Substantial Assistance

In many criminal cases, especially drug cases, a law enforcement officer will ask a person accused of a crime, either before or after an arrest, to provide substantial assistance.

The person providing substantial assistance while a threat of an arrest or prosecution is pending is called a “confidential informant” (or sometimes a “CI”). Providing substantial assistance is sometimes called “working off the charge.”

In many of these cases, the person accused of the crime would benefit from hiring a criminal defense attorney to assist them during the early stages of the case, especially when the case involves a request for substantial assistance.

This article explains the relationship that exists between the state (law enforcement and the prosecutor) and those confidential informants acting under substantial cooperation agreements.

Attorney on Substantial Assistance Contracts in Tampa, FL

If you are accused of a crime and were asked to work as a confidential informant (CI) for a local, state, or federal law enforcement agency, consider seeking out the services of a criminal defense attorney before you enter into any type of agreement.

During a completely confidential consultation, the attorneys at Sammis Law Firm can help you learn more about the pros and cons of such an agreement and the best way to protect your rights.

In fact, under Florida Statute Section 914.28(3)(c), the law enforcement agency, when they request that you work as a confidential informant, must provide you with “an opportunity to consult with legal counsel upon request before the person agrees to perform any activities as a confidential informant.”

Many law enforcement offices throughout the greater Tampa Bay area, including the Tampa Police Department, have standard operating procedures and statewide legal standards that they must follow in these cases. Understanding the rules can help you decide how to protect yourself while fighting for the best result in your case.

If you are the target of an investigation involving an undercover officer or confidential informant, then you also need the services of an aggressive criminal defense attorney during every stage of the case.

The attorneys at Sammis Law Firm represent clients throughout the greater Tampa Bay area including in Tampa and Plant City in Hillsborough County, in Brooksville in Hernando County, in New Port Richey, Land’O’Lakes, and Dade City in Pasco County, in St. Petersburg and Clearwater in Pinellas County and in Bartow and Lakeland in Polk County, FL.

Call (813) 250-0500.

Agreements or Contracts for Substantial Assistance

These agreements for working as a confidential informant might be formal or informal. A formal agreement usually follows specific rules and guidelines when entering into a contract or agreement.

Law enforcement officers and prosecutors often walk a thin line between ethical and unethical conduct when engaging a confidential informant especially when the agreement is less than formal.

Believe it or not, law enforcement officers are even able to use juveniles who are under the age of 18 years old as confidential informants under certain circumstances.

When the deal breaks down, the officers or prosecutor can be particularly vindictive. The role of a criminal defense attorney is to fight against unethical conduct by the law enforcement officer or prosecutorial misconduct by the State Attorney’s Office.

Any failure to follow the rules when using a confidential informant might be a due process violation. In extreme cases, that type of violation might lead to the outright dismissal of the charges, especially for the target of the investigation.

Is Working as a CI or Snitch Dangerous?

Yes, working as a confidential informant (“CI”) or snitch can be extremely dangerous.

For instance, Rachel Morningstar Hoffman, a 23-year-old Florida State University graduate, was murdered while acting as a confidential informant in a botched drug sting operation. Law enforcement officers did not discover her dead body until two days later.

Because of public outrage surrounding the circumstances of her death, the Florida State Senate passed “Rachel’s Law” on May 7, 2009.

Many complain that Rachel’s Law does very little to protect the safety of a confidential informant or to prevent law enforcement officers from using coercive procedures.

As recently explained by the court in State v. Eddie, __ Fla. Supp. __ (Fla. 13th Cir Ct. 2018)(14-CF-015754-A on April 25, 2018):

“It is commonly understood that a ‘snitch’ is a pejorative term used to refer to a witness who testifies against someone on behalf of law enforcement with the expectation of favorable treatment from law enforcement. It pits one defendant against another, with significant consequences for one and benefits for the other.

It is a powerful tool in the hands of a prosecutor and especially in a matter where there are several parties involved. Importantly, anyone suspected of potentially assisting law enforcement may well find themselves in fear for their personal safety.”

The courts have a long history of tolerating and even encouraging the use of confidential informants.

