10-203 - Confidential Informants

The purpose of this policy is to establish procedures and protocols so employees take the necessary precautions concerning the recruitment, control and use of confidential informants.

Additionally, MN Statute section 626.8476 Subd. 3 requires the MPD to establish and enforce a written policy governing the use of confidential informants.

Follow Procedures

1. CIs shall not be used without authorization of the MPD through procedures identified in this policy.
2. CIs shall be managed in accordance with the MPD Managing Confidential Funds & Informants Manual.
3. Employees shall follow all MPD procedures when obtaining and using information from a confidential source (CS) or cooperating defendant (CD).

Training Required

1. In accordance with MN Statute section 626.8476 Subd. 4, the MPD shall provide in-service training in the recruitment, control, and use of CIs to every peace officer employed by the MPD who the Chief determines is involved in working with CIs given the officer's responsibilities. The training shall comply with learning objectives based on the policies and procedures of the model policy developed and approved by the board.

2. Employees shall not recruit, control or use CIs unless they have received the required training.

Employee Relationships with CIs

1. Employees shall not knowingly maintain a social relationship with a CI, or otherwise become personally involved with a CI beyond actions required in the performance of duty.

2. Employees shall not solicit or accept gratuities from or engage in any private business transaction with a CI.

Assets of the MPD

CIs shall be treated as assets of the MPD, not the individual CI Handler.

Preferential Treatment or Consideration

CIs will sometimes offer to exchange information for immunity, consideration in sentencing, or for their release from criminal charges.

1. No promises or guarantees of preferential treatment within the criminal justice system shall be made to any CI without prior approval from the prosecuting authority.
2. Any employee seeking to make an agreement to exchange information for release from arrest or for requesting special charging or sentencing consideration from the prosecuting authority or court, shall have the prior approval of the employee’s Commander or Inspector.
3. Agreements shall be documented in accordance with the MPD Managing Confidential Funds & Informants Manual.

Purposes of Information

CIs shall not be used to gather information purely of a political nature or for other information-gathering efforts that are not connected with a criminal investigation.

No Entrapment

CIs are prohibited from engaging in actions or activities that could be deemed entrapment.

Entrapment is when a person to commits an act or engages in conduct otherwise criminal, if the criminal design does not originate with the person, but is conceived in the mind of a government agent, and the person is by coercion, persuasion, deceitful representation, or inducement lured into committing an act the person otherwise would not have committed and had no intention of committing.

No Guarantee of Anonymity

While all reasonable efforts will be taken to protect a CI’s or confidential citizen’s identity, law enforcement cannot guarantee that the name will not be released.

Initial Suitability Determination

An initial suitability determination shall be conducted on any person being considered for a role as a CI. The initial suitability determination includes the following:

Initial Suitability Report

Report required

1. An officer requesting use of a person as a CI shall complete an Initial Suitability Report (using the CI Suitability Report form, MP-9103).

2. The report shall be submitted to the appropriate person or entity, as determined by the Chief, to review for potential selection as a CI.
3. The report shall include sufficient detail regarding the risks and benefits of using the person so that a sound determination can be made.

Report elements

The following information shall be addressed in the report, where applicable:

CI demographics

• Name, aliases, and date of birth
• Height, weight, hair color, eye color, race, sex, scars, tattoos, or other distinguishing features
• Employment status
• Marital status and number of children

CI contact information

• Current address and phone number
• Emergency contact information
• Current employer, position, address, and phone number

CI record

• Prior record as a witness
• Prior or current service as a CI with this or another law enforcement organization
• Criminal history, to include whether the person is the subject of a pending investigation, is under arrest, or has been charged with a crime
• Consultation with the person’s probation, parole, or supervised release agent, if any

CI relationships

• Affiliation with legitimate businesses and illegal or suspicious enterprises
• Relationship with the target of an investigation
• Relationship to anyone in law enforcement
• Gang affiliations or other organizational affiliations

CI motivation

• Motivation in providing information or assistance

Information provided

• Extent to which provided information can be corroborated
• Briefs of information provided by the CI and the CI’s subsequent reliability (if applicable)

Impact on other investigations

• Extent to which potential information, associations, or other assistance could benefit a present or future investigation
• Risk of adversely affecting an existing or future investigation

