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.
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.
How courts apply these lines, however, is not only contradictory but blurry.
Falling between the lines
In Training Cops to Lie - PT 1, we saw how 14 trial, state and federal appellate judges disagreed 7 to 7 in the case of Miller v. Fenton, 796 F.2d 598 (3rd Cir. 1986), on whether factually undisputed deception was legal.
Let's look at some other court decisions.
In In re D.A.S., 391 A.2d 255, (D.C. App. 1978), the police pretended to compare the defendant's fingerprints to a fingerprint on the victim's checkbook and pronounced them a match. In truth, no fingerprints were recovered. The defendant confessed to the robbery and the Court held that the deception did not render the confession involuntary.
In re D.A.S. came on the heels of Oregon v. Mathiason, 429 U.S. 492 (1977) in which the Supreme Court upheld police falsely telling the defendant they had found his fingerprints at the scene. See also, Michigan v. Mosley, 423 U.S. 96 (1975) (confessing suspect had been told that another person had named him as the gunman.)
In Illinois v. Perkins, 496 U.S. 292 (1990), the Court held 8 to 1 that Perkins was not coerced when he confessed to committing a murder to an undercover police officer who was falsely posing as another inmate.
In State v. Cayward, 552 So. 2d 971 (Fla. App. 2 Dist. 1989), police interviewed a 19-year-old suspect in the rape and murder of his 5-year-old niece. Prior to the interview, the local prosecutor told police it was lawful to falsely tell the suspect they'd had the victim's underwear scientifically tested and the results showed semen stains on it from him - and to show him a false lab report of the results.
The suspect came to the station voluntarily, waived his Miranda rights, and, after denying his involvement, confessed when told about and shown a false lab report.
The trial court concluded the deception was would not coerce an innocent person to confess. The appellate court disagreed. It held the verbal lie was lawful but the false documents were not. Notably, the court seemed much more concerned that such documents could inadvertently make their way into court records and be mistakenly viewed as true than with the coercive effect of the reports on the defendant. Other courts have disagreed with Florida.
In Arthur v. Commonwealth, 480 S.E. 2d 749 (Va. 1997), the appellate court held that police showing a suspect "dummy" reports indicating his fingerprints and hair were found at the crime scene was not unduly coercive. The court addressed the Cayward court's concern by noting the police kept the false documents in a separate file from the actual investigative and lab reports.
In Sheriff, Washoe Co. v. Bessey, 914 P. 2d 618 (Nev. 1996), the Nevada Supreme Court criticized the Cayward court's distinction between a verbal lie and the same lie "embodied in a piece of paper," concluding there was no real difference. The court upheld police creating a "falsified lab report" showing a defendant had committed a sexual assault against a minor, stating, "There was nothing about the fabricated document presented in this case which would have produced a false confession."
In People v. Henry, 518 N.Y.S.2d 44 (N.Y. App. Div. 1987), the court upheld a confession obtained after police confronted the defendant with fake polygraph test results indicating he had lied to police.,p> In State v. Whittington, 809 A. 2d 721 (Md. App. 2002), police placed an invisible powder on a pen they gave to the suspect so when they later conducted a fake gunpowder residue test, it appeared to her she still had gunpowder on her hand. The court found this deception was not unconstitutionally coercive.
Still other courts have sided with the Cayward decision and reversed convictions based upon confessions obtained after the police presented fabricated evidence to the defendant.
In State v. Patton, 362 N.J. Super. 16 (App. Div.) (2003), an officer posing as an eyewitness was "interviewed" on an audiotape that was later played to the defendant who, despite his early denials of involvement, confessed upon hearing the tape. The trial judge permitted the admission of the confession and the false tape. The subsequent conviction was reversed on appeal.
How should police draw the lines on investigative deception?
If there's wide disagreement amongst judges looking at the same facts and law, 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?
Stay tuned as we try to answer this question. In future articles in this series we're going to look at:
- Does legal equal ethical in the use of police deception?
- Does ethical depend on whose ox is being gored, that is - on whom the deception is being used?
- Do the legal and ethical parameters of deception depend on how serious the crime that is being investigated is? What if it could prevent a death?
- If legal doesn't equal ethical, what should be the guiding standard for police?
- Applying the legal and ethical parameters to a real case.
- What about the issue of false confessions?
- What kinds of effects can deception have on the officers using it?
- What should police leadership be doing in this critical, complicated, provocative, high stakes area of policing?