- Will this decision be upheld by higher courts?
- Should police be allowed to use fraud to gain evidence that they wouldn’t be allowed to seize through other means?
I believe this is done fairly often to obtain confessional evidence. “Your buddy told us everything. It’ll go easier on you if you confess right now.” “Your minister told us about your little discussion. Sign this and we’ll try to get a deal for you.”
Just out of curiosity, is it illegal for private citizens to send such letters? Could I write letters to people saying a class action suit had been decided in their favor and that I’d give them money if they’d write me? Or would they actually have to try and extort money out of him for it to be illegal?
If not, and it’s illegal, it’d be stunningly beautiful for the investigators to face civil or criminal action over this.
Metacom: As the OP’s quote indicates, police are allowed to break the law in certain circumstances when working to catch criminals.
And their action might not have been illegal, since they had no criminal intent. The law generally requires both a criminal act (actus reus) and a culpable mental state (mens rea) before punishing a crime. The police in this case had no intention of defrauding anyone when they pretended to be lawyers.
Don’t think, I caution, that this means you are safe in going around pretending to be a lawyer. (Echoes of Beryl Mooncalf, anyone?) Even if you have no actual intent to defraud, if your actions look guilty, it might be tough for you to convince a prosecutor or jury of your innocent intent. The police, on the other hand, would have little problem in this regard.
Mr2001 - it’s unclear to me what rationale, precisely, a higher court might use to reverse the decision. I’m certainly no expert on Washington state law, but the general question is whether or not an individual has a legitimate expectation of privacy with respect to an envelope he voluntarily licks and drops in a mailbox. In general, I’d say that the answer is no.
However, this is an interesting twist. The accused was communicating with what he believed to be lawyers, as a prospective client. The contents of his communication may arguably be considered privileged. His physical envelope, on the other hand, is a different story.
I don’t believe the police conduct here fails a “shock the conscience” test. I suspect the Washington courts will uphold this tactic.
- Rick
Brilliant. These police should be commended.
IMO, no.
If a standard can not be met, to accomplish an end by ignoring the standard, is an end run around it. In other words, the end justifies the means.
Perhaps the standard is too high. . .then we should correct the rule, not ignore it. The fact that many people avoid rules for their own benefit does not recommend this procedure to be followed by others. That includes the judicial system.
So in your view, police officers should never, ever be allowed to use fraud. They can never go undercover? They can never pretend to be a drug dealer to get a supplier? They can never pretend to be a UPS driver to get a dangerous felon to the door? They can’t even lie to a suspect in order to obtain a voluntary confession? They can’t put a wire on a confidential informant and tell him not to tell them he’s working for the police?
Setting the standards a little high aren’t you? In effect you are taking away one of the most valuable and widely used tools police officers have to help fight crime. Allowing more and more crimes to go unsolved, allowing more and more people to get away with crimes, and allowing the creation of even more victims? It’s nice to have pie-in-the-sky standards, but the costs of your ideals are way too high.
That depends on what “privacy” we’re talking about, IMO. There’s no expectation that what you write on the envelope will be private, but neither is there an expectation that your DNA will be lifted from the adhesive and used against you!
I don’t quite understand this part of the article:
Is that a justification for what the police did, or a comment on an unrelated issue? It seems to me that the letter inside the envelope wasn’t any more private than the envelope itself, as far as the police were concerned, because it was addressed to them. They ought to have as much–or as little–right to take DNA from the letter as from the envelope.
Of all those examples, the two that really jump out at me are the UPS driver and the confession. No, I don’t think police should be allowed to trick someone into coming to the door - they can get a warrant and pull him out of the house themselves. Neither should they be allowed to lie to someone to get a confession out of him, unless he’s allowed to lie right back at them.
One could say the same about the Fourth Amendment, I suppose, if he were so inclined. Wouldn’t police be able to solve even more crimes if they didn’t have those pesky limits on search and seizure?
The police normally can’t search your home (or your body, in this case) without your consent, unless they have a warrant. If the police are allowed to trick people into giving consent, what’s the point of getting consent at all?
That type of “consent” wouldn’t fly for a contract between private citizens. I wouldn’t even be surprised if someone who used that standard of “consent” for sex were convicted of rape.
On second thought, if they have a warrant, then they should be able to trick him into coming to the door. It’s safer for everyone involved. But if they don’t have enough evidence for a warrant, they don’t have enough evidence for fraud, IMO.
Suppose John Athan claimed his wife (or dog, or whatever) licked the envelope for him? How would they prove the dna sample was really his? (scratch the dog, I guess, it’d have to be human dna).
Well, the DNA matched DNA from a semen sample from a crime. I don’t think he’d have much luck claiming it was from his wife.
