Long before I got fascinated by legal blogs, I was fascinated by legal novels. Neither is a substitute for receiving actual instruction in the law, but both are cheaper. I’ve learned a few things.
Reading Scott Greenfield’s rant about informants reminded me of A Cinderella Affidavit by Michael Fredrickson. I’m not going to go into the details of the plot—they’re not that important and I can’t really remember them anyway—but the concept of a Cinderella Affidavit has stuck with me.
I don’t know if “Cinderella Affidavit” is common legal jargon or just a catch phrase Fredrickson made up for his book. In any case, here’s how it works: Say you’re a cop working narcotics, and you want to arrest a guy you’re sure is dealing drugs out of a house, but you don’t have any proof. In order to get the probable cause you need for a warrant, you’re going to have to investigate the case, gather evidence, find informants, and try to make a controlled buy. But that’s a lot of hard work, and you might not succeed.
If you aren’t too concerned about lying to a judge (also known as perjury), there’s an easier way: You make it all up. Just start writing out your affidavit and say a confidential informant told you there were drugs. (This also works if you got some information in a way you’re not supposed to, like the Herc and Carver on The Wire attributing all the information from their illegal audio bug to a phantom informant named “Fuzzy” Dunlop). The judge grants the warrant, and you bust into the drug dealer’s place of business and find what you were looking for: The drug dealer and his drugs.
Case closed, pretty much. No one will ever expect to meet the phantom informant. For one thing, most cases never make it to trial, and if there’s no need for a trial, there’s no need for his testimony. If the case does go to trial, the cops can argue that revealing his identity will ruin his value as an informant. If worst comes to worst and somebody insists, the cops can just say they can’t find their informant (which has the advantage of being true). The prosecutor doesn’t really need the informant anyway because he’s got a big pile of drugs he can show off.
On the other hand, if the cops didn’t find any drugs during the raid then the informant isn’t needed because there’s no criminal case. Either way, like Cinderella at the ball, the informant just vanishes from the scene.
Unless something goes wrong.
In A Cinderella Affidavit, a cop gets killed during the drug raid. This brings down a whole lot of attention on just why the cops raided the location and what the informant saw when he was there. It takes a novel for it all to play out.
Knowing what a Cinderella affidavit is turns out to be helpful in understanding a number of real-life stories. For example, when Atlanta cops killed a 92-year old grandmother during a drug raid, a lot of people wanted to know why the cops thought there would be drugs in her house. The resulting federal investigation alleged that although the informant was real, he made his statement after the cops framed him with planted drugs. The cops also allegedly lied about there being security cameras at the house to justify a no-knock warrant. If all had gone according to plan, the problems with the affidavit would probably never have come to light.
Then there’s the drug raid in Cheseapeake, Virginia on the 17th of this month, in which officer Jarrod Shivers was shot and killed, allegedly by the occupant of the house, Ryan Frederick. On their warrant application, police said they had a confidential informant who had seen a marijuana grow operation in the garage. Almost a week after the raid, police finally announced they had found some marijuana in the home, but they wouldn’t say how much. Meanwhile, Frederick says that no one was in his home around the time specified in the affidavit, but there were signs of a break-in. Did the cops raid this guy’s house on the word of a burglar? Did they mention that in the affidavit? Or was that something else that would vanish when the party was over?
I’ve been reading about botched drug raids for a while, and it seems that a non-trivial percentage of them turn out to have problems with the facts asserted by the officers applying for the warrant. Do you think that’s a characteristic of botched drug raids? Or do you think we’d find the same kinds of problems in all the successful drug raids if we ever bothered to look?
All? Certainly not. Many? Certainly; there’s just no reason to believe that various forms of testilying force everything to go sour only when a raid pursuant to a testilied warrant happen.
Among the interesting things about the Atlanta case is that the cops came in with drugs in their car, prepared to flake the place. I think the implications are both obvious and, of course, troubling.
I guess I meant to write something like “do you think we’d find the same rate of problems in all the successful drug raids” instead of what I actually wrote.
As for planting drugs in the Atlanta case, I’ve read allegations that the cops were trying to figure out how to frame Kathryn Johnston as a drug dealer while she was bleeding out on the floor.