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Utah police policies vary on use of undocumented immigrants as informants

Published May 28, 2013 11:21 am

Crime • Utah police policies vary on using undocumented immigrants to build cases.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

When the woman was pulled over by police, they discovered drugs inside her vehicle.

But officers also discovered something else — she was an undocumented immigrant.

The officer then allegedly told the woman she had 72 hours to become a confidential informant or he would report her to the U.S. Immigration and Customs Enforcement, the woman later told Tony Yapias, director of Proyecto Latino de Utah.

Yapias said he has heard stories of officers using immigration status as a "means to extort information" and force people to work to become confidential informants.

"I don't believe using someone's legal immigration status should be used to get information," he said. "Of course, it makes [those people] more vulnerable."

After West Valley City leaders revealed recently that an internal investigation showed some members of its now-disbanded Neighborhood Narcotics Unit improperly used confidential informants, some of whom may have been undocumented immigrants, The Salt Lake Tribune filed open-records requests with the state's four largest police departments for policies on using confidential informants. The newspaper also filed a federal Freedom of Information request for the DEA's policy, although the agency has not yet responded.

In large part, the Utah police departments' policies are similar, but they differ on the use of undocumented immigrants.

On one end of the spectrum is Salt Lake City, which prohibits even asking individuals whether they're in the country legally. On the other end, Unified Police policy prohibits use of undocumented immigrants as confidential informants. West Valley City falls in the middle — use of undocumented immigrants as informants is decided on a case-by-case basis, but any informant needs to be first cleared with immigration and citizenship services . The Department of Public Safety has no written policy. Officials with that agency said they don't typically use confidential informants.

Ultimately, it's up to individual police departments to set policy on using confidential informants, said Sim Gill, Salt Lake County district attorney. But his office must approve offers of reduced charges, leniency or other issues.

Using undocumented immigrants as informants creates an issue of veracity, Gill said.

"He's already violating the law," he said of such immigrants. "I'm going to always be looking at every witness who is testifying — how can their veracity be compromised? Are they doing this because this is the truth or because they're compromised?"

He said his staff must ensure officers aren't coercing informants. Prosecutors don't want a witness to come forward in the middle of a trial and drop a bombshell, saying they were coerced, mistreated or promised something in return for their cooperation.

Unified Police, which serves unincorporated Salt Lake County and a number of cities in the valley, has a long-standing written policy prohibiting the use of undocumented immigrants. That policy can only be overturned by a supervisor in the rare instance there is no other option to solve a crime, said Unified Lt. Justin Hoyal.

"We generally don't use illegal or undocumented immigrants because of their status of being illegal," Hoyal said. "[Plus] we don't want to put them in a position where they feel obligated or compelled to work for us because of their status."

He said the policy avoids creating additional issues.

"We don't want to have illegal activities that are involved in our investigation," Hoyal said. "That could raise some questions later down the road. Just the use of someone who is illegal and undocumented, we're not going to use [them] so as not to add illegalities to the case."

Lt. Troy Burnett, commander of the Weber-Morgan Narcotics Strike Force, said since 2009 about 88 percent of all his area's methamphetamine, cocaine, heroin and marijuana has been seized from undocumented immigrants — typically working in Utah for Mexican drug cartels. However, those undocumented immigrants make up less than 1 percent of total arrests.

"That tells you there is a minority of people controlling the majority of drugs that come into Weber and Morgan counties," Burnett said.

He said using undocumented immigrants as confidential informants is done on a case-by-case basis, but he wouldn't prohibit it.

"Why would we try to limit ourselves?" he asked. "Especially with a section of society that is responsible for bringing a majority of that into our community."

He noted that his unit is responsible for establishing the credibility of confidential informants so they have to ask if someone is in the country legally.

In West Valley City, officers are allowed to analyze the effectiveness of undocumented immigrants on a case-by-case basis.

"It's based on the totality of the circumstances," said Deputy Chief Mike Powell. "We always need to know who we're dealing with. We're not willing to work with someone we can't positively ID or have the means in which we can positively identify them."

Salt Lake City's policy doesn't forbid the use of undocumented immigrants, but officers may not inquire about anyone's immigration status.

"It's the wrong thing to do for local law enforcement," said Chief Chris Burbank. "Because when you start asking questions about status, you are talking to racial bias and profiling. There's no two ways about it."

He said a department policy that forbids undocumented immigrants from serving as confidential informants might inadvertently insert bias into policing efforts.

And being in the country illegally is a civil violation, not a criminal one, Burbank noted.

"That is why Salt Lake City is not in the business of enforcing immigration laws," he said. "There is no crime of being undocumented."

He said focusing on an individual's immigration status just "drives a wedge between the police and the community" when it comes to investigating crimes.

"Most [people] are hardworking individuals going to school or work," Burbank said. "If you're going to treat them like criminals inappropriately, you're going to alienate a whole bunch of people."

Defense attorney Joseph Jardine, with Jardine Law Offices, said confidential informants in general have been found to be "inherently unreliable." And using them can create other issues, such as if the informant is deported before a criminal case is resolved.

"Often times they're granted some type of temporary status here in order to testify against someone or else they're deported after an indictment is handed down in the federal court or [after] a preliminary hearing [in Utah district court]," Jardine said. "You can't find them any more after the damage is done" from their initial testimony.

But overall, Jardine said he doesn't see a "huge issue" with using undocumented immigrants as long as police don't rely solely on the information they're providing.

"I just think law enforcement and the justice system in general need to verify their sources in an independent [manner]," he said.

jstecklein@sltrib.com Twitter @sltribjanelle