Pubdate: Thu, 02 Jun 2016
Source: New Times (San Luis Obispo, CA)
Copyright: 2016 New Times
Author: Chris McGuinness


A group of men met among the tombstones of a Paso Robles cemetery 
sometime in 2014.

Two of them were lawmen from the SLO County Narcotics Unit, a 
multiagency group dedicated to tackling drug crime in the county. The 
third was a civilian. A man with a wife and kids and a past checkered 
by drug use and criminal charges.

They were there for different reasons. The lawmen knew drugs were 
flowing into the county. They wanted to root out the criminals 
responsible for selling them and put the dealers behind bars. The 
third man was just looking to stay away from the wrong side of those same bars.

It was this last man who would be sent to make an undercover drug buy 
from dealers he didn't know as part of an operation that would later 
be criticized by the narcotics unit's own officers.

He was a confidential informant. He'd made a deal, was given a 
number, and sent out to work off criminal charges with the 
possibility of jail time looming over his head.

He's not alone. The narcotics unit, and nearly every law enforcement 
agency in the nation, rely on confidential informants to gather 
intelligence, participate in undercover operations, and help them 
build cases that lead to arrests and convictions. The details of the 
county's informant program are closely guarded to protect those very 
informants. But the recent trial of a former narcotics unit 
investigator shed light into the dark corners of that world, 
illuminating the men and women who decide to "snitch" and end up on 
the front lines of SLO County's war on drugs.

Making a deal

The man on the witness stand wore a black shirt and jeans. Speaking 
in short, clipped sentences, he showed discomfort when answering 
questions from the prosecution and defense attorneys. Occasionally, 
he turned his head to look at the jurors, who watched and listened 
intently while taking notes.

No one in the courtroom knew his name. When he agreed to become a 
confidential informant for the narcotics unit, he was designated 
"CI-1425," but to the jurors, attorneys, and audience members in the 
courtroom, he was called "John Doe."

The identities of confidential police informants are supposed to be a 
carefully guarded secret. Both informants and their handlers live 
with the very real fear that they will be outed to the criminals they 
tell on and face violent reprisal. But that day in court marked the 
third time that John Doe appeared in person, in public, to tell 
others about his work for the narcotics unit. Each time, he was 
called to testify about the investigator who'd been his handler on 
that day in the cemetery: August "AJ" Santana.

Santana was on trial for perjury (and has since been acquitted), 
accused by his former peers of falsifying information in a narcotics 
arrest warrant based on an undercover drug buy operation. Santana, an 
investigator for the SLO County District Attorney's Office who was 
assigned to the narcotics unit in 2013, claimed that any errors in 
the warrant were innocent mistakes, but his peers said the entire buy 
operation was flawed and that Santana falsified information about 
what happened to make a judge more likely to grant his search 
warrant. John Doe, the very man Santana and others in the unit vowed 
to protect, was stuck in the middle of it all.

John Doe's path to becoming a police informant is a common one. At 
the time, he was married and a father, but he was also into doing 
not-quite-legal things.

"I think it's very fair to say they've done something in their past 
that put them in a position to make the choice," Santana said in his 
testimony to the jury. "They can work off their sentence and work off 
their charges, or go to jail."

According to his testimony, John Doe said he'd abused drugs "for a 
period of time" in the past and had been arrested for drug violations 
twice prior to becoming an informant. He was on probation for 
receiving stolen property and was arrested for violating his parole. 
Facing the possibility of jail time, John Doe said he decided to 
become an informant.

"I was in custody, and they made a deal with me," he told the jury. 
"I'd make some buys for [Santana], ... he made the case go away."

Sheriff's Office officials said people become confidential informants 
for a variety of reasons.

"Sometimes confidential informants get paid for their services, and 
sometimes they're working time off their criminal case," Tony 
Cipolla, spokesman for the Sheriff's Office, wrote in an email 
response to questions from New Times. "In some cases they're being 
altruistic and simply provide information for the betterment of the community."

