Close enough. I think I’ll go back to observing.
Part of the problem with sting operations done by the police is that they are RARELY the least intrusive method of justice. Sting operations are JUST as much about police getting revenge, boosting morale, and having a good time, than about actual justice.
In the same way that some police elect to use pepper spray when it is completely unnecessary, to get revenge on their victim. Is it legal? Borderline. The case could be made that the police were absolutely not using the least force possible, but it is a grey area. Moral? Absolutely not.
So far as either of us know. But then, police are not required to be transparent here, and since there is no warrant requirement anyway, how would we (the public) know? Especially since it seems established that it would be permissible in that the courts have not obviously recognized any particular limit on the operations of undercover policework. All we know is that they don’t think any constitutional protections related to non-undercover investigations apply (fourth, fifth, sixth, Miranda rights, etc.).
LOL, some people have waaaaaaaaayyyy too much faith in the police. They pull immoral and even illegal behavior all the time. Not all, but a not insignificant number. Whether or not it should stand up in court is a whole different issue.
Here, Bricker, for example are FBI guidelines.
I note the only passage which seems relevant (amazingly)
It seems these exceptions suggest that otherwise the rule is: it’s ok to be a buddy and get any info you can.
Except that any prosecution is a matter of public record, so anyone prosecuted as a result of such an investigation would be quite public.
Has anyone been? Who?
No. They suggest that information gained while pretending to be a lawyer must be handled very carefully, because it would be protected by privilege.
Have the police ever prosecuted anyone based on information they obtained – as distinguished from illegal acts they witnessed – when acting “as a buddy?”
So far as I’m aware, the answer is no.
Which implies when you are not impersonating a priest or attorney, the issue is not exceptional…
Well, there’s this little problem, you see. The reason the paper originally given was from the Netherlands was not because the authors really cared about the Netherlands. It was because police forces are not generally transparent. If that is so, sure, you will always be able to claim “as far as I am aware, no,” but that’s not a particularly strong objection. Obviously, you would like data from the US. So would I. But this data is not available. You are welcome to hold the position that anything covered in a veil of secrecy didn’t actually happen. But I would entertain the notion that it has, or could. After all, part of the point is discussing what the limits should be.
Do you have evidence that there is a limit here?
I think it’s an unreasonable search too. Any time I want to allow someone who may be unknown and suspicious to me into my house, I first ask if they are a police officer. Now, it’s true, under current caselaw, they don’t have to tell me. But next I inform them that no undercover police are welcome in my house, and that if they are a police officer they must immediately leave my property.
If a policeman were to stay in my home despite my command for him to leave, I believe I can establish an unreasonable search.
I haven’t finished reading this thread but I have some other comments in mind.
Is it your position that if such an investigation was never used to prosecute, that it has never been done? Otherwise you are asking me for data whose absence would not actually constitute a proof to the contrary.
Is this an established limit? How do you know?
Well, I think it implies the issue is not legally significant.
Except your ire seems to be that police can befriend a person, under the guide of friendship then obtain confessions to misdeeds, and then use those confessions against him at trial.
If they are not using those confessions against him at trial, what’s your objection?
If they are, it’s your burden to show that they are, or to acknowledge that you object only to the idea that they might.
It depends. A statement made out of court, offered in evidence in court for the purposes of proving the truth of the matter asserted in the statement is hearsay. It’s generally inadmissible, although there are exceptions which might apply. I’d want to hear specifics before I opined about the possibility of a particular utterance being admissible or not.
Again with the question of fact. Are you capable of expressing concern about hypotheticals? Can you use counterfactuals? Are you ever suspicious of things that are not transparent? There is a long history of courts restraining police in this country. Before this country existed, there was a long history of law enforcement abuses, which prompted things like the fourth and fifth amendments.
