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Florida Defendant in Drug Case May Not Be Able to Discover Identity of Confidential Informant

A fair number of drug cases in Florida initiate after someone gives the police information about someone selling or possessing drugs. These informants are often people who were arrested themselves and provide this incriminating information to the police to help them in their own case. The police may take this information and conduct surveillance, make some undercover drug buys and/or get a search warrant. When a drug arrest is made and drug charges are filed, it is rare for the state to disclose the name of the confidential informant, or CI, who provided the information that started the case. A criminal defense lawyer can request the information, but the judge may ultimately have to decide whether the state has to disclose the CI’s identity to the criminal defense attorney.

In a recent trafficking case near Jacksonville, Florida, a confidential informant gave information to the police that allowed them to get a warrant to wiretap the defendant’s phone. The police used the information from the defendant’s phone to make several drug trafficking arrests. The criminal defense lawyer field a motion to force the state to disclose the identity of the confidential informant so the criminal defense attorney could question him/her who may be a material witness.

Florida law protects the identity of confidential informants because they are important tools for the police to gain access to drug dealers and they place themselves in a dangerous position. Keeping them confidential encourages CI’s to come forward to the police with information about drug activities. As a result, the general rule is that the state does not have to disclose the identity of a confidential informant to the criminal defense lawyer.

There are, however, exceptions to the rule that would require the state to disclose the identity of a confidential informant in a case. For instance, if the state intends to have the CI testify at the trial, the state has to release his/her identity and give the criminal defense attorney an opportunity to question him/her. The Constitution provides that a defendant, through his/her criminal defense lawyer, has a right to investigate and question witnesses who will be testifying against the defendant in a criminal trial. Also, if the defense can establish that the CI’s identity is relevant and helpful to the defendant and is necessary for the defendant to receive a fair trial, the CI’s identity must be disclosed. The reason is similar to the prior basis whereby the Constitution requires that a trial against the defendant be fair and the defendant have a right to utilize all evidence that is relevant, material and helpful to the defendant. A criminal defense lawyer cannot just claim the CI is relevant and helpful to the defendant. The defense must assert a legitimate defense to the charges and support it with sworn testimony. The courts have repeatedly held that asserting the CI is necessary to challenge the basis for a wiretap or warrant is not sufficient without more and specific evidence as to why the wiretap or warrant is illegal.