According to the testimony of Sgt. Eric Twisselman, a senior 
supervisor who has spent more than 10 years with the narcotics unit, 
informants usually assuage their criminal charges under a 
"three-for-one" agreement, meaning they have to help investigators 
make three cases against other criminals to work off a single charge 
against them. Commonly, this is done by asking the informant to 
participate in an undercover drug deal called a controlled buy. In a 
controlled buy, the informant sets up a drug deal with a suspect or 
target, then makes an exchange while being watched and monitored from 
afar by a team of officers.

"The bottom line is he leaves with the money and comes back with the 
drugs," Twisselman said.

Twisselmen's testimony during the trial hinted at just how common the 
use of such informants was in the department. He said he'd handled 
between 40 and 50 informants in his career, and participated in 
"dozens if not hundreds" of controlled buys. Wade Moxley, a sheriff's 
deputy who's been assigned to narcotics for eight years, testified to 
the role informants in the estimated 100 to 140 narcotics cases the 
unit handles each year.

"The goal is to get to street-level narcotics dealers and move up to 
bigger dealers," Moxley said. "The use of informants is very 
important for us in conducting our business."

Those controlled buys are critical to the unit's ultimate goal: to 
nab dealers operating on a larger scale. In order to do that, law 
enforcement agents like Twisselman need to find out where those 
dealers keep their drugs stashed and obtain probable cause for a 
search warrant to recover the drugs and arrest the dealers. Kristy 
Imel, a SLO County deputy district attorney, testified that she 
reviewed more than 200 affidavits for search warrants from the 
narcotics unit, vetting them before they were sent to SLO County 
judges for a signature. Imel told the jury that more than half of 
those warrants were based on a controlled drug buy.

"I'd say about 70 percent of them were controlled buy," she said.

When the process works well, the use of confidential informants and 
controlled buys can result in major arrests and the recovery of large 
amounts of cash and drugs, such as an August 2015 operation that 
resulted in the seizure of more than 5 kilograms of cocaine worth an 
estimated $200,000, multiple firearms, and the arrest of nine people.

Perhaps that's what Santana and his then-coworker, a SLO County 
probation officer named Noah Arnold, hoped would be the eventual 
result of the controlled buy they kicked off in the cemetery in 2014. 
They'd heard reports that someone was dealing meth in the small North 
County town of San Miguel, and John Doe had a connection to someone 
who knew a dealer who could hook him up. So they'd grabbed John Doe 
and a cadre of narcotics unit officers to conduct a small controlled 
buy. With the possibility of eventually putting a dealer behind bars 
and bringing in a massive haul of drugs, they gave John Doe $60 cash 
and sent him into the fray.

Nothing's perfect

Throughout the trial, nearly every member of the narcotics unit 
called to testify stressed the "control" element of a controlled drug 
buy: not only to preserve the chain of evidence and probable cause 
that would eventually make it into a request for a search warrant but 
also for the informant's personal safety. In a standard controlled 
buy, the informant would be searched before and after the buy. During 
the buy, the informant has to be closely monitored-preferably "wired" 
with a hidden audio or video recording device while the officers in 
charge of the operation watch and listen out of sight.

But the operations don't always go as planned, and according to many 
of the officers who testified at Santana's trial, the operation 
involving John Doe had several problems.

"Nothing's perfect," Twisselman told the court. "It doesn't always go 
that way."

Twissleman, Arnold, and other members of the narcotics unit were all 
called to testify against Santana during his trial. Each of them said 
that the San Miguel operation had problems.

"It was a strange meet," Arnold said. "Not according to plan."

For example, John Doe was supposed to go to the meet alone, but his 
then-wife, identified in court only as "Jane Doe," also showed up. 
While John Doe was subject to a pat-down search before and after the 
operation, prosecutors said that Jane Doe was not searched because 
there was no female officer to do so. John Doe wasn't wired, and 
there was confusion when John Doe's connection showed up to the meet 
with another man, then changed the area where they were supposed to 
meet their dealer.

"There were so many variables that put that controlled buy in 
jeopardy," Moxely told the jury.