Suddenly, though, we’re supposed to be silent? Or can you imagine that it is not only possible but utterly believable that if the courts have not generally ruled that undercover officers engaging in behavior that would be unconstitutional in the course of an interview are acting unconstitutionally, that it is conceivable that no such limit regarding confiding in faux-friends exists?
Or are we just going to always return again and again to this question of data? If so, please stop. I will stipulate that no officer, to this date, in the history of American jurisprudence, has ever done such a thing.
Now: what do you suppose would stop an undercover from behaving this way?
The specific case I mentioned earlier involved the officer using a wired informant to obtain an admission of guilt on a crime. The Stanford paper mentioned earlier specifically indicates that the court wouldn’t distinguish an informant from an undercover for these purposes. Given this, the conclusion I draw is that an undercover could, in fact, act as a trusted companion to obtain an admission of guilt. Were the officer wired at that time, there we would be. The difficulty of establishing a close relationship from whole cloth probably means informants or other citizens would preferentially be used for this purpose. If so, it might even explain why we are not aware of such cases (unless you’re pulling another convenient amnesia and you are actually aware of such cases but figure it’s my “job” to find the source), and why such cases might not exist.
Are you serious? The police break into my house without a warrant, look around for something, find it, seize it, and leave. I never get prosecuted. What’s the harm? :rolleyes:
My objection is that without oversight into undercover ops by the public (transparency) and judiciary (warrants) they may be engaging in unconstitutional behavior. My objection is that I think the supreme court went too far in giving police such powers, even though I agree that there are certainly cases where they should have them and I would yield them.
Acknowledge I object only to the idea that they might. Hmm. You’re right, of course. I really shouldn’t have emphasized that my whole point hinged crucially on individuals cases and facts and wasn’t instead a broad, opinion-based position that we should examine the situation more closely because it looks like a reasonable position may be being abused.
Oh wait, I did. And then you brought up Helen Hunt, disregarding everything I said. So don’t fucking pretend now that it is some surprise to you that this has been where I stood all along.
Good grief. I agree, as I did above, that if police were to initiate an operation in which the design was to befriend a target for the purpose of soliciting confessions to crimes, and then prosecute for those crimes, I would be opposed to that tactic.
What more do you want me to say? As a hypothetical, I’m opposed to it.
Yes, I agree that it’s probably not barred by the Fourth Amendment. Whether it’s barred for other reasons, like the Fifth Amendment’s Confrontation Clause, is another matter.
I’m not aware of any such cases, but I haven’t done any research on the point. As you’re the one pushing the idea, yes, it is your burden to come up with them.
The harm is much less than the harm of using it against you at trial. And that’s pretty much the rule now anyway. Forget informants – the police break into your house and find your cocaine stash, but they don’t have a valid warrant. What do you think the outcome is? (Hint: they don’t give you your cocaine back.)
Wow.
Well, this is actually a cogent and highly defensible argument.
If I were you, I’d drop everything else you’ve said in this thread and just go forward with this paragraph.
So to answer this point in detail:
It’s hard to fault the general sentiment you evince here. But against the need for transparency, we have to weigh the need for secrecy and security – that is, the police cannot effectively run undercover operations if they are required to announce all the details of their undercover operations on their web page.
“So I heard you had serious weight to sell, man.”
“Um… maybe. just a second. click click click. Nope. Since I see that there’s an undercover op being run right now at my address, I’m going to say no, I don’t know what you’re talking about.”
So I’d be open to hear the specifics of your proposed transparency requirements. As long as we don’t eviscerate the ability of the police to effectively run undercover operations, I’m thinking I’ll be amenable to transparency initiatives.