Risks involved

• Risk to the public
• Risk of flight by CI
• Risk of physical harm to the potential CI or their immediate family or relatives for cooperating with law enforcement
• Consideration and documentation of the person’s diagnosis of mental illness, substance use disorder, traumatic brain injury, or disability; and consideration and documentation of the person’s history of mental illness, substance use disorder, traumatic brain injury or disability
• Documentation and special consideration shall be made of the risks involved in engaging a prospective or current CI in the controlled buy or sale of a controlled substance if the person is known, or has reported, to have experienced a drug overdose in the previous 12 months

Other CI information

• Residential addresses in the last five years
• Social media accounts
• Vehicles owned and their registration numbers
• Places frequented
• Special skills and hobbies
• Special areas of criminal expertise or knowledge

Supervisor review and determination

Prior to a person’s use as a CI, a supervisor or other designated authority shall review the Initial Suitability Report and determine if the person is authorized to serve as a CI.

Exclusion from buys and sales

1. Any prospective or current CI shall be excluded from engaging in a controlled buy or sale of a controlled substance if the prospective or current CI:

1. Is receiving in-patient treatment or partial-hospitalization treatment administered by a licensed service provider for a substance use disorder or mental illness OR
2. Is participating in a treatment-based drug court program or treatment court.

Except that:

2. The prospective or current CI may provide confidential information while receiving treatment, participating in a treatment-based drug court program or treatment court.

Referral to services

1. Any prospective or current CI who is known to abuse substances, or is at risk for abusing substances, should be provided referral to prevention or treatment services.

2. Any prospective or current CI that has a physical or mental illness that impairs the ability of the person to understand instructions and make informed decisions should be referred to a mental health professional or other appropriate medical professional, or a case manager or social worker from the county social services agency, or other substance use and mental health services.

Special approval for certain people

Certain people who are being considered for use as a CI require special review and approval.

1. In all instances, the Chief or the Chief’s designee and the office of the prosecutor or county attorney shall be consulted prior to the use of the following people as CIs:

• Juveniles
• People obligated by legal privilege of confidentiality
• Government officials

1. The CI Handler shall document the consultation, including the positions and people consulted, on the CI Special Approval Consultation form (MP-9104).

2. Additionally, use of a juvenile under the age of 18 for participating in a controlled buy or sale of a controlled substance or contraband may be undertaken only with the written authorization of the person’s parent(s) or guardian(s).

1. Authorization for such use shall only be granted when a compelling public interest can be demonstrated.

1. A compelling public interest applies to situations in which failure to act would result or likely result in loss of life, serious injury, or have some serious negative consequence for people, property, or public safety and therefore demand action.
2. The CI Handler shall document the compelling public interest on the form.

2. A juvenile may provide confidential information without authorization of the parent(s) or guardian(s), when provided as an Anonymous Citizen, Confidential Citizen or Tipster.

3. Juveniles under the guardianship of the State shall not be used as a CI.

Exigent CIs

In certain circumstances a person who has been arrested is willing to immediately cooperate and perform investigative activities under the direction of a CI’s Handler.

1. In these circumstances, the initial suitability determination can be deferred and a person may be used as a CI for a period not to exceed 12 hours from the time of arrest if all of the following apply:

1. The person is not excluded from use as a CI under [IV-A-3] of this policy.

2. There is compelling public interest or exigent circumstances exist that demand immediate utilization of the person as a CI and any delay would significantly and negatively affect any investigation.

1. A compelling public interest applies to situations in which failure to act would result or likely result in loss of life, serious injury, or have some serious negative consequence for people, property, or public safety and therefore demand action.

3. A supervisor has reviewed and approved the person for utilization as a CI under these circumstances.

2. Upon the conclusion of the 12-hour window, or at any time before, an initial suitability determination shall be conducted before the person engages in any further CI activities.

Continuing Suitability

1. Each CI’s suitability shall be reviewed every 6 months, at a minimum, during which time the CI’s Handler shall submit a Continuing Suitability Report (using the CI Suitability Report form, MP-9103), completing all of the elements and requirements of an Initial Suitability Report.

