Can a confidential informant sell you actual drugs for personal use small quantity and have the police arrest you at a later date?

UPDATED: Oct 1, 2022

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Can a confidential informant sell you actual drugs for personal use small quantity and have the police arrest you at a later date?

Can a confidential informant sell you actual drugs for your own personal use small quantity, and have the police arrest you at a later date? Basically, I heard a drug dealer was being watched by the police. Could that drug dealer be allowed to sell actual drugs to a person and then tell the police, which would lead to the arrest of the buyer at a later date? Basically, this would be the opposite of what is known as a controlled buy. How typical is this type of situation? And since there would be no physical evidence of the drugs would this scenario even be possible to prosecute or worth the time of the police to intervene?

Asked on August 25, 2017 under Criminal Law, West Virginia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Forget about all the times you watched a suspect claim entrapment as a criminal defendant. Yes, confidential informants can and do sell drugs, and then their buyers may be arrested and charged with drug possession. This is one of the things the police use CIs for.

While the CI could him/herself also be prosecuted for drug possession (and distribution) if the police or prosecutor wanted, that does not change the fact that his/her buyers are criminally liable for the drugs they bought. As for whether that is worth the authorities' time or effort--that depends on this police dept, the prosecutors, and what they personally think is worth pursuing. In some cases, their goal is to get more police informants to catch bigger fish. In other cases, they arrest and charge low level users.

Will Suspects Find Out The Identity of Informant in Their Case?

Depending on the size of the case and the informant, government agencies may ask the informant to testify in open court. In most cases, they try to make deals early on, avoiding being in court at all. Criminal defense attorneys review the evidence and advise their clients on their best options. Ultimately, it's up to the client to decide how they want to move forward.

In certain high profile cases, law enforcement agencies may take steps to protect the identity of informants. This is a way to ensure they can still use them to filter through criminal activity in the future. In the United States, defendants generally have the right to confront their accusers. So if it comes down to it and the suspect doesn't already know who it is, they may be asked to out themselves by testifying.

Will Confidential Informants Be Prosecuted for Selling Drugs?

As long as they are acting as agents of the police, they will not likely be prosecuted just as law enforcement officers going undercover wouldn't be charged. They're doing a job to help the authorities. As long as they stay within the legal bounds they're advised to follow, criminal charges are unlikely.

For this and other reasons, defendants will not get better deals for turning on informants. If your local police have a target in mind and they believe you can help catch them, they will approach you.

Whatever your situation with government agents and informants, our best suggestion is to keep your nose clean. Try to avoid situations in which you could be a target of criminal intelligence gathering. If you are arrested, exercise your right to remain silent and call criminal defense lawyers to represent you.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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