The Use of Minors as Confidential Informants

Serving as a confidential informant can be dangerous, whether the informant is an adult or underage. As to minors working as informants, the International Association of Chiefs of Police recounts a cautionary tale:

In 1998, police in California arrested [17-year-old Chad] MacDonald on drug charges. He agreed to act as a CI, wearing a recording device during at least one drug buy and providing police with information about local drug trafficking. A short time later, he was found dead in an alley, apparently tortured and strangled, and his girlfriend was found raped and shot to death in a canyon. MacDonald’s death was believed to have been the result of his association with law enforcement as a CI.

Bearing these risks in mind, is it lawful for police to use minors as confidential informants? Is it a good idea? This post explores the topic.

Why police use juvenile informants. Police often use minors as informants when investigating criminal activity committed by minors or involving minors. For example, a juvenile informant has a better chance of infiltrating a teenage gang than a 30-year-old detective does. Similarly, if someone is suspected of selling drugs, alcohol, or tobacco to young people, a minor is more likely than an adult to succeed in posing as a potential purchaser.

Concerns. As noted above, working as a CI can be dangerous. Juveniles, whose brains are not fully developed, do not weigh risks as carefully as adults do. They may also be less aware of the dangers inherent in being a CI. Furthermore, a common way to recruit a CI is to offer a person who is in legal trouble the opportunity to “work off” his or her charges by serving as an informant. Minors may be particularly vulnerable to the power imbalance and risk of coercion inherent in such an interaction.

Statutes. A few states have enacted statutes that limit the use of minors as confidential informants. In each instance, the legislation followed a tragic incident in which an informant died.

• In California, Penal Code § 701.5 was enacted after Chad MacDonald was murdered. It provides that children under 13 may not serve as informants, while older children may be used only with parental consent and after a court conducts a hearing into the voluntariness of the decision. (Children may be used as informants without court approval in tobacco enforcement operations.)
• In Florida, Stat. § 914.28 requires that agencies adopt policies regarding the use of informants that mandate the disclosure of the risks and benefits of service as a CI. Agencies must also consider the “person’s age and maturity” before working with an informant. The statute is known as Rachel’s Law because it was enacted after the murder of a young woman named Rachel Hoffman while she was working as a CI.
• In North Dakota, after 20-year-old Andrew Sadek died while working as an informant, the legislature enacted D. Stat. § 29-29.5-02. It prohibits using juveniles under age 15 as informants and allows older juveniles to be used only if “[t]here are no other reasonable avenues to obtain evidence of the crime being investigated,” “the risk of harm to the juvenile is minimal,” the “juvenile’s custodial parent or guardian has signed the informant agreement,” and “[t]he juvenile has consulted with legal counsel.”

Although not a statute, in New Jersey, the Attorney General has issued a policy that prohibits the use of juveniles under age 12 as informants and that states that in “most cases,” juveniles under the age of 16 should not serve as informants.

North Carolina does not have a statute or statewide policy addressing the use of juveniles as informants. If readers are aware of other states with laws focused on this issue, please let me know.

Court opinions. The propriety of using minors as informants does not seem to have been litigated much in criminal or juvenile court. Thay may be because a criminal or juvenile defendant would not have standing to contest the use of a juvenile as an informant. One criminal case in which the issue was addressed is Stampley v. State, 749 So.2d 1218 (Miss. Ct. App. 1997), where the court stated simply that there is “no prohibition against the use of juveniles [as informants] in criminal investigations.”