2. Any information that may negatively affect a CI’s suitability during the course of their use shall be documented in the CI’s file and forwarded to the appropriate authorized personnel as soon as possible.
3. Information provided by a Confidential Reliable Informant (CRI) is generally recognized as more reliable than that of a CI, which has resulted in the Court allowing law enforcement greater latitude when using CRI information.

Supervisor Review in CI Management Process

1. Supervisors shall review CI files regularly with the CI Handler.
2. Supervisors shall attend debriefings of CIs periodically as part of the CI management process, every six months at a minimum.
3. If a CI is active for more than 12 months, a supervisory meeting with the CI shall be conducted without the CI Handler.

Inactive Status

1. CI contracts shall be terminated, and the CI file placed in inactive status when the CI has not been used for 6 months or more.

2. An initial suitability determination shall be conducted on a reactivated CI regardless of the length of inactivity.

CI Agreement

1. All CIs shall sign and abide by the provisions of the MPD’s CI agreement (CI Cooperating Agreement, form MP-2802).

2. Any physical or mental illness that impairs the CI’s ability to knowingly contract or otherwise protect the CI’s self-interest shall be taken into consideration before the CI signs the agreement.
3. The CI’s Handler shall discuss each of the provisions of the agreement with the CI, with particular emphasis on the following:

1. CIs may voluntarily initiate deactivation, whereupon a CI Deactivation form shall be completed (per section [IV-M]).<

2. CIs are not law enforcement officers. They have no arrest powers, are not permitted to conduct searches and seizures, and may not carry a weapon while performing activities as a CI.
3. CIs found engaging in any illegal activity beyond what is authorized by the MPD and conducted while under the supervision of a CI’s Handler, may be subject to prosecution.
4. CIs are prohibited from engaging in actions or activities that could be deemed entrapment. The meaning of the term and implications of such actions shall be explained to each CI.
5. CIs are prohibited from engaging in self-initiated information or intelligence gathering without MPD direction and approval. The CI must not take any actions in furtherance of an investigation without receiving specific instructions from the CI’s Handler or MPD.
6. Every reasonable effort shall be taken to ensure the confidentiality of the CI but, upon judicial order, the CI may be required to testify in open court.
7. CIs may be directed to wear a listening and recording device.
8. CIs shall be required to submit to a search before and after a controlled purchase.
9. CIs who participate in unplanned or unanticipated activities or meet with a subject under investigation in a location outside of the jurisdictional boundary of the MPD must promptly report that activity or meeting to their CI Handlers.

Confidentiality About CI and CI Safety

Safety procedures

1. Reasonable efforts and precautions shall be made to help protect the identity of a CI during the time the person is acting as a CI.

2. Procedures shall be instituted to assist CIs with concealing their identity and maintaining their safety.
3. Care should be given not to expose CIs to unnecessary safety risks.

Meetings

1. Meetings with a CI shall be conducted in private with another officer or agent present and with at least one officer or agent of the same sex, except when not practical.

2. The meeting location should minimize the potential for discovery of the CI’s cooperation and provide sufficient space to complete necessary administrative duties.
3. The meetings shall be documented and subsequently entered into the person’s CI file. Documentation shall include the date, time and location, attendees, and subject of the meeting. The documentation shall be provided to the Custodian of Records for inclusion in the file.

Communications plan

1. CI handlers shall develop and follow a communications strategy and plan with the CI that minimizes, to the greatest extent possible, the risk of discovery or compromise of the relationship between the MPD and the CI.

2. This plan should also aim to prevent the detection, compromise, or interception of communications between the CI Handlers and the CI.

Risk or threat of harm

1. Reasonable protective measures shall be provided for a CI when any MPD employee knows or should have known of a risk or threat of harm to a person serving as a CI and the risk or threat of harm is a result of the CI’s service to the MPD.

2. CI Handlers shall:

1. Evaluate and document the criminal history and propensity for violence of target offenders; and

2. To the extent allowed, provide this information to the CI if there is a reasonable risk or threat of harm to the CI as a result of the CI’s interaction with the target offender.

Omit CI name in warrant affidavit

The name of a CI shall not be included in an affidavit for a warrant unless judicial authority is obtained to seal the document from the public record or the CI is a subject of the investigation upon which the affidavit is based.

