BILL ANALYSIS
AB 2816
Page 1
Date of Hearing: June 30, 1998
Counsel: David Hendren
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Don Perata, Chair
AB 2816 (Baugh) - As Amended: June 26, 1998
SUMMARY : Provides no law enforcement or correctional official
can use a person under the age of 15 years as a police informant
nor can such an official use a person 15- through 17-years-old as
a police informant without judicial advisement, the consent of a
judicial officer and the consent of the minor's parent or
guardian, but allows 15- through 17-year-olds to be used in
connection with the Stop Tobacco Access to Kids Enforcement Act
(Stop Act). Specifically, this bill :
1) Provides no law enforcement or correctional official can use
a minor under the age of 15 years as a police informant.
2) Provides no law enforcement or correctional official can use
a minor ages 15 through 17 as a police informant, except for
the purposes of the Stop Act, unless a judicial officer
explains the minor's options and the nature of the minor's
participation as a police informant, and both the judicial
officer and the minor's parent or guardian consent to the use
of the minor as a police informant.
3) Provides if the minor's parent or guardian is a suspect in
the investigation, or when the official shows exigent
circumstances, a judicial officer's consent alone will be
sufficient.
4) Provides there is no exception to this section when the minor
is participating in a transaction, as defined, for the
purpose of reducing or dismissing a pending criminal
prosecution against the minor.
5) Defines "police informant" as a minor who participates, on
behalf of a law enforcement agency, in a prearranged
transaction or series of prearranged transactions with direct
face-to-face contact with a third party, when the minor's
participation in the transaction is for the purpose of
obtaining or attempting to obtain evidence of illegal
activity by the third party.
6) Contains an urgency clause.
EXISTING LAW :
1) Defines an "in-custody informant" as a person, other than a
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co-defendant, percipient witness, accomplice, or
co-conspirator whose testimony is based on statements made by
the defendant while both the defendant and the informant are
held within a correctional institution. (Penal Code Section
1127a(a).)
2) Provides a specific jury instruction that must be read to the
jury when an in-custody informant testifies as a witness,
admonishing the jury to view such testimony with caution, and
provides the prosecution must contemporaneously file with the
court a written statement detailing all consideration
promised to, or received by, the in-custody informant.
(Penal Code Section 1127a.)
3) Provides no law enforcement or correctional official can
give, offer, or promise to give any monetary payment in
excess of $50 in return for an in-custody informant's
testimony in any criminal proceedings, but makes exceptions
for payment of lodging, housing, relocation expenses, phone
calls, travel, or authorized witness fees. (Penal Code
Section 4001.1(a).)
4) Provides no law enforcement agency and no in-custody
informant acting as an agent for the agency may take some
action beyond merely listening to statements of a defendant
deliberately designed to elicit incriminating remarks.
(Penal Code Section 4001.1(b).)
COMMENTS :
1) Author's Statement . According to the author, "Whether or
not coercion is used on a minor to persuade him or her to serve
as an informant, we should not be asking teenagers to step in
harm's way to compensate for society's failure to interdict drug
trafficking or to successfully prosecute drug dealers using more
traditional law enforcement techniques. We should not use minors
in situations where they can be harmed or killed."
2) Use of Juveniles As Informants . Many law enforcement
agencies will not consider using a minor as an informant
because of civil liability and significant parental issues.
Knowledge and consent of parents or guardians are typically
required when minors are used. Some complications include
the parents' criminal record, pending cases and ties,
custodial problems and maintaining contact with minors moved
among an extended family, and minors subject to a
guardianship or conservatorship.
3) Types of Informants . There are a wide variety of informants,
including a person who knowingly provides information to a
law enforcement agency related to another person's criminal
activity whose motivations for doing so are other than that
of an uninvolved witness, victim, or private citizen
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primarily acting through a sense of civic responsibility, and
who, as a general rule but not necessarily, expects some form
of benefit or advantage for himself, herself, or another
person in return. Informants include all of the following:
a) Active Unpaid Informants . Active unpaid informants are
anonymous or citizen informants who frequently provide
information or volunteer their efforts to police agencies,
usually without any form of compensation.
b) Paid Informants . A paid informant is an individual who
receives money from law enforcement in return for
information regarding criminal activity.
c) Defendant Informants . A defendant informant is a person
who is or might be prosecuted. The informant may provide
information about criminal activity in which he or she was
or is engaged or may simply identify others involved in
unrelated criminal activity.
d) In-Custody Informants . An in-custody informant is an
inmate in custody who provides information or testifies
about matters another defendant told him or her while both
were in custody. The testimony of such an informant is
subject to strict controls in various Penal Code sections.
4) Types of Benefits to Informants . Benefits to an informant
can include any consideration or advantage the informant was
offered, promised, or received in exchange for the
information provided whether the benefit was for the
informant or another at the informant's request.
