Legislature(1995 - 1996)
02/22/1995 01:07 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HJUD - 02/22/95 HB 138 - INFORMANT RELIABILITY/CRIME STOPPERS REPRESENTATIVE GARY L. DAVIS introduced the bill and gave the following Sponsor Statement: "The intent of this bill is clearly identified, so there is an understanding of what the intent of the legislation of reliability of Crime Stopper tips to the same extent that is provided to tips from people who are willing to identify themselves to the police, and the defendant, called `citizen informants.' "In Section 2 search warrants may be issued based on information received from a Crime Stopper organization and confidentiality maintained. This bill will establish one set procedure for all courts to follow in reviewing Crime Stopper reports. "When the court determines a review of the records is allowed the Crime Stopper information involving the identity of an informant is removed. "In Section 3, HB 138 allows the Crime Stopper Organization to be exempt from registration for fund raising. "This legislation provides a means for statutory recognition of the Crime Stoppers organization. "This bill gives the trial courts and the supreme court some guidance relative to the underlying intent when they deliberate on cases coming before them on the issue of reliability of crime stopper informant information." Number 130 PHIL NASH, Chairman, Central Peninsula Crime Stoppers, testified via teleconference. He described the organization as being a nonprofit group that started in 1983. This branch provides for the area of Kenai, Soldotna and Homer. The basic theory of Crime Stoppers, both locally and internationally, is for citizens to volunteer time through a nonprofit corporate structure; facilitating a method of gathering information regarding criminal activity, so the police can use that information to solve crimes without jeopardizing the people who gave the information, or their families. The basic problem at this time stems from a 1973 Supreme Court case, which had to do with arrest warrants. The court said a citizen informant has a degree of reliability that a criminal informant will not have. The theory assumes that there is some kind of honor among thieves. This legislation would not change the arrest warrant issue at all. That is a matter for the court. This bill would give crime stopper informants the same degree of reliability presently given to citizen informants. An important thing to look at is that from a citizen informant, the police must still have certain details, information that must be verified before they can proceed. Some informants do not want to expose themselves and their families to some type of adverse response by a criminal element, by identifying themselves. Number 210 NORMAN STUARD testified via teleconference. He said, "If the system ain't broke, don't fix it." He was against the bill. He felt the current system was working very well. Stating the presumption of reliability of an informant will not be removed from the court documents, lies in the face of the Fourth Amendment, which gives you the right to be faced by your accuser. This will be challenged in the Supreme Courts at a high cost to the state. He wondered about the political affiliation of someone who would support this legislation. REPRESENTATIVE CON BUNDE asked if Mr. Stuard's opinion was base on actual experience or involvement with crime stoppers, giving him a level of expertise, or whether he was just an interested observer. Number 275 MR. STUARD replied no, he had not been involved with crime stoppers. Number 290 REPRESENTATIVE BETTYE DAVIS asked about Mr. Stuard's comment on a person having the right to face his accuser. A lot of the people reporting to crime stoppers do not want to be identified. How then, do you handle that? Number 305 CHAIRMAN PORTER said there would be testimony further describing the elements of self-informant testimony. Number 315 BOB KINTZELE, Legal Investigator, testified via teleconference, that he has worked with numerous criminal defense attorneys and crime stoppers. He explained that the crime stopper program, though said to be a nonprofit organization, is actually operated out of the Kenai Police Department by a paid city employee. It is an agency of the police department. They would like it to be something other than what it is, but they operate out of the police department. They can be held to a different standard, because they call themselves nonprofit. The main motivation for reporting people with marijuana operations, is competition. If someone else wants the business, then they will report the person who is growing it, so they can eliminate the competition. That is not a pure motive. That is greed. The idea is to get a quick search warrant, the police are allowed to do something a little bit too easily, there is opportunity for abuse. That should be looked at real strongly. He could not see any court anywhere allowing this. Number 350 SUSAN ROSS, a paralegal, testified via teleconference and stated that the crime stopper informant reliability was proven unreliable by a study conducted on the Peninsula. Most of the anonymous tips were perpetrated on innocent victims because the information was incorrect. She