OK, Bricker. Finally I believe I have some papers that would pacify even you that the questions I raise deal with American law enforcement issues and not just silly Englishmen whining about the bobbies.
After more digging, I have come across two pdfs. The first is a copy of Stanford Law Review, Volume 62. In it, Elizabeth Joh raises some of my concerns:
Of particular note:
Fifty years, huh? So I guess my view is not my own radical and silly interpretation of police behavior.
I could quote more, but I will move on to my second source, which is Orin Kerr’s paper “The Case for the Third-Party Doctine.” In the abstract itself, it says,
Now that I have established that questioning undercover police work is not a flippant opinion by using persuasive passages relevant to America, can we please discuss the matter at hand?
Justice constitutes merely the collective will of the people? I would argue that slavery was unjust long before it was outlawed, that the extermination of the Jews in Nazi Germany was unjust long before the Nazis were defeated, and that locking people up for minor pot possession/sale is unjust right fucking now.
No, it wouldn’t. Would it have killed you to let a layman know the term in question is “third party doctrine”? Would it have killed you to admit without cites that my position wasn’t unreasonable or unheard of?
If you want to play this kind of game, I will play it too.
OK, I found it. For future reference, this article is cited as Elizabeth E. Joh, Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 STAN. L. REV. 155 2009).
Ms. Joh’s arguments are not at all the same issue as the issues against which I understood your ire to be addressed. She doesn’t seem to complain about the fraud or deception – she argues that the issue is police committing acts which would be crimes if not committed in the context of an authorized investigation, and what that does to the moral standing of the state.
I haven’t seen any cites that duplicate your position yet. I haven’t reviewed your second document, but as I said above, Joh’s argument isn’t the one you’ve been making.
And why didn’t I mention “third party doctrine?”
Because that, too, didn’t seem to be in any way related to the argument you were making.
For the benefit of the reader: the “third party doctrine” in Fourth Amendment law refers to the concept that the Fourth Amendment protects things in which we have a reasonable expectation of privacy. If you reveal information to a third party, you cannot then complain if the police learn that information from the third party and use it against you. The best illustration of it is probably a case called Smith v. Maryland, 442 U.S. 735 (1979), in which police used a device called a pen register to record the numbers dialed from the telephone at a suspect’s home. This device didn’t record any conversations – just captured the numbers. Phone calls made by the accused later served as evidence against him, and he complained that this was a violation of his Fourth Amendment rights. The Supreme Court disagreed, holding that a person willingly disclosed the numbers he’s dialing to the phone company for purposes of billing, for example, but does not disclose the contents of a phone call. Thus, the numbers a person dials are not protected by the Fourth Amendment.
What this has to do with the subject under discussion baffles me.
You asked for passages which indicate that my position is not mine alone, and which were related to the United States. You did not ask for a paper which can be used as a substitute for my position.
I think Miller, back in the thread on the high school bust, hit on the cogent issue here:
Miller is not arguing on the basis of fraud, but on the intent behind the bust, and I think he has the problem by the horns. Perhaps the law should not allow stings for minor crimes, just major crimes like murder and terrorism. Otherwise we descend into a Soviet-style system of incriminating each other, essentially for sport. Which is kinda what the high school bust felt like.
I find it absolutely ridiculous how much trust is put into the police in these situations.
Do they act legally? Not always. Morally? Usually not. Police officers are people too. The ones selected for sting operations tend to be the slimiest and greasiest. In the OPs case it appears that the officer not only coaxed the man into selling him pot, but used tactics of deception that would make most cringe. Whether the whole process was done legally, we will probably never know. Oftentimes they are not done legally, and higher ups in the police force allow this to happen.
While this is always despicable, when it is happening to children who are specifically taught to trust the police, and also happen to be the easiest targets, and the least threat to the rest of society, it is not only immoral but probably not legal under the general police law that a means with less citizen interference is always better than one with more citizen interference, given the options.
Because, as I am sure you know given your impressive knowledge of law, the third party in question can be the undercover officer posing as a friend or other kind of trusted associate.
Speaking as an observer of this thread, this really confuses me. Your position is that long-term undercover ops violate constitutional rights in and of themselves. The position of the paper you provided is that LEOs commit illegal acts in the course of a long-term undercover op and that the law is okay with this. Unless you are satisfied with the fact that you are both against long-term undercover ops regardless of the reasons, that paper is not evidence that your position is shared with others.
I wouldn’t say this is the case, however it is not negligible that officers who are chosen for sting operations tend to be the greasiest, slimiest, and overall least moral.
The issue here is not whether a long term sting operation is inherently immoral, but rather which agency should be running the operation.
Do we use the police to break up riots or fix roads? Both are issues of public safety, yet neither require the police. In this case, handing over long term sting operations to the nastiest and most immoral cops may not be the best response.
If that were my position, I would be wrong, because they have been held to not violate the Constitution. But instead my position is that we should rethink this aspect of law enforcement.
That is indeed the position of the paper. In the course of that discussion, which is indeed tangential to this thread, points which indicate my position in this thread is not wildly, individually mine are raised. That was the accusation. It was support of the notion that I am not alone in my criticism which was requested. And that is what I provided. Then the request was to provide support related to American law. And that is what was finally provided. Does that help clarify the flow?
I have explicitly stated the contrary position. I accept that they probably are necessary.
I asked, “Could you quote some persuasive passage that supports your view, applicable to this country?”
Heere’s the quote:
You’ve produced papers which argue against other aspects of undercover police work. You haven’t produced anything to support your bizarre view of what should or should no violate the Fourth Amendment.
If your position now has devolved to, “uhhh undercover work bad,” then say so.
Perhaps. I’d certainly be against an operation whose purpose was to elicit incriminating statements by inserting an undercover officer to befriend the target.
So far as I know, in the United States, police agencies don’t do that.
This implies that your concern is with things that, in your view, violate the Fourth Amendment. You acknowledge later that precedent and settled law say differently, but that doesn’t change your opinion.
In what way is it not fair to characterize your position as saying that long-term undercover ops are unconstitutional, ie they violate the Fourth Amendment?
To the best of my knowledge, the Supreme Court of the United States is the final arbiter of what is and is not constitutional. They have decided this is constitutional. I believe that this position deserves reconsideration. As I have stated, I don’t believe the officers necessarily are violating the constitution. In my OP, I admit specifically that some are vital. In my discussion with ch4rl3s I offer the compromise position that, for now, I would be satisfied with such operations requiring their own kind of warrants. While I did not say so explicitly, this implies that I do believe undercover operations can be constitutional without committing to the notion that all are constitutional as they stand (current SCOTUS view), or the opposite notion that they are necessarily unconstitutional (a rather radical position which I have tried to avoid sounding like).