It is clear that jeopardizing ongoing investigations would be a no-no. And I don’t believe every detail needs to be open for public inspection, as the nature of such details could also jeopardize the technique in general (particular tactics might be revealed, which would jeopardize operations not to mention officers’ lives). However, data that would be useful to the public would be summaries of the kinds of things undercovers do, and their frequency. Though it was roughly dismissed, the paper on the Netherlands contains some fascinating information on the number of failures, where operations were attempted but no evidence (which would implicate or exclude) or further useable information was obtained. If 50% of all undercover work was a failure, but it was only used four times that year, this is not equivalent to 50% of all undercover work being a failure when there were four hundred attempts. One is reasonable law enforcement, the other is a secret police. What about the number of informants in a population? If the number is very low relative to the population, then we could be relatively assured that police efforts are targeted and efficient. If it is very high, again with the secret police. Such objections are not just hyperbole, this kind of thing was exactly leveled against the FBI by groups around the civil rights time and during its creation. So the public, at least twice in history, wants to know.
I am extremely certain we are not at the secret police stage, but I am extremely skeptical we are at the “no worry” stage.
Regarding your mention of court cases. Even if the evidence presented in a court case is public, there is no[t necessarily] inspection of what it took to get that evidence. How many crimes did the officer commit? How many times did they try and fail, for example, using several informants or an undercover? There is no reason to suppose that the suspect would know about these, and if this itself constituted something fishy, how would the defense find out? (This is a question of fact: maybe such details are part of the package available to the defense in a trial. I would not know. Please correct me if I am horribly wrong here.) If such aggressive information-gathering existed but were itself never evidence, we’d never hear about it, because it would only be used to get leads for further operations and would not be evidential in itself. Of course, if some kind of warrant were required, then we would have some oversight as to whether police really were fishing, so this is where judicial oversight comes in. In order to justify their activities they indeed would have to reveal information that could compromise an investigation so the public transparency issue is not a concern here.
So, to summarize:
- Public statistics on kinds of undercover ops, successes, failures, crimes committed (or faked), number of informants. Note: the Netherlands paper has an excellent discussion of the definition of “success” or “failure” that is worth checking out
- The need for judicial oversight in beginning such an investigation, or changing its character, except for imminent threats which would immediately change the character of the investigation (which will happen from time to time, though this is also worth knowing the relative frequency of)
As of today, this would satisfy me that nothing untoward was happening. Inspection of such data might change my mind, though.
Without (1), the public cannot decide whether to change the law, and so we cannot say that the public actually supports the law, since we cannot know what the law is allowing. Without (2), there is no way to determine if police behavior not brought before the court is itself unconstitutional. In both cases, officers are skirting the Constitution. If they have our blessing, these two are not unreasonable to ask for, I think. If they refuse to yield this data, I would consider that extremely strong evidence that they know what they’re doing is questionable.
I would say that, in general, I am okay with the kind of long term relationship building required for sting operations. In this specific case, I am concerned that some of the behavior crossed over into entrapment. For instance, the case where the undercover woman asked the love-sick teenaged boy she’d been flirting with if he smoked pot, and eventually he agreed to score some for her. Now without knowing specifics, it’s hard to say if entrapment from a legal standpoint occurred, but this is pretty skeevy on the part of the officer to me. It’s one thing to hang around, get invited to a party, and then Johnny Lovesick offer you a joint to try to score points. It’s another for you to ask him if he’s got any or can get you some. That, to me, is squeezing the line. Were I on a jury and heard that, I would be hard-pressed to convict. It says “entrapment” to my layperson’s opinion.
Similarly, the case where the cop, acting as a “buddy” asked his “friend” if he had any pot, then handed him $20, which the “buddy” didn’t ask for and tried to reject but the cop insisted. All so the cop could bust him on “selling” within a school zone. You see if he’d just taken it from the “buddy”, it would be a minor possession violation, and that doesn’t carry the penalty of “selling in a school zone”.
Those activities seem to me to be inappropriate actions on the part of the cops.
Which is quite different from assessing whether undercover operations as a whole are unconstitutional, or if undercover operations as a whole are suspect.
The District Attorney is the state’s agent for Prosecution, it is the District Attorney (or someone acting in his authority, like an ADA) who has the authority to decide not to prosecute one person for something in exchange for something else. In the case of a sting operation, the DA can grant immunity for a nominal law violation in exchange for uncovering another crime.