Screen CI for buys and sales

Preceding or following every buy or sale of controlled substances, CI Handlers shall screen the CI for any personal safety or mental health concerns, risk of substance abuse, or potential relapse in any substance abuse recovery.

1. At the request of the CI, or if the CI’s Handler deems it necessary, reasonable efforts should be taken to provide the CI with referrals to substance abuse or mental health services.

2. CI Handlers shall document the following on the CI Receipt for Services or Contraband form (MP-2801), per section [IV-N-3]:

1. The screening of the CI,

2. Any referral to services provided to, or requested by, the CI, and
3. Any refusal by the CI to participate in the screening and any refusal by the CI to accept referral to services. Reasons for the CI’s refusal shall be documented, where applicable.

3. No part of this subsection supersedes MN Statute section 253B.05, Subd. 2 regarding Emergency Admission (see P&P 7-809).

Continue confidentiality and safety

1. People leaving employment with the MPD have a continuing obligation to maintain as confidential the identity of any CI and the information the CI provided unless obligated to reveal such identity or information by law or court order.

2. All reasonable efforts shall be taken to maintain the safety and anonymity of the CI after deactivation.

Confidentiality From CI

1. Officers shall take the utmost care to avoid conveying any confidential investigative information to a CI, such as the identity of other CIs, surveillance activities, or search warrants, other than what is necessary and appropriate for operational purposes.

2. Under no circumstances shall a CI be allowed access to restricted areas or investigators’ work areas within a law enforcement agency.

Information provided by CI

1. Whenever possible, officers shall corroborate information provided by a CI and document efforts to do so.

2. CI Handlers are responsible for ensuring that information of potential value to other elements of the MPD is provided promptly to authorized supervisory personnel or other law enforcement agencies as appropriate.

CI Activity Outside MPD Jurisdiction

1. CI Handlers of CIs who will be engaging in operational activity in locations outside the jurisdictional boundaries of the MPD shall coordinate with counterparts in law enforcement agencies that have jurisdiction in that location where the CI will operate before any activity occurs, unless the Chief or the Chief’s designee has approved otherwise.
2. If unanticipated activity occurs outside the jurisdictional boundaries of the MPD and is brought to the attention of the CI’s Handler, they shall coordinate in a timely manner after with counterparts in law enforcement agencies that have jurisdiction in that location.
3. The Chief or the Chief’s designee may review and approve a decision to delay notification to or coordination with an outside agency having jurisdiction in the area where a CI has or may operate. The CI Handler shall document the decision and approval.

Establishment of a CI File System

A CI file system shall be established as follows:

1. The Chief shall designate a file supervisor who shall be responsible for developing and maintaining master CI files and an indexing system.
2. A file shall be maintained on each CI deemed suitable by the MPD.
3. Each CI shall have an information identification control number assigned when they are initially registered as a CI.
4. An additional Unreliable CI File shall be established for CIs deemed unsuitable during initial suitability determinations or at a later time.
5. Each file shall be coded with the assigned CI identification control number within the indexing system and shall include the following information, where applicable:

1. The Initial Suitability Report and any Continuing Suitability Reports, including the required attachments and information.

2. The CI Special Approval Consultation Form (if applicable).
3. A copy of the signed CI Cooperating Agreement.
4. The CI Deactivation Form (if applicable).

6. CI files shall be maintained in a separate and secured area.
7. The file supervisor shall ensure that information concerning CIs is strictly controlled and distributed only to officers and other authorities who have a need and a right to such information.

CI File Review

1. Sworn personnel may review a person’s CI file only upon the approval of the Chief or the Chief’s designee.

2. The requesting officer shall submit a written request explaining the need for review. A copy of this request, with the officer’s name, shall be maintained in the person’s CI file.
3. Officers shall not remove, copy, or disseminate information from the CI file.
4. CI files shall be reviewed only in designated areas of the law enforcement facility and returned as soon as possible to their secure file location.
5. All disclosures or access to CI files shall be recorded by the file supervisor, to include information such as the requesting officer or agency, the purpose of access or disclosure, the information conveyed, and the date and time of access or dissemination.
6. No portion of a person’s CI file shall be entered into any other electronic or related database without controls sufficient to exclude access to all but authorized personnel with a need and a right to know.

