If Courts Clash on Police Deception

How is a cop trying to do the right thing but also being expected to use all legally available tools to investigate and solve serious crimes supposed to figure this stuff out?

Up until now...

This is the fourth in a series of articles examining the legal and ethical parameters and societal implications of police deception in criminal investigations. Web links are listed below for the first 3 articles:

  • Training Cops to Lie - PT 1: The tangled web of police deception
  • Training Cops to Lie - PT 2: OR Parameters of Police Deception
  • A Trial is NOT About the Truth - Just ask defense attorneys

This series has provoked lively reader comments. They range from forceful attacks on any use of police deception - including undercover operations - to vigorous defenses of court-sanctioned uses of strategic deception, along with public policy arguments for these positions.

This article in the series looks at some more court decisions on what deceptions are legally permissible. The author's primary intent is to provide this case law as guidance for police officers. However, the author encourages readers to continue to voice their opinions, questions and concerns about what the courts are deciding.

Art, morality, obscenity and the courts

G.K. Chesterton, a 19th-century English essayist and poet said,

Art, like morality, consists of drawing the line somewhere.

Similarly, Supreme Court Justice Stewart wrote in the obscenity and free speech case of Jacobellis v. Ohio (web link below) that "hard-core pornography" was hard to define, but that "I know it when I see it." His Honor may be able to draw the line between what's obscene and what isn't but apparently different people see things differently - including judges.

The state court deemed the film at issue in Jacobellis obscene. The U.S. Supreme Court reversed that ruling, holding that the film was not obscene and so was constitutionally protected. However, the Court could not agree as to a rationale, yielding four different opinions from the majority, with none garnering the support of more than two justices, as well as two dissenting opinions.

Police officers need and want to know where the line is on the legally sanctioned use of deception in criminal investigations. Unfortunately, it's not only blurry, it's moving, which cops know makes for a difficult target.

Bold lines

Courts do not sanction police lying about their authority to search or seize, for example, telling a suspect that if they don't consent to a search the officer will just go get a warrant when the officer does not have probable cause.

Nor may police lie about investigating a non-existent burglary in order to gain consent to enter and search a home.

The first deception undermines the Fourth Amendment's probable cause requirement. The second could undermine the voluntary, knowing and intelligent requirements for valid consent.

A general limitation in undercover work and interrogations is that the police deception may not be of such a nature that it would coerce an innocent person to commit a crime (undercover work) or falsely confess (interrogations).

In Training Cops to Lie - Pt 1, we saw that most courts agree they'll decide whether the deception is unconstitutionally coercive based on a "totality of the circumstances."

The U.S. Supreme Court set out the totality of the circumstances criteria in Frazier v. Cupp, 394 U.S. 731 (1969). During interrogation, the officer told Frazier, falsely, that his cousin had confessed and implicated Frazier in the crime. The Supreme Court held the deception did not coerce the defendant so as to render his confession involuntary

Totality of the circumstances can include:

  • Police conduct - what officers say and do and how they say and do it, e.g., the length of the interrogation and whether police offer refreshment or breaks.
  • The environment - e.g., are police questioning the suspect in a 6' X 8' windowless room where they stand between him and the only exit?
  • The suspect's age and mental status.
  • Etc. - anything else that bears on the coercive nature, or not, of the interrogation.
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