There was even testimony that members of the unit assigned to trail 
John Doe and others as they drove a winding path through San Miguel 
to the buy's location lost sight of them for as long as five minutes.

"It was very troubling," Santana said in court. "I don't know if 
someone is shooting my informant behind a building."

Despite the problems, the buy eventually went down. The 
warrant-penned by Santana-based on that buy was signed by a SLO 
County judge and used to arrest San Miguel resident Tommy Pappas, 
whom the officers believed was the man who sold Doe the drugs that 
day. But after questions about the affidavit came to light, the SLO 
County District Attorney's Office dropped it along with one other 
unrelated drug case, and began investigating their own employee, 
Santana, for perjury.

Santana beat the charge in court, thanks in part to the testimony of 
John Doe himself, who attended a disciplinary hearing, a preliminary 
hearing, and the trial itself to testify, each time exposing himself 
and risking that someone would find out about his involvement with 
law enforcement.

"You did me a solid," John Doe told Santana in an audio recording 
between the two made shortly after the D.A.'s Office started its 
investigation. "I wouldn't do it for anybody else."

An element of danger

For a confidential informant there is a singular and overriding fear 
of being outed and facing violent retribution, which can range 
anywhere from a beating to death.

"It's not the most common," Twisselman testified. "Usually they're 
physically assaulted, but it can get that extreme."

Twisselman, the other officers who testified, and Santana all stated 
that they felt it was their obligation to protect their informants' 
identities and safety, even to the point that in affidavits for 
search warrants, they are often referred only by their numbers or 
simply as "CI." The danger was made clear in a graphic video Santana 
told the jury he watched as part of his narcotics training.

"I remember seeing videos, ... they were actually cutting the heads 
off their own guys who were police informants," he testified.

Santana said that in his work with John Doe, the informant was "very 
afraid" of what would happen if people found out that he was helping 
law enforcement. In the recording between the two played for the 
jury, Santana repeated a phrase that many a narcotics agents across 
the county have likely told their fearful informants.

"My main objective through this entire investigation ... is to 
protect you and your family."

It's a sentiment Irv Hoffman, a Florida resident and professional 
counselor, wishes he could believe.

In 2008, Hoffman's 23-year-old daughter, Rachel, was sent by members 
of the Tallahassee, Fla., Police Department to meet alone with two 
convicted felons and exchange $13,000 for cocaine, ecstasy pills, and 
a handgun as part of an undercover sting.

Rachel, a recent Florida State University graduate, was already on 
court supervision for a past drug charge when Tallahassee police 
caught her with a small amount of marijuana and four ecstasy pills in 
2008. She agreed to become a confidential informant and participate 
in the buy to avoid possible jail time.

Despite being monitored by law enforcement agents and being wired 
with an audio recording device, the controlled buy went south. Rachel 
disappeared from the police's surveillance and was later found dead, 
shot five times and left in a ditch in a rural Florida town. Hoffman 
said he and his then-wife never even knew their daughter had become 
an informant, and only learned about it from television coverage in 
the wake of her death.

"The police were not forthcoming about using Rachel," Hoffman told 
New Times. "We had no clue about what Rachel was doing."

The more he learned about the circumstances behind his daughter's 
death, the more concerned and angry Hoffman grew. His daughter had a 
previous drug charge when the police discovered the marijuana, but 
she was far from someone who could navigate a world of hardened 
criminals to make a major drug and weapons deal.

"When you're 23 and you get caught with a baggie of pot and some 
pills, you think you're going to prison and your life is over," he 
said. "I could live with her in jail, but I can't live with her dead."

His daughter's death launched Hoffman on a crusade to reform 
confidential informant practices both in Florida and across the 
United States. He pushed for more oversight, restrictions on how the 
county's law enforcement agency could recruit and use confidential 
informants, and more protections for the informants themselves.

"There are thousands of Rachels all over the country that are being 
used and hurt," Hoffman said. "I feel like they're pawns in the 
reckless game of the police."

