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INVESTIGATIVE TECHNIQUES LAW
Copyright 2001 - 2018 Edward S. Armstrong, Jr.
Copyright 2001 - 2018 Edward S. Armstrong, Jr.
All law enforcement officers must confer with their training officers, legal advisors and prosecutors regarding the following legal issues. State law can be more restrictive (pro-defendant) than Federal law. Federal circuit courts of appeal often disagree with other Federal circuit courts on issues not yet decided by the United States Supreme Court. Also, lower courts (State and Federal) sometime disagree on what a Supreme Court decision means. The following statements are not to be taken as legal advice.
15. UNDERCOVER ACTIVITY & COVERT QUESTIONING
a. Undercover Entry - An undercover Police officer (UCO) or undercover informer (UI) may enter into a person’s private premises through invitation (Consent), Hoffa v. U.S., 87 S.Ct. 408 (1966).
b. Undercover Statements – Statements made by a suspect during an undercover operation are not compelled in violation of the 5th Amendment. The suspect relied on his misplaced confidence that the person he revealed information to would not reveal it, Hoffa .
(1) Police undercover officers or informers are not required to give Miranda warnings during undercover questioning, Miranda v. Arizona, 86 S.Ct. 1602 (1966)(custody and questioning by known Police officer require warning).
(2) An undercover Police officer may record a conversation he has with a suspect without the suspect's knowledge or Consent, 18 U.S.C. § 2511 (2)(c).
(3) With prior Consent from an informer Police may record an undercover informer’s conversation with suspects, 18 U.S.C. § 2511(2)(c). See #1a,1b, 7.
(4) If an UCO / UI hears with his naked ear a conversation between suspects, he may record the conversation even if he is not a participant in the conversation. 18 U.S.C.§ 2510(2)(No REP in Oral Communication). See #1c, 7.
(5) An UCO /UI may deny (lie about) his true identity and purpose (witness at Trial) during undercover activity, Weatherford v. Bursey, 97 S.Ct. 837 (1977). No 5th Amendment Due Process violation.
c. Observations During Undercover Activity – What a suspect knowingly exposes to a UCO/UI is in plain view and not protected by the 4th Amendment, Hoffa, above. Therefore it may be seized without a Search Warrant or the suspect's Consent.
(1) However, a search by an UCO / UI of an area that is not in plain view is illegal, Gouled v. U.S., 41 S.Ct. 261 (1921)(search of desk drawer and seizure of evidence therein in the suspect’s dwelling was illegal and evidence was inadmissible at Trial).
d. Entrapment law
(1) Entrapment: inducement by government + no predisposition by the suspect to commit a crime.
(2) No entrapment: inducement by government + predisposition by the suspect to commit a crime, Sorrells v. U.S., 53 S.Ct. 210 (1932).
(a) U.S. v. Russell, 93 S.Ct. 1637 (1973)(offering precursor drug to predisposed suspects is not entrapment).
(b) Hampton v. U.S., 96 S.Ct. 1646 (1976)(offering illegal drug to predisposed suspect is not entrapment).
e. Undercover Activity Before Arrest – Police may conduct undercover activity and questioning before a suspect is arrested. For a suspect to have a 5th Amendment right to silence and an attorney, he must be in custody and be questioned by someone he knows is a Police officer (Police dominated atmosphere), Miranda (1966). For a suspect to have a 6th Amendment right to an attorney he must already be formally charged with a crime, Massiah (1964), #h below.
f. Undercover Activity After Arrest But Before Formal Charge – Police may continue undercover activity after arresting a suspect and before formally charging the suspect. There is no 5th Amendment or 6th Amendment violation for the same reasons described in 15 e., above. This undercover activity can take place in a patrol car, a police station, and in jail.
g. Undercover Activity Before Formal Charge – Suspect Represented by Attorney
Same reasoning as 15e and f, above. Police working undercover on a suspect who has not been formally charged with a crime and who is represented by an attorney does not violate the 5th Amendment Miranda rules or American Bar Association Code, DR 7-104, U.S. v. Cope, 312 F.3d 757 (6th Cir. 2002). State rule of professional conduct for attorneys cannot trump the Federal Rules of Evidence, McDade Amendment, 28 U.S.C. § 530B, U.S. v. Lowery, 166 F.3d 1119 (11th Cir 1999). U.S. v. Carona, 630 F.3d 917 (9th Circuit 2011)
h. Undercover After Formal Charge – Undercover questioning must stop once a suspect is formally charged with crime X at the Initial Appearance, Indictment or Information, whichever occurs first; many States use a Complaint for a formal charge. The suspect is now a defendant and has the 6th Amendment right to an attorney for the charged crime, Massiah v. U.S., 84 S.Ct. 1199 (1964).
(1) However, an UPO or UI may legally act as a listening post for crime X and any incriminating statement may be used against the defendant at Trial, Kuhlman v. Wilson, 106 S.Ct. 2616 (1986).
(2) A defendant's incriminating statement made to a jailhouse Police informer, even if obtained in violation of his 6th Amendment right, may be used at Trial as impeachment evidence if the defendant takes the witness stand (rare) and gives a conflicting statement, Kansas v. Ventris (2009).
(3) Note: A private person who is not an officer or informer may ask the suspect questions and later reveal the answers to Police. The 5th and 6th Amendments are restrictions on government only. Examples: friends, relatives, and cell mates who are not informers at the time of the questioning.
i. Undercover After Formal Charge X - Regarding Uncharged Crime Z - After the 6th Amendment right for crime X exists, undercover questioning about uncharged crime Z is legal, Hoffa, above, Maine v. Moulton, 106 S.Ct. 477 (1985).
(1) Even if the suspect is in jail, Illinois v. Perkins, 110 S.Ct. 2394 (1990).
(2) Even if the suspect asked for and was appointed an attorney for crime X, Alexander v. Connecticut, 917 F.2d 747 (2nd Cir 1990), U.S. v. Cook, 599 F.3d 1208 (10th Cir. 2010).
(3) Even if the uncharged crime occurred at the same time as the charged crime, Texas v. Cobb, 121 S.Ct. 1335 (2001).
j. Undercover During Attorney - Client Conference - An UCO/UI should avoid a meeting where a defendant who is formally charged with any crime may confer with his attorney about Trial strategy. If the meeting does occur, the UCO/UI should not reveal the contents of lawful Trial strategy to anyone: prosecutor, supervisor, or other investigator. If the Trial strategy includes illegal activity, e.g., perjury, the UCO/UI should reveal that part of the conversation to his supervisor and prosecutor, Weatherford v. Bursey, 97 S.Ct. 837 (1977), 28 Code of Federal Regulations 77.9b, Department of Justice.
k. Buy Bust – An undercover Police Officer may enter a suspect’s premises with Consent, observe contraband, arrest the suspect without a Warrant, or after a signal, have backup Officers enter to make the arrest without a Warrant, U.S. v. Akinsanya, 53 F.3d 852 (7th Cir. 1995), U.S. v. Pollard, 215 F.3d 643 (6th Cir. 2000)(Consent once removed).
l. Danger to Confidential Informer - If Police use an informer in a situation that is dangerous, without the informer’s knowledge that it is dangerous, and the informer is killed or injured, the Police and Police Department may be sued under the State Created Endangerment theory, Butera v. District of Columbia, 235 F.3d 637 (D.C. Cir 2001)(murder of CI), Monfils v. Taylor, 165 F.3d 511 (7th Cir 1998)(murder of CI).