As Judge Learned Hand once wrote:

“Courts have countenanced the use of informers from time immemorial; in cases of conspiracy, or in other cases when the crime consists of preparing for another crime, it is usually necessary to rely upon them or upon accomplices, because the criminals will almost certainly proceed covertly.”

United States v. Dennis, 183 F.2d 201, 224 (2d Cir.1950).

Florida’s Definition of “Confidential Informant”

Under Florida Statute Section 914.28(2):

(a) “Confidential informant” means a person who cooperates with a law enforcement agency confidentially in order to protect the person or the agency’s intelligence gathering or investigative efforts and:

1. Seeks to avoid arrest or prosecution for a crime, or mitigate punishment for a crime in which a sentence will be or has been imposed; and

2. Is able, by reason of his or her familiarity or close association with suspected criminals, to:

a. Make a controlled buy or controlled sale of contraband, controlled substances, or other items that are material to a criminal investigation;

b. Supply regular or constant information about suspected or actual criminal activities to a law enforcement agency; or

c. Otherwise provide information important to ongoing criminal intelligence gathering or criminal investigative efforts.

§ 914.28(2)(a), Fla. Stat.

A private citizen confidential informant essentially becomes an agent or instrument of the local, state or federal government.  In these cases, informants become agents of the State, especially when acting in accordance with a formal agreement made with authorities.

For instance, in Davis v. State, 928 So.2d 1089, 1125 (Fla. 2005), the court held that the defendant failed to establish jailhouse informant was acting as agent of the State where the informant did not testify at trial, and there was conflicting testimony as to whether the informant was negotiating a deal with the State.

Using a Confidential Informant for a Controlled Drug Buy

One common way in which law enforcement officers use a confidential informant is to facilitate a “controlled buy” of controlled substances.

The most common types of drug charges involving the use of a confidential informant involve the sale of a controlled substance or drug trafficking. In these cases, the police might encourage a person accused of a crime to set up a controlled by with their target offender.

The CI will be used to arrange a drug purchase from the target offender in hopes of securing a favorable report from detectives and obtaining substantial assistance credit in a prosecution for a crime such as drug trafficking.

When doing the substantial assistance work, the CI usually works under the supervision and direction of the detectives working the case. The CI will do the work at the behest of the detective with the hope of obtaining a possible future benefit.

The problem with using a CI is that the CI is typically able to entrap only the most naive and novice of participants. For example in a controlled buy, the more experienced a person is buying and selling drugs, the less likely the person is to engage with a confidential informant or undercover officer.

The most experienced drug dealer often knows all the tricks concerning how to beat a controlled buy. Additionally, a substantial assistance agreement is an authorization by an officer of activity that would otherwise be illegal. It means that the officer is really just manufacturing a crime so that it can gather evidence to prove the crime was actually committed.

Are the CI’s Statements Admissible at Trial to Show Entrapment?

In these cases, the government “must be involved either directly as a participant or indirectly as an encourager of the private citizen’s actions before we deem the citizen to be an instrument of the state.” Treadway v. State, 534 So.2d 825, 827 (Fla. 4th DCA 1988) (quoting United States v. Walther, 652 F.2d 788, 791 (9th Cir.1981)).

The Second District has held:

The test for determining whether private individuals are agents of the government is whether, in consideration of the circumstances, the individuals acted as instruments of the state. To determine whether a private individual acts as an instrument of the state, courts look to[:]

          (1) whether the government was aware of and acquiesced in the conduct; and

          (2) whether the individual intended to assist the police or further his own ends.

State v. Iaccarino, 767 So.2d 470, 475 (Fla. 2d DCA 2000) (citations omitted).

In Dufour v. State, 495 So.2d 154, 159 (Fla.1986), the court held that an inmate was not a State agent where the inmate “approached the authorities on his own initiative,” and, after speaking with authorities, the inmate “was neither encouraged nor discouraged from obtaining further information.”

Collateral issues include whether hearsay statements of the CI can be introduced at trial when the CI doesn’t testify. In most cases, the CI’s statements can be used by the defendant to show that entrapment occurred.