Deactivation of CIs

When deactivating a CI, the CI’s Handler shall complete a CI Deactivation Form (MP-9105) that includes, at minimum, the following:

1. The name of the CI.
2. The control number of the CI, where applicable.
3. The date of deactivation.
4. The reason for deactivation.
5. Whether the CI can or should be reactivated if the need arises. If not, the reason(s) why.
6. A notification that contractual agreements regarding monetary re-numeration, criminal justice assistance, or other considerations, specified or not, are terminated.
7. A notification that the MPD will provide and assist the CI with referrals to health services for assistance with any substance use disorder or physical, mental, or emotional health concerns, as requested or accepted by the CI.
8. A signature by the CI or documentation indicating the reason(s) why the CI was unable or unwilling to sign the form.
9. A signature by the CI’s Handler.

Recording CI Use

1. Each time a CI is used, the CI’s Handler shall complete the CI Receipt for Services or Contraband form, MP-2801. The form is required even if no monetary payment is made.

2. If the amount is greater than zero, one copy shall be provided to the CI Handler’s supervisor for recording in the ledger, and one copy shall be provided to the Custodian of Records.
3. If the use of the CI will include a buy or sale of controlled substances, the CI Handler shall screen the CI per section [IV-G-5], and shall document the screening on the form.

Monetary Payments

Monetary payments shall be managed as follows:

1. All monetary compensation paid to CIs shall be commensurate with the value of the information or assistance provided to the MPD.
2. All CI payments shall be approved in advance by the officer in charge of confidential funds.
3. Officers shall provide accounting of monies received and documentation for confidential funds expended. Any documentation of monies paid or received should not contain the true identity of the CI but should use the CI’s control number.
4. Two officers shall be present when making payments or providing funds to CIs.
5. The appropriate person, as designated by the Chief, shall ensure that the process for authorization, disbursement, and documentation of CI payments, as well as the accounting and reconciliation of confidential funds, is consistent with MPD policy.
6. If a CI is authorized to work with another law enforcement or prosecutorial agency, financial payments shall be coordinated between the agencies in a manner that is proportionate to the assistance rendered to each agency and consistent with provision [IV-J] of this policy.
7. Written records of receipts shall be retained, or justification for the exception shall be documented when a written receipt is not available.

• Affidavit: A written document (statement of facts) confirmed by oath or affirmation.
• Anonymous Citizen: A person who has come forward on a voluntary basis and is willing to provide information about a crime but does not disclose their identity. This person is not willing to be identified in police reports and will not testify voluntarily in any criminal proceedings.
• CI Cooperating Agreement: The agreement signed by a person before they can take on the role of a CI for the MPD, specifying conditions and acknowledgements. The form number is MP-2802.
• CI Deactivation Form: The form used when a person's role as an MPD CI is deactivated, specifying conditions and acknowledges regarding the deactivation. The form number is MP-9105.
• CI File: A file maintained to document all information that pertains to a confidential informant.
• CI Handler: The employee primarily responsible for supervision and management of a CI.
• CI Receipt for Services or Contraband: The form used to document each use of a CI, the exchange of funds or contraband, and the required screening in the case of buys or sales of controlled substances. The form number is MP-2801.
• CI Special Approval Consultation Form: The form used to document consultation with the Chief or the Chief's designee and the prosecutor or count attorney that is required prior to using juveniles, people obligated by legal privilege of confidentiality or government officials as CIs. The form number is MP-9104.
• CI Suitability Report: A report compiled by the Handler regarding the risks and benefits of using the person as a CI, including sufficient detail so that a sound determination can be made. The form number is MP-9103.
  