Just like it is not speeding for a law enforcement officer to exceed the speed limit under certain situations (with lights on and sirens going), so it is not a possession violation for a police officer to have drugs that were acquired during an investigation and are logged as evidence. Similarly, it is not a possession violation for an underage person to buy alcohol under police supervision, when said underage person is not buying to drink but buying to prove the seller is violating the law.
Theoretically, I suppose so. I have in mind, for instance, cases where people have been arrested and prosecuted under federal drug possession laws even though they are in a state with legal possession, such as medical marijuana. That’s a situation where jurisdictional disputes lead to friction. Practically, I don’t think it’s going to happen for the underage buying kind of situation.
I think you would agree that it is possible to assess what the current legal position is and still feel that that legal position is unfair, and should be changed.
I still think the distinction is not in the degree of the crime, but in the specific actions used in these cases. They are clearly manipulating the “suspects” to draw out crimes or enhance the status of the crimes. It is these manipulative techniques that feel like entrapment to me.
You got a cite for that? Or is that just your opinion?
We don’t use police to break up riots? Breaking up riots doesn’t require the police? 
You seem to think that the cops in the investigations have free rein and have no oversight. They do have superior officers, and do have to submit the results of their investigations to the Prosecuting/District Attorney’s office. And the Prosecutor has the authority to evaluate if the methods used violate the letter or spirit of the laws. And ultimately, if prosecuted, the defence can appeal to the judge on the merits of the methods.
Certainly not listing all active investigations, especially undercover ops. I think he’s more proposing a warrant system where a judge gets to evaluate the merits of the undercover op.
As I understand it, there are various levels of responsibility. There’s the cop on the street. There’s the cop’s supervisors. There’s the District Attorney’s office, that decides whether they can prosecute. And then there is a judge. Each level of review brings a different party into the equation, and a different level of scrutiny to the operation. Is it reasonable for the responsibility beforehand to rest with the police supervisor? The DA’s office? Require a judge to review and sign off on methods before the investigation begins?
Where is the appropriate level of scrutiny? Is it possible to provide stronger standards for whomever, say DA’s, so they won’t feel inclined to prosecute situations such as the one in the article?
To me the issue is simple to explain because it involves officers doing things that they shouldn’t be doing if they were acting as officers. In this thread, it seems there is completely unanimous agreement that officers should go undercover sometimes and that this necessarily entails constitutionally questionable behavior (note: if it weren’t questionable, there wouldn’t have been several court cases outlining why these activities didn’t violate rights mentioned at various points in the thread). Traditionally, we leave such questions of constitutionality up to the courts to inspect. Then this is the natural place.
If you say, that’s too much of a burden on the courts, we need a new kind of policing body like an internal affairs office, I’m less but still fine with that, too, so long as there is a separation of powers here.
They don’t, (typically,) remove or seize property under false pretences. The evidence is seized upon arrest. If the sting doesn’t result in arrests, it also doesn’t typically result in seizures.
The sting operation itself is for information gathering. It is used to identify evidence. Collection of material evidence is then accomplished at arrest, legally, usually with a warrant.
You consider these phases distinct. I consider them part of the same operation, indistinct, and wholly related to the deception. We will not agree on this characterization of law enforcement behavior.
I wanted to respond to some of the excellent points you’ve made in more detail, and I will, but this single issue is one I can write quickly.
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In general, the defense is entitled to be informed of any information that would tend to support other theories of the crime, including information that would cast doubt on the credibility of an accusing witness.
However, it probably would not reach as far as attempts to use other informants, unless those informants had exculpatory evidence – that is, if three informants approached the guy and asked him to get child porn, and he said no, and then another informant got it, the defense might be mistake of fact – he didn’t realize what he was obtaining was child porn. He would be entitled to be told about the exculpatory fact that others asked and he refused them, and use that as evidence in his defense.