For instance, in State v. Moninger, 957 So.2d 2, 5 (Fla. 2d DCA 2007), the court held that the victim was an agent of the State when her actions were brought about by the officer’s suggestions and encouragement, law enforcement had an interest in obtaining the evidence to support a criminal prosecution, and nothing suggested that victim, of her own volition, contemplated obtaining the evidence in order to corroborate the crime, or for any private purpose.

For this reason, a confidential informant working under the supervision and direction of an investigating law enforcement agency is an agent of the State.

In these cases, a hearsay exception provided by section 90.803(18) applies to the CI’s out-of-court statements when offered by the defense when they are “[t]he party’s own statement[s] in either an individual or a representative capacity,” or “statement[s] by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship.” § 90.803(18)(a), (d), Fla. Stat.

Attacking the Credibility of a Confidential Informant at Trial or Motion Hearings

When the criminal defense attorney represents the target of the investigation, it is important to know how to attack evidence and testimony involving a confidential informant.

If the witness has a history of testifying in exchange for favorable treatment by law enforcement then it is important for the credibility of the witness to be attacked in front of the jury. Being a confidential informant almost always involves making untruthful statements and engaging in deceitful activities.

When a person is willing to engage in such behavior off the witness stand, the jury can be shown all of the reasons why the person might also make false statements or be deceitful while on the witness stand giving testimony.

What About Substantial Assistance under Florida Statute § 921.186?

Under Florida Statute § 921.186, the state attorney can file a motion to request that the sentencing court either reduce or suspend the sentence of any person convicted of a felony. The statute was enacted on July 1, 2010.

The requirements of Florida Statute Section 921.186 include:

  • that person has provided substantial assistance in at least one of the following areas:
    • the identification
    • the arrest
    • the conviction
  •  of any of that person’s accomplices, accessories, coconspirators, or principals or of any other person engaged in criminal activity that would constitute a felony.

Upon good cause shown, the motion may be filed and heard in private. The statute requires the sentencing court to give the arresting agency an opportunity to be heard in aggravation or mitigation in reference to any motion for substantial assistant.

Additionally, Florida Statute § 921.186 allows the judge hearing the motion to either reduce or suspend the sentence if the judge finds that the defendant rendered such substantial assistance. Read more about substantial assistance under Section 921.186, F.S.

Appeals from a Denial of a Motion to Reduce for Substantial Assistance

In McFadden v. State, 177 So. 3d 562 (Fla. 2015), the criminal defendant appealed the trial court’s denial of his motion to reduce or suspend his sentence under Florida’s “substantial assistance” statute.

Section 921.186, Fla. Stat., provides that the judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered such substantial assistance.

The Florida Supreme Court decided that “an order denying a motion filed under section 921.186 is an appealable final order pursuant to Florida Rule of Appellate Procedure 9.140(b)(1)(D).” See McFadden, 177 So. 3d at 566.

Additional Resources

Attorney General’s Guidelines Regarding Confidential Informants – On January 8, 2001, Attorney General Janet Reno published confidential informant guidelines, which are now outdated. The guidelines provide an important historical perspective on how the rules governing substantial assistance agreements have evolved over time.

Confidential Informant Rules and Guidelines in Florida – Visit the Florida Department of Law Enforcement website to find the Guidelines For Florida State And Local Law Enforcement Agencies In Dealing With Confidential Informants. The guidelines by the Florida Police Chiefs Association, the Florida Sheriffs Association, the State Law Enforcement Chiefs Association, and the Florida Department of Law Enforcement in March of 2009. The guidelines require that any person who is requested to act as a confidential informant shall, upon request, be afforded the opportunity to consult with legal counsel before agreeing to perform any activities as a confidential informant.

Terms of a Confidential Informant Agreement or Contract – Officers that use confidential informants facing criminal charges are supposed to tell the CI that the agency can not make promises or inducements such as a grant of immunity, dropped or reduced charges, or reduced sentences or being placed on probation and that the value (if any) of the confidential informant’s assistance and any effect that assistance may have on pending criminal matters can only be determined by the appropriate legal authority.

Tampa Police Department’s Rules on Confidential Informants – Read more about the rules and procedures that govern the way the Tampa Police Department uses confidential informants or handles substantial assistance deals.

This article was last updated on Thursday, March 31, 2022.