  -Initial Suitability Report: A Suitability Report compiled prior to use of the person as a CI by the MPD.
  -Continuing Suitability Report: A Suitability Report compiled every six months, at a minimum, to evaluate the ongoing risks and benefits of continuing to use the person as a CI.
• Compelling Public Interest: For purposes of this policy, a compelling public interest applies to situations in which failure to act would result or likely result in loss of life, serious injury, or have some serious negative consequence for people, property, or public safety and therefore demand action.
• Confidential Citizen: A person who has come forward on a voluntary basis and is willing to provide information about a crime with the understanding that their identity will only be known to law enforcement officials. This person is not willing to be identified in police reports and will not testify voluntarily in any criminal proceedings.
• Confidential Informant:

  A person who cooperates with a law enforcement agency confidentially in order to protect the person or the MPD’s intelligence gathering or investigative efforts, and:

  1. Seeks to:
     1. Avoid arrest or prosecution for a crime; or
     2. Mitigate punishment for a crime in which a sentence will be or has been imposed; or
     3. Receive a monetary or other benefit;
  2. Is able, by reason of the person’s familiarity or close association with suspected criminals, to:
     1. Make a controlled buy or controlled sale of contraband, controlled substance, or other items that are material to a criminal investigation;
     2. Supply regular or constant information about suspected or actual criminal activities to a law enforcement agency;
     3. Otherwise provide information important to ongoing criminal intelligence gathering or criminal investigative efforts.
• Confidential Reliable Informant (CRI): A person providing information to the MPD at the direction of an MPD Handler over time that has been useful in the furtherance of a criminal investigation or has resulted in the recovery of contraband. Information provided by a CRI is recognized by the Court as more reliable than that of a CI, which has resulted in the Court allowing law enforcement greater latitude when using CRI information.
• Confidential Source: Confidential Source or CS is a person or piece of technology that provides information to law enforcement related to criminal activity, where the identity is confidential or unknown. Includes Citizens and Informants.
• Continuing Suitability Report: A Suitability Report compiled every six months, at a minimum, to evaluate the ongoing risks and benefits of continuing to use the person as a CI.
• Controlled Buy: The purchase from a target offender of contraband, controlled substances, or other items that are material to a criminal investigation, where the purchase is initiated, managed, overseen, or participated in by law enforcement personnel with the knowledge of a CI.
• Cooperating Defendant: A person who has been charged with a criminal offense and the matter has not been adjudicated or otherwise been resolved by the Court. The information provided by a cooperating defendant (CD) and the identity of a CD may or may not be considered confidential, depending on the circumstances. There are additional specific requirements that must be met before a CD can be considered a Source of Information. Decisions about CDs must be made in conjunction with the appropriate prosecutorial agency.
• Custodian of Records: The person designated by the Chief, who is responsible for tracking and maintaining CI records.
• Exigent Circumstances: the need to prevent imminent harm or to provide emergency aid, to prevent imminent destruction or removal or evidence excluding narcotics, when in hot pursuit of an individual who committed or is suspected of committing a felony, or to prevent the imminent escape of a suspect
• Informant: People who give information to another, including Confidential Informant, and Confidential Reliable Informant
• Initial Suitability Report: A Suitability Report compiled prior to use of the person as a CI by the MPD.
• Investigation: A structured process of gathering, examining, and evaluating facts and evidence to determine what occurred, assess compliance with laws and policies, and support appropriate actions or decisions.
• Investigators: All persons from the MPD Homicide unit and Internal Affairs unit who are conducting an investigation of the Critical Incident, unless other Criminal Investigating and Administrative Investigating Entities have been designated by the Chief of Police or their designee.
• Juvenile: An individual who is under the age of eighteen (18) years.
• Mental Health Professional: A psychiatrist, psychologist or Police Assistance Program (PAP) contract consultant who is on the Federation and City's approved list to meet with officers involved in Critical Incidents. The Police Assistance Program (PAP) representative maintains the list.
• Search Warrant: A document issued by the Court authorizing the police to enter and search a person, premises, location or vehicle for purposes of evidence recovery.
• Social Media: An internet site or application where users create and share content and participate in online communities and conversations, in the form of a page, profile, account, group or other presence. These include, but are not limited to, blogs, forums, chat sites, Facebook, Twitter, Instagram, Nextdoor, LinkedIn, Reddit, and YouTube.
• Target Offender: The person suspected by law enforcement personnel to be implicated in criminal acts by the activities of a CI.
• Tipster: A person who contacts a crime tip-line and provides information for either a current or inactive investigation. The identity of a tipster is generally assumed to be unknown or confidential.
• Unreliable CI File: A file containing information pertaining to a person who has failed at following the established written CI Cooperating Agreement and has been determined to be generally unfit to serve as a CI.