Legal challenges to the use of minors as informants have arisen more often in civil court, typically after a young informant has suffered some harm. The civil cases I saw raised a number of claims, from negligence to a deprivation of due process under 42 U.S.C. § 1983. Here are three examples:

• In Carter v. Louisville Metropolitan Police Department, 2023 WL 5986137 (W.D. Ky. Sept. 14, 2023), the mother of a juvenile who was killed while acting as an informant sued, alleging that the city (specifically, the police department) failed to “highlight[] the dangers presented to minors by their use as confidential informants,” failed to take “the increased safety measures necessary when minors are used in such a capacity,” and declined to obtain “parental input and consent when minors are used in such confidential informant operations.” The court essentially determined that the plaintiff had failed to allege that the city was or should have been aware of any problems in that regard and therefore granted the city’s motion to dismiss.
• In Leighliter v. City of Connellsville, 2018 WL 6812496 (W.D. Pa. Dec. 27, 2018) (unpublished), the court considered allegations that an officer had recruited a 15-year-old girl as a confidential informant, then proceeded to pressure her into sexual activity with him. The court noted that “Plaintiff has cited no authority to support that it is a violation of federal law or a Constitutional right for Plaintiff to be used, in any capacity, as a confidential informant because of her status as a juvenile,” but also noted the lack of any policies concerning the use of juvenile informants. Based on the lack of safeguards, the court allowed some (though not all) of the plaintiff’s various claims to proceed.
• In MacDonald v. City of Brea Police Dept., 2002 WL 1650018 (Cal. Ct. App. July 23, 2002) (unpublished), which arose out of the death of Chad MacDonald, the appellate court ruled (1) that a release signed by MacDonald did not necessarily bar recovery because it was “signed under duress,” by a minor, and did not clearly indicate the risks of working as a CI, and (2) that it was at least debatable whether, in taking MacDonald on as a CI, the police formed a “special relationship” with him that gave rise to a duty to protect him from harm. The court therefore denied summary judgment and allowed the case to proceed. (A news report indicates that the case subsequently settled for $1 million.)

Agency policies. Many law enforcement agencies have policies about the use of juveniles as informants. Here are the pertinent policies of a few North Carolina agencies:

• The Greensboro Police Department prohibits the use of informants under age 13. Older juveniles may work as informants only with a court order and approval of the juvenile’s parent(s) or guardian(s) and attorney, if any.
• UNC – Greensboro’s campus police department provides that “[n]o person under the age of eighteen will be used as an informant without the approval of the Chief of Police and the approval of the juvenile’s parents or legal guardians.”
• The Asheville Police Department states that “[n]o informant under the age of eighteen (18) years of age will be used for any reason.”
• The Apex Police Department states that “[p]ersons under 18 years of age may be used as restricted-use informants, only with the written consent of their parent or legal guardian, unless they have been emancipated.” Further, “[p]ersons under 16 years of age will not be used for any undercover activities without the written approval of the Chief of Police.”

Agencies that seek accreditation through the North Carolina Law Enforcement Accreditation Program are required to have a written policy concerning informants. The NCLEA Program Guide states that the policy must provide that “[s]pecial precautions shall be taken with juvenile informants.” It does not say what the special precautions should be.

Discussion. Existing legal authority permits the use of juveniles as confidential informants. Some juveniles may become informants willingly and with their eyes wide open. Not all young people are naïve, and some minors who become informants have previously been involved in extensive and sophisticated unlawful activity.

Still, juveniles as a group differ from adults in life experience, decision-making skills, and the ability to resist social pressures. Officers and agencies should bear in mind the risk of civil litigation and loss of community trust if something happens to a minor working as an informant. In particular, agencies should be extremely cautious about involving a juvenile informant in drug trafficking or other criminal activity that carries a substantial risk of violence.

Agency policies that may reduce the risk of a catastrophic outcome include:

• Requiring that the risks of being an informant are disclosed in writing.
• Requiring that a parent or guardian agrees before a juvenile begins work as an informant. (I am not an expert in contract law, but it may be worth noting that most contracts entered into by children are voidable. See, e.g., Creech ex rel. Creech v. Melnik, 147 N.C. App. 471 (2001).)
• Requiring that a supervisor review the suitability of any proposed juvenile informant.
• Requiring that minors be used as informants only when no other investigative technique is feasible and when there is a strong public interest in using an informant to further the investigation.
• Setting limits on the type and duration of work that a juvenile informant will do.

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