notwithstanding the dissent's heated rhetoric, however, the controversy is not over police
trustworthiness, but whether the courts of this Commonwealth will learn the lessons of recent history
and acknowledge developments in modern policing.

In the spring of 1995 the public learned of massive corruption in Philadelphia's 39th Police District.
For years a small squad of autonomous officers had been stealing, perjuring themselves, fabricating
exigent circumstances and manufacturing probable cause, including drafting warrants based upon
non-existent "reliable" informants and fictitious surveillance.

In the wake of these revelations, hundreds of convictions were overturned and millions of dollars
were paid to settle lawsuits brought against the City of Philadelphia.

As early as 1989 the Defender Association presented then-Judge Nigro with powerful documentary
evidence in support of the Defender's claim that some of these officers were engaged in a pattern of
fabricating exigent circumstances as a ruse to dispense with search warrants. Nigro requested that the
office of then-District Attorney Castille investigate the allegations.

The District Attorney's office concluded the allegations were merely Defender paranoia and chose to
accept the officers' stories at face value. It would be several years before the victimization of Arthur
Colbert, a college student too credible to be ignored, triggered the investigation that resulted in the
indictments of six police officers and reversal of convictions dating back to 1987.

These events alone should be sufficient to demonstrate the wisdom of requiring some documentary
corroboration of allegations of informant reliability.

However, the courts need not rely upon the lessons of history and common sense, police science itself
is in accord with the O.A. decision.

Philadelphia Police Department Directive 15 sets forth specific guidelines for the use of confidential
informants, including documentation of contacts with such informants and maintaining records on the
reliability of those informants. Although this Directive was enacted in 1987 as part of the reforms
undertaken by former Police Commissioner Kevin Tucker, compliance was spotty and supervisory
oversight was lacking.

In September 1996, in the wake of the 39th District revelations, the Department entered into a
settlement in an action brought by the Philadelphia Chapter of the NAACP and the Police Barrio
Relations Project. This settlement included an agreement to conduct "periodic reviews and audits [of
t]he use of informants and the enforcement of Directive 15[, including] regular review and interviews
of informants to determine whether they are being used according to Department policy and whether
the allegations in warrant applications or testimony concerning their past activities are accurate.
Further, copies of warrants and other related paperwork that relate to specific informants should be
placed in the informant's file."

In the area of informant monitoring and record keeping Philadelphia's policies are generally consistent
with the Model Policy on Confidential Informants drafted by the International Association of Chief's
of Police (IACP) in 1989.

In a 1990 Concepts and Issues Paper on Confidential Informants, the IACP National Law
Enforcement Policy Center noted: "The potential for corruption is inherent in any law enforcement
activity conducted in secret. The department must protect itself against the possibility that officers may
explain corrupt activities by claiming their criminal associates were informers. ... Finally, establishing
an informant file system as recommended in the model policy can help protect CI's identities and
ensure that informant information will be put to the best legal use possible."

With the ruling in O.A. the courts of Pennsylvania do not, as the dissent claims, show disrespect for
police officers. Rather, our courts now recognize and require that which one of the nation's largest
police departments and the world's largest association of police executives have known for years -
monitoring and corroboration of confidential informants is sound police administration and makes for
good police work.

(Copies of the 27-page opinion in In the interest of O.A., PICS NO. 98-1875, are available from
The Legal Intelligencer. Please refer to the Pennsylvania Instant Case Service order form on Page 9.)

Alan L. Yatvin is a partner in the Law Firm of Popper & Yatvin, where he concentrates in police
misconduct civil rights litigation. He is co-counsel for plaintiffs in NAACP and PBRP v. City of
Philadelphia.