The defendant went to pick up heroin from his supplier and was totally unaware the supplier had already been arrested and had agreed to assist law enforcement in order to get a “better deal.” The arrest man (now a CI) provided significant information about how the deal was supposed to go down. With the CIs assistance, a buy-bust sting was set up with the CI wired and DEA ready to move upon a prearranged signal from the CI. The deal went down as expected and Cherry was arrested and prosecuted.
Cherry sought to have the drug evidence excluded arguing the CI information was not reliable enough to establish probable cause. The court acknowledged that the probable cause determination can be “difficult” because “the totality of the circumstances” differ greatly from case to case. The court then applied the factors from Illinois v. Gates, 462 U.S. 213 (1983) and determined probable cause existed. Specifically, the court noted that when working with an unproven informant, the accurate prediction of specific future activity can provide that reliability (citing Alabama v. White, 496 U.S. 325, (1990)). In this case the CI accurately predicted and arranged for the buy which provided the reliability needed to establish probable cause.
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