felt this legislation would cause a shift, where instead of protecting the constitutional rights of the innocent, it would protect the anonymity of the crime stopper informant. She insisted the committee members vote no. Number 430 ARWIN SCHMIDT testified via teleconference. He felt that crime stoppers aids people who have the need to harass other people. He had been turned in to crime stoppers through an anonymous tip, but thought he knew who gave the tip. The police then got a warrant to search his house. Three officers in plain clothes came to break down his door, bringing the National Guard, a four-wheel drive vehicle, and two armored cars with them. His rottweiler could not tell they were cops, and neither could he. The dog almost ate one of them. He could not understand how crime stoppers believe they are doing such a service to the community when they are acting on tips they cannot verify. Number 460 SEYMOUR MILLS, a Sterling resident, testified via teleconference. He pointed out that in the oath of office everyone takes when they go to work for the legislature or any other member of office, they swear to uphold the Constitution. As far as his area of expertise goes, he can read. The United States Constitution is very clear and anyone can read it. Article 4 guarantees against unreasonable searches and seizures, and requires that any warrants issued have to have probable cause. Article 5 guarantees due process against probable cause affidavits. Article 6 gives you the right to be confronted by your accuser. Article 8, says cruel and unusual punishment shall not be inflicted. When someone breaks down your door and puts you in fear of loss of life and property, that is cruel and unusual punishment, when you have never even been convicted of anything. Articles 9 and 10 say all the rights not given to the government belong to the people. Number 500 LEONARD EFTA testified via teleconference that he opposed the bill and would be scared if this legislation passed. Number 505 REPRESENTATIVE BUNDE asked if the people in Kenai were opposed to the crime stoppers in general, as well as the proposed change. The consensus seemed to be that yes, they were opposed to crime stoppers. Number 525 GERALD MCQUEEN, representing Patricia Mann testified via teleconference, describing his experience. He was working last year when policemen came and raided his home. They told his girlfriend their home had been under surveillance for the last year and a half, and that they had an arrest and search warrant for this particular individual who no longer lived there. She told the gentleman that individual no longer lived there, and had not lived there for some time. He was particularly persistent, in the fact that she asked for a search warrant and there was no search warrant. He intimidated her to the point where she finally let him into the house with the purpose to search their basement. His concern was that the police had no idea what was going on. If there had been surveillance on their home for the last year and a half, they would have noticed somebody had moved out eight months ago, and that they were living in there now. The vehicles are completely different and he is now paying the taxes and utility bills as well. Their investigation was not only negligent, but preposterous that they even had one. He found it hard to believe his house had been under surveillance for a year and a half, and they had not even noticed someone had moved to a different residence. He said he can hardly leave his girlfriend at home to go to work anymore, or she goes into hysteria. Without a legitimate signed affidavit with a witness and evidence, these searches are preposterous. They invade people's privacy. His girlfriend is now scared and intimidated by our own legal system. He called the police officer's superior who informed him this was a crime stopper tip, and that his house had not been under surveillance. The cop had told out and out blatant lies. This legislation leaves the cops open to do whatever they want, and then cover it up later under a crime stopper bill. Number 575 BARBARA BRINK, Deputy Director, Alaska Court System, Public Defender Agency, testified via teleconference. She said she had a great deal of experience with search warrants she wished to share with the committee. This bill is not only constitutionally defective, it is really a bad idea. Citizens have the right to privacy, and the right to be free from intrusions and searches by the police. They may come into your home when they have a search warrant. The procedure to obtain a search warrant is very simple. The police go to a neutral person, a magistrate, and provide whatever information they have to show there is probable cause to believe the person is involved in criminal activity, and that the evidence of that particular crime will be found at that location. That is a pretty low standard of proof they have to show, that "probably" there is some evidence there. Search warrants are routinely granted. People who identify themselves can be presumed reliable. We do not want to permit searches when the information is unreliable, false, incorrect, or unsubstantiated, or motivated by some desire to wrongly accuse someone, or to make