Among other things, these benefits include financial benefits
such as monetary payments, including but not limited to, room
and board or use of an automobile; leniency shown in arrest
or booking; requesting appropriate bail or contesting the
source of the bail; leniency shown in filing or not filing
appropriate charges or enhancements; delay in arraignment or
other court dates; reduction of charges; period of custody;
condition of probation or sentence, including favorable input
by a law enforcement representative; relocation of the
informant or his or her family; immunity; or favorable action
with other governmental agencies, such as the Internal
Revenue Service, Immigration Naturalization Service, Child
Services, civil courts, or private interests such as
employers.
5) Unanticipated Consequences of a Blanket No Exceptions Rule .
The bill does not provide for any exceptions to this bill's
blanket rule precluding law enforcement's use of minors under
15 years of age. Such a blanket rule may have unanticipated
consequences. Every law enforcement situation cannot be
anticipated and this rule could restrict law enforcement in
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some situations.
There may be a situation where an crime, such as murder, is
committed and the only way one or more of the perpetrators
can be caught or prosecuted is through the use of a
14-year-old informant as defined in this bill. If such a
situation occurs and the judge, parents, defense attorney,
prosecutor, and police all agree the minor can be used as an
informant with great safety, this bill precludes such a use
despite all parties' agreement.
6) Example . For example, assume three juveniles commit a
drive-by shooting and kill several people. A 16-year-old is
driving, a 15-year-old is the front-seat passenger and
shooter, and a 14-year-old is the rear-seat passenger who did
not have any weapon. Assume the eyewitnesses can only
identify the rear-seat passenger and no one else. The police
speak to the 14-year-old, who tells the police what happened.
There are a variety of reasons why the 14-year-old's
statement will not convict the shooter and, therefore, why
law enforcement may need to use the 14-year-old as an
informant, such as when the 14-year-old and the shooter are
housed together at the juvenile facility.
First, the 14-year-old's statement cannot be admitted against
the shooter in a joint trial. (See generally, Bruton v.
United States (1969) 391 U.S. 123; People v. Aranda (1965) 63
Cal.2d 518.)
Second, even if there are separate trials, the 14-year-old
informant will not want to say anything at the shooter's
trial if the shooter's trial is held first as whatever the
14-year-old says can later be used against the 14-year-old at
the 14-year-old's trial. Thus, the 14-year-old may invoke
his or her Fifth Amendment privilege against
self-incrimination. Even if the 14-year-old's trial is held
first, his or her appellate rights may not have run before
the shooter's trial and, thus, the 14-year-old may still
invoke his or her Fifth Amendment privilege against
self-incrimination.
Third, even if the 14-year-old's statement is somehow
admitted against the shooter at the shooter's separate trial,
the 14-year-old's statement will be insufficient by itself as
a matter of law to convict the shooter. ( People v. Bevins
(1960) 54 Cal.2d 71, 76.) Furthermore, the jury will be
instructed to view the 14-year-old's testimony with distrust.
(California Jury Instructions Criminal 3.18 (January,
1998).)
Consequently, the only way law enforcement will be able to
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convict the shooter (and the driver) is if they can obtain
some other proof apart from the 14-year-old's statement. The
14-year-old may be housed at juvenile hall with his or her
former accomplices and may be willing to persuade the
accomplices to talk to another juvenile, wear a body wire, or
something else allowing law enforcement to prove the crime.
However, under this bill, such action is not possible and the
shooter and driver would likely not be convicted.
SHOULD LAW ENFORCEMENT BE ABLE TO USE A MINOR TO APPREHEND A
PERSON WHO VIOLATES THE STOP TOBACCO ACCESS TO KIDS
ENFORCEMENT ACT AND NOT APPREHEND A PERSON WHO COMMITS
MURDER?
7) Requiring Judicial Consent Protects Against Potential
Over-Zealousness . Individual law enforcement officials can
become over-zealous when using minor informants. However, by
requiring the approval of both the judge and a parent or
guardian, any potential over-zealousness by law enforcement
is balanced by other persons protecting the interests of the
child. Such protections should be sufficient for a minor of
any age.
SHOULD THE BILL BE AMENDED TO ELIMINATE THE PHRASE "NO LAW
ENFORCEMENT OR CORRECTIONAL OFFICIAL SHALL USE A PERSON UNDER
THE AGE OF 15 YEARS AS A POLICE INFORMANT"?
8) Does this Bill Address the Situation which Precipitated this
Bill ? This bill was introduced in response to an incident in
Southern California where 17-year-old Chad MacDonald was used
as a narcotic informant by the Brea Police Department.
According to newspaper reports, MacDonald was in possession
of approximately 11 grams of methamphetamine on January 6,
1998 when he was arrested and signed a written waiver, which
his mother also signed, agreeing to work as an informant for
the Brea Police Department. MacDonald made one
methamphetamine buy while detectives monitored.
