September 15, 2012, by Attorney Christian T. Souza
By Attorney Christian T. Souza on September 15, 2012 12:04 PM |

This week the Texas Court of Criminal Appeals held in a cocaine case out of San Antonio that Bexar County prosecutors could not use the cocaine to convict the defendant since there was no probable cause for a magistrate to authorize the search that resulted in the discovery of the cocaine. The search warrant was based on an insufficiently corroborated tip from a confidential informant of unknown reliability.

The information was unreliable because it was derived entirely from hearsay statements from a first-time confidential informant who was seeking leniency on his pending criminal charges. For an informant's reliability to be adequately shown, it must be somewhat corroborated. Common corroborating factors include: a portion of the information being against the informant's own interest, the same information being provided by other informants, accurate predictions about the target's behavior, or first-hand observations by law enforcement. In this week's case, the only corroboration came from the police confirming that the target lived at the address indicated by the informant.

The very well written decision, which was delivered without dissent, seemed unnecessary, since the law in this area has been basically agreed about for years. The Court of Criminal Appeals acted to correct serious error in the lower appellate court, and took the opportunity to remind officers not to get so over-eager as to request warrants based on the bare assertions of first-time confidential informants. The magistrates who grant police warrant applications should exercise their power to reject the type of application in question, since the police can simply re-apply after additional investigation.