some sort of profit. It is not too much to ask that the information be provided in a reliable way. This bill defies common sense. As the law stands now, confidentiality of a witness can be granted if the state has good reason. REPRESENTATIVE BUNDE asked if the courts have allowed an anonymous tip to be the basis for a search warrant. MS. BRINK answered absolutely. Anonymous tipsters sometimes want to remain anonymous. All that needs to be shown is that the person has a basis for the information they are giving, and that if they are a criminal person, their information is reliable. That is all they have to show, and it can be established by showing a lot of detailed corroboration. Search warrants based on anonymous tips are upheld all the time. Number 700 RANDALL BURNS, Executive Director, Alaska Civil Liberties Union (ACLU), testified via teleconference that he felt the testimony given by Kenai residents to be indicative of the ACLU's concerns. He was concerned about taking the informant reliability decision away from the magistrate or judge. Removing that check by the nonpartisan entity would be unconstitutional. The police should not be in the position of making a credibility determination. Another concern is the question of requiring an order to find out the evidence in the basis of a search warrant. A right of confrontation requires that a defendant know his or her accuser and be able to defend against the charges. The ACLU believes they should have to ask the court for that information. He asked that the committee not pass this bill. Number 720 JAMES MESSICK, Crime Prevention Specialist, Wasilla Police Department, testified via teleconference. He has served on the Crime Stoppers Board and was in full support of the bill. He felt the objections to it reflect a misunderstanding of how crime stoppers works. It is typically not part of a law enforcement agency. It is intended to be made up of citizens within the community. No one wants to support a bill that would allow abuses by the police officers. This program has proven to be one of the most cost effective ways for law enforcement to obtain information they would not otherwise be able to obtain. As far as giving a tip with a wrong motive, there are those wanting to get rid of their grow operation competitors, but most of the calls received are from people who simply do not want to get involved. If this bill has defects, fix them, but then move onward. Number 765 REPRESENTATIVE FINKELSTEIN asked Mr. Messick what problems they are trying to fix regarding crime stoppers in the Mat-Su area. Number 775 WILLETT BUSHNELL, President of Mat-Su Crime Stoppers, Wasilla, testified via teleconference. He said they had challenges where they would try to subpoena crime stopper records and notes that are taken when a call comes in. They also try to obtain computer records containing statistics and so forth. There are Alaska Court cases on these issues in which they have prevailed. However, they have also had to have extreme cooperation by the prosecutors. In several cases where defense attorneys have subpoenaed our records, prosecutors have dropped the case, rather than endangering the informant or the crime stopper program. Because of that technicality, they support this bill. Crime stopper legislation has been passed in 14 states and in Guam. Crime stoppers tries to overcome the attitude of apathy by offering rewards. Last year, through this program, they recovered $76,000 in stolen property and $4,000,000 in narcotics; $8,500 in fines were levied, we had 50 arrests, and closed 82 cases. We offered $10,400 in rewards, and only paid out 30 percent of that. Most people that call in with tips do not want the reward money. All of this was done with no tax dollars. He supports the bill. Number 850 CAPTAIN TED RUDDELL, Department of Public Safety, Division of Fish and Wildlife Protection, testified via teleconference. He noted he was not scheduled to speak on the official position of the Department of Public Safety on this bill, but was available for questions on the Division of Fish and Wildlife's program which is similar to the crime stopper program. It is called the Alaska Fish and Wildlife Safeguard Program, and it is like a crime stopper program. Number 855 REPRESENTATIVE FINKELSTEIN asked if this program was under the Department of Public Safety. MR. RUDDELL said no. The program was a private nonprofit organization dedicated to promoting statewide fish and wildlife protection. It has been going on since 1984 and has a 24-hour toll free hot line. They have worked over 2,000 cases since 1984 on information received over this hot line. TAPE 95-15, SIDE B Number 000 REPRESENTATIVE FINKELSTEIN asked Mr. Ruddell if they were just as able to take advantage of anonymous tips that get called to that organization, as if they were called to normal state law enforcement agencies. Are you able to make good use of these anonymous tips? Number 030 MR. RUDDELL answered yes, they are. They use the same standard of verifying information, initiating where Fish and Wildlife Troopers need to respond at a given time. It provides a little bit of security for people who are reluctant to go through the normal hot line. This 24-hour hot line is gaining