Subsequently, MacDonald was arrested a second time on the
evening of February 19, when he was found to be in possession
of two grams of methamphetamine. MacDonald spoke with the
detective who had been working with MacDonald. Brea police
state the detective told MacDonald that day that MacDonald
could no longer work as an informant because of the second
methamphetamine arrest.
On March 1, 1998, MacDonald apparently went to a Norwalk home
known for drug and gang activity, was tortured and strangled;
his girlfriend as raped and shot, but survived.
There were no police present and police state MacDonald was
acting completely on his own. The signed consent form
MacDonald signed stated, "I fully understand that I am not to
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participate in any investigations of any criminal activities,
unless the investigation is being directly supervised by a
sworn member of the Brea Police Department."
Thus, even if this bill were in effect at the time MacDonald
reached his agreement with the Brea Police Department, it
does not appear this bill would have prevented the incident
where MacDonald was killed. MacDonald and his mother had
both signed a consent form which stated MacDonald should not
do any investigating unless directly supervised by Brea
Police members and MacDonald did not appear to be working
with any member of the Brea Police Department the day he was
killed.
9) Suggested Amendments .
a) Limit the Bill's Applicability to Drug Crimes . The author
states that police should not be asking teenagers to step
in harm's way to compensate for society's failure to
interdict drug trafficking or to successfully prosecute
drug dealers using more traditional law enforcement
techniques. If that is the author's concern, perhaps the
bill should be limited to precluding the use of minor
informants for purposes of enforcing drug laws, except
with judicial and parental approval. This amendment
eliminates the unanticipated consequence of precluding an
apprehension of, or prosecution for, much more serious or
violent crimes.
SHOULD THE BILL'S SCOPE BE LIMITED TO LAW ENFORCEMENT'S
USE OF MINOR INFORMANTS TO ENFORCE DRUG LAWS?
b) Deleting the Blanket Rule Regarding Minors Under Age 15 .
As discussed above, the author may consider eliminating
the blanket rule of precluding any use of persons under
age 15, regardless of parental or judicial consent.
c) Modifying Definition of "Police Informant" .
Theoretically, the victim of a crime could be considered
an informant under this bill's definition. This problem
could be eliminated by inserting "'Police informant' shall
not include a victim of an offense." into the definition.
d) Clarifying "On Behalf of Law Enforcement" . The bill
provides a minor cannot participate as an informant "on
behalf of a law enforcement agency." Does this mean the
law enforcement official must have requested the meeting?
If so, should this bill state that? If not, how is it
determined whether the minor is participating "on behalf
of a law enforcement agency"?
As may have been the case in the Chad MacDonald incident,
what if the minor acts on his or her own without law
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enforcement authorization, with the hope of obtaining some
evidence incriminating a third party that could lead to a
reduction or dismissal of charges or a reduced sentence
against the minor? Are the police then precluded from
using such information gained from the minor even though
the police may not have known, or requested, such
activity?
Should the bill define "'police informant' as a minor who
participates, on behalf of a law enforcement agency and at
the request of a law enforcement official, in a
prearranged transaction..."?
SHOULD THIS BE DONE?
e) Clarifying Face-to-Face Contact . With the advent of
electronic devices such as computers which permit persons to
see each other on video screens despite being far away in
distance, perhaps the bill could be further clarified by
including the phrase "direct in-person face-to-face contact"
in the definition of a police informant rather than simply
"direct face-to-face contact".
10) Arguments in Opposition .
a) San Diego County District Attorney's Office . According
to the San Diego County District Attorney's Office, "The bill
states as its primary goal, to ensure that minors are no
longer placed in a position of danger by being used as
informants. Unfortunately, by identifying a specific group
of individuals who can no longer be used as informants, the
bill creates a group from which criminal organizations will
draft their criminal employees.
"One of the main concerns of any organized criminal
enterprise is lack of trust in their own people. This
legislation would identify for these criminal
organizations a specific group of people who, by statute,
will never be allowed to turn on them. Minors will be
sought out and recruited for participation in dangerous
drug dealing by criminals, because those same criminals
know that law enforcement cannot use minors as informants.
"We believe that minors who provide information to law
enforcement deserve protection. But AB 2816 will not
ensure that minors are no longer in danger; in fact, the
bill, if it becomes law, would unintentionally expose
minors to great danger. For that reason, we must oppose
this legislation."
b) California State Sheriff's Association . According to the
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California State Sheriffs' Association, "Law enforcement
agencies and officers presently use minors as informants in
many instances to get evidence. They are used to identify
drug pushers at a higher level than the person who sells on
the street; in domestic violence and elder abuse cases;
identifying illegal liquor and cigarette sales, etc.
"As drafted, your bill would totally eliminate the use of
this valuable resource to get information on many crimes.
It is possible this legislation would also eliminate the
use of minors as witnesses in proceedings where the minor
was the informant."
REGISTERED SUPPORT/OPPOSITION :
Support
None on file
Opposition
California State Sheriffs' Association
San Diego County District Attorney's Office
Analysis prepared by : David Hendren / apubs / (916) 319-3744