In any event, the DNA match gave rise to probable cause. Probable cause is not a certainty. It is merely a determination that something is likely. He’s certainly free at trial to show that the DNA doesn’t match him, but he can hardly claim it didn’t create probable cause for arrest.
Fair enough; I didn’t realise they were matching against a specific sample (though I probably should have - why else would they want it in the first place?)
There was a similar tactic here in Texas a few years ago that finally broke a decades old capital murder case. A suspect was drinking from a paper cup on his worksite, and a man with a fresh load of chewing tobacco in his mouth approached him an asked if he could have it for a spit cup. The man was an undercover officer, and the suspect handed his DNA sample left on the cup right to him.
off topic…
Hey Bricker (or any other legal dopers), the culpable mental state condition seems like a way out of a lot of things.
Say I get hammered, drive home, and on the way, take out a carful of people.
I didn’t mean to do it. I had no criminal intent when I got behind the wheel (beyond driving while impaired anyway-I’ll take the $500 ticket vs. 20 years in jail any day). My intent was innocent (to get home and sleep it off).
I realize this doesn’t work, or people would do it all the time. What (probably obvious thing) am I missing?
jk1245: You intended to go home and sleep it off, but you also intended to engage in an activity that recklessly or negligently endangered human life. Homicide doesn’t necessarily involve the intent to kill; a death that occurred during the course of a dangerous felony, an death that occurred due to an intent to cause serious bodily injury, a death due to a conscious disregard of an extremely high risk, and a death due to criminally reckless or negligent behavior can all be homicide, even though there was no intent or desire to kill someone.
I agree. Since it was DNA evidence then there is probably 1 less rapist on the streets due to a clever sting operation.
Bricker will be along to answer this much better than I can, as I have never practiced criminal law, but some crimes require a culpable mental state and some don’t. Also, as pravnik says, you don’t necessarily need to intend the resulting harm, just the acts which led to it, although your intentions about the harm may determine just which crime you’re guilty of. (You chose to drink and chose to drive. You’re guilty of drunk driving, and would be guilty of some form of negligent or reckless homicide if you kill a pedestrian, but you’re not guilty of first degree murder.)
As pravnik points out, you did have a culpable mental state. While you certainly lacked the specific intent to kill that carload of people, you had the general intent to drive drunk, which is a dangerous act. You wouldn’t be guilty of first degree murder, but accidentally causing a death because of actions you take that are reckless and without regard for life is the actus reus, and the general intent to drive drunk is the requisite mens rea.
Although there are a few acts that are punishable as crimes without a culpable mental state - these are known as “strict liability” crimes - they are the slim exception. In fact, courts have often read a scienter element (the mental state element) into crimes that do not explicitly provide for one.
But hey, wait a sec, I hear you say. I didn’t even intend to drive drunk! I started out the evening intending to act responsibly, and the only reason I ended up driving drunk is that I was so drunk I didn’t know what I was doing. So in a sense, I had no intent, not even the general one. Ah ha!
The answer is: it depends. These are rules that vary dramatically from jurisdiction to jurisdiction. As a general proposition, voluntary intoxication does not permit you to raise a defense against general intent, although it may negate specific intent in a given crime. On the other side of the coin, your state of mind before you took the first drink can work to your detriment: there are jurisdictions in which you can be charged with murder if you have a previous drunk driving conviction and cause another’s death in an alcohol-related accident - the theory being that knowing the dangers of drinking and driving and still taking that first drink is sufficient evidence of malice to sustain a finding of specific intent.
There was some effort to challenge the exclusion of voluntary intoxication evidence as a defense to proving intent, but this was put to rest by the Supremes in Montana v. Egelhoff, where they upheld Montana’s rule forbidding voluntary intoxication as a defense and noted that it did not violate the Due Process Clause.
- Rick
The problem that I have with these tactics are that this completely voids any sense of consent in regards to DNA evidence. We have the right to refuse DNA testing without probable cause, correct?
But how in the hell do you go about life not leaving your DNA somewhere? It drops off you in skin cells. You leave it on the cups you throw in the trash. It’s in your underwear. It’s in your car. It’s on your keyboard.
If we give somebody something with a radically different intention than what it is used for, don’t people have some expectation that people won’t go around DNA testing everthing that we give to them.
If cops lie and pose as lawyers and ask somebody if they’ve ever killed somebody and that person writes back describing in detail how they carried out that crime, sure, you can expect that somebody will read and interpret that letter. Use it to further your case all you want. But DNA testing? Who really anticipates that.
So, again, somebody explain to me how anyone practically retains the right to refuse providing DNA samples if stuff like this is allowed.
I thought of a similar example where the interrogating officers offered their suspect a soft drink and then retrieved the cup from the trash after the guy left. I think their right to do so was upheld on the grounds that he had willingly disposed of the cup and therefore it was fair game.