nationwide popularity. Number 080 REPRESENTATIVE FINKELSTEIN asked if they have, in general, had success in getting search warrants based on these anonymous tips. Number 085 MR. RUDDELL answered the number of search warrants they have obtained based on these anonymous tips has been very small, but each time, the information was not critical in obtaining a search warrant. What the information did was direct the efforts of the officers to obtain more probable cause, in order to get the search warrant. Number 100 REPRESENTATIVE BUNDE asked if a lot of these anonymous situations arose out of revenge motives. Number 115 MR. RUDDELL thought that there was revenge in a very few cases involving divorce. Number 200 DEAN GUANELI, Assistant Attorney General, Department of Law, echoed a number of comments of people who spoke in support of crime stoppers organizations. In many instances they do perform a public service. There a lot of people who do not want to get involved in the criminal justice system and are afraid of retaliation if they were to report a crime. Unfortunately, we live in a society where retaliation for honest citizens for reporting crimes is all too common. Because of that, people who use crime stoppers organizations expect anonymity, and sometimes refuse to give their names. It seemed that to the extent that the courts are imposing rules upon this kind of information, it is probably based on the Fourth Amendment to the United States Constitution, or the comparable provision of the Alaska Constitution. To the extent that it is constitutionally based, there is a question whether the legislature can change the rules of presumption the courts apply in assessing this type of evidence. This ought to be looked at more carefully. He wondered whether they could do, constitutionally, what is proposed in this provision about search warrants. Having said that, however, once the court hears the information that is provided anonymously, and tests that information with whatever standard the court believes is constitutionally required, and then decides that information passes that test, and that the court can legitimately issue a search warrant based on that information; at that point, the police have done all they can do. They have presented the information they have to the judge, the judge has made a ruling, has issued a warrant, which is what our Constitution requires, and the police go out and find some evidence. At that point, you start to wonder how relevant it is who that informant is, what that person's motives were, and you start to wonder whether a defendant ought to be allowed to have that identity and information divulged; because the reason for getting a search warrant is to prevent the police from abusing the Constitution; to force the police to go through the method our Constitution sets out for searching people's property. Once they have done all that, you have to wonder whether the policies that support the crime stoppers organizations outweigh a defendant's opportunity to go in and find out who this person was. It is not really an issue of your right to confront your accusers. Your accuser is the police officer who found marijuana growing in your basement, not the person who detected the odor of marijuana while walking past your house. Number 340 REPRESENTATIVE TOOHEY asked if anonymity would be up to the individual providing the information, or up to the police. CHAIRMAN PORTER said the common practice is to grant anonymity to a witness to the extent that they can proceed with the case. If they come up against a situation where they do not have enough verifying information or details to justify a search warrant or arrest; they would come back to you and say they have two steps, but need three. The only way to get three steps, is if you give your name. If you say no, the case is dismissed. Number 380 REPRESENTATIVE FINKELSTEIN asked what the current procedure is. When an anonymous tip comes in, do they try to verify what they consider a sufficient amount of details? Number 390 MR. GUANELI said if there is an anonymous tip, the police have to try to collaborate some of that information. The level of collaboration they need to come up with may vary from judge to judge, but he was not certain how some of the details of this language fit into the current test. Number 430 CHAIRMAN PORTER said he has been involved with crime stoppers for a number of years, and they serve a very good purpose. They have demonstrated their success all over the country. The bill in front of us asks for an additional consideration towards the crime stoppers program, that does present some constitutional problems. He wanted Anne Carpeneti and Dean Guaneli to get together with the sponsor to see if they could shape some of this language to get away from the constitutional problem that exists in terms of lowering the standard for informant evidence. That would not make it, and it would not be in anybody's best interest to pass a bill out that would not meet the constitutional challenge. REPRESENTATIVE GARY DAVIS appreciated the concerns and did not intend to usurp any constitutional rights. He appreciated the recommendation, and intended to pursue that.
| Document Name | Date/Time | Subjects |
|---|