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Motion To Suppress A Stop Based Upon A Tip From Confidential Informant

A motion to suppress a stop based upon a tip from a confidential informant is a motion that seeks the suppression of evidence based upon a lack of reliability from the confidential informant who gave information to the police before they stopped the individual.

Case Law

The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of “reasonableness” upon the exercise of discretion by government officials, including law enforcement agents, in order “to safeguard the privacy and security of individuals against arbitrary invasions…” Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 (1978). In State v. Dickey, the New Jersey Supreme Court addressed the allowable scope of a police seizure pursuant to Terry v. OhioState v. Dickey, 152 N.J. 468, 476 (1998). citing, Terry v. Ohio, 392 U.S. 1 (1968). In determining whether an investigative stop is reasonable under the Fourth Amendment, the Terry Court put forth a two-part test. Ibid. The test considers (1) whether the officer’s actions were justified at their inception and (2) whether the actions were reasonably related in scope to which justified the interference in the first place. Ibid. Information obtained from a confidential informant may in some circumstances justify reasonable suspicion necessary for a constitutional stop pursuant to Terry v. Ohio. State v. Smith, 155 N.J. 83 (1998). The New Jersey Supreme Court in State v. Smith, thoroughly analyzed the state and federal constitutional jurisprudence in regard to searches and seizures based upon tips from confidential informants. The United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), held that the reliability of an informant’s tip must be analyzed under the totality of the circumstances. Id. at 238. The New Jersey Supreme Court has adopted this approach. State v. Novembrino, 105 N.J. 95 (1987). The two essential factors to the Gates analysis is consideration of the informant’s veracity and basis of knowledge, known as the Aguilar/Spinelli factors[1]. Under the Gates, totality of the circumstances approach, a deficiency in one of the Aguilar/Spinelli factors “may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Gates, 462 U.S. at 233. The Supreme Court in Gates recognized, in the context of probable cause to obtain a search warrant, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity’ and `basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 238. The New Jersey Supreme Court has recognized that because each of the Aguilar/Spinelli factors constitutes a relevant circumstance, both must be considered in assessing all of the surrounding circumstances in a Gates informer analysis.

In determining whether an informant demonstrates “veracity,” past instances of reliability may be considered. State v. Ebron, 61 N.J., 207, 212-13 (1972). Even though the informant’s veracity may be supported by past reliability in investigation, past instances of reliability do not conclusively establish the informant’s overall reliability in making a determination. Novembrino, 105 N.J. at 123.

The next factor to consider is the informants “basis of knowledge”. The basis of knowledge is specifically relevant in determining that the information was obtained in a reliable way. Novembrino, 105 N.J. at 113. Detailed information about the manner in which information is gathered is important to determine whether the informer has reliable and detailed information or is simply relying on a casual rumor or an individual’s reputation. Ibid. The basis of knowledge for the tip can also be established by the informer predicting hard to know facts and future events. Accurately predicting hard to know future events can provide a basis to believe that the informer derived the information directly as a witness or is privy to a reliable source. Draper v. United States, 258 U.S. 307, 329 (1959). Because an informant’s tip is invariably hearsay, corroboration of the tip is critical. Smith, 155 N.J. at 95.

[1] This analysis is derived from earlier cases that invoked and applied them as necessary prongs in determining probable cause, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

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If you would like to speak to one of our attorneys about a motion to suppress a stop based upon a tip from a confidential informant contact our firm today. Our attorneys litigate motions to suppress in all New Jersey counties and cities.

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