Hoffman and other like-minded supporters were eventually able to get 
Florida lawmakers to pass Rachel's Law, which required the state's 
law enforcement agencies to establish stronger training and 
guidelines for the use of confidential informants, as well as provide 
more oversight and protections for informants, including considering 
their age and maturity, history of drug abuse, and informing them of 
their right to a lawyer before choosing to cooperate.

California's laws regarding confidential informants are less 
comprehensive. There are some laws on the books, including Chad's 
Law, which prohibits the use of children 12 and under as informants 
and requires judicial permission to use informants between the ages 
of 13 and 17.

Hoffman said even that isn't enough. He wants to see other states 
adopt similar protections to those found in Rachel's Law.

"We'd like to see Rachel's Law go national," he said. "We don't send 
out civilians to hand out parking tickets, so why do we use them for 
drug busts? It's ludicrous."

Sheriff's Office Spokesman Cipolla's statement said that the 
narcotics unit does give some training to informants and provides 
comprehensive training to the investigators who work with them.

"All of our investigators receive formal training in handling and 
dealing with informants, and they abide by the policies and 
procedures established by the Sheriff's Office," Cipolla wrote. "The 
safety of all those involved is paramount."

Bread and butter

Despite pushes from advocates like Hoffman to reform the use of 
confidential informants, and a recent discussion across the country 
about the effectiveness of harsh sentences for minor drug offenses, 
the reliance on individuals like John Doe for the potentially 
dangerous work of informing is unlikely to change. It's a sentiment 
that longtime SLO County Defense Attorney Illan Funke-Bilu puts bluntly.

"Frankly, if you removed informants from the game of cops and 
robbers, you'd eliminate about 80 percent of the police work in this 
country," said Funke-Bilu, who's been working as a defense attorney 
since the late 1970s. "Informants are the bread and butter of law 
enforcement, the police, and the FBI."

Even for a seasoned attorney like Bilu, it's difficult to ascertain 
the extent to which confidential informants are used to make drug 
cases in the SLO County court system. For starters, most individuals 
arrested and faced with an offer to flip are unlikely to even seek an 
attorney before making a decision, he said.

"Generally not. And by that I mean virtually always never," 
Funke-Bilu said. "The police work on fear and pressure, and if an 
attorney gets in between them and fear and pressure, the willingness 
of the potential informant evaporates."

When a confidential informant is used to get an affidavit, which is 
the basis for a search warrant used to make an arrest, those 
affidavits can be sealed, making it difficult for attorneys to obtain 
them in trying to defend their clients.

"What's been happening in the last 10 to 15 years, exponentially, is 
narcotics officers are getting a sealing order," Funke-Bilu said. 
"And those sealing orders prohibit getting those affidavits without a 
court order."

For the rest of the public, finding how heavily law enforcement and 
prosecutors rely on confidential informants is equally as opaque. In 
his statement to New Times, Cipolla wrote that the Sheriff's Office 
couldn't provide the number of confidential informants the narcotics 
unit works with, because the number often fluctuates. The SLO County 
Sheriff's Office also denied a public records request for narcotics 
affidavits and warrants that mention the use of confidential 
informants, citing a state law that exempts some law enforcement 
records from the open records law.

Despite testimony from witnesses in the Santana trial that 
informants' names are often not included in affidavits for search 
warrants, legal counsel for the SLO County District Attorney's Office 
also denied a similar public records request under similar exemptions.

"The District Attorney will not be producing any of the requested 
documents, assuming such documents even exist, or are within the 
District Attorney's possession, on a number of grounds," SLO County 
Counsel Rita Neal wrote in a response to New Times' request.

Case closed

The brief glimpse of the inner workings of the confidential informant 
program was over as soon as the jury read the not-guilty verdict in 
Santana's trial. After a little more than a week, the window into 
that mostly secret world shut tight. You could almost hear it 
shutting as the former investigator breathed a heavy sigh of relief 
at the jury foreman's words.

Santana walked out of the courtroom an innocent, free man. John Doe 
left long before the verdict. With his time as an informant likely 
over, walking into a world where men and women just like him continue 
that work-for good or ill, an unseen but crucial part of the criminal 
justice system.
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MAP posted-by: Jay Bergstrom