So you’ve been arrested. Let’s just say for the sake of argument it is for some trivial drug offense. The arresting officers can’t compel you to give information, because in the U.S. we have the 5th amendment which protects us against being witnesses against ourselves. Furthermore, you have the right to have your attorney present during any interrogation. In fact all these rights have to be spelled out to you in your Miranda warnings by the police.
Okay, now, let’s say you have been arrested for some drug offense. But it is part of a police undercover sting. The police are pretending they are drug dealers, and thus entice you to buy drugs. No miranda warnings are given, naturally, because they are pretending to be drug dealers. No one tells you you have the right to have your attorney present because, again, they are just pretending to be interested in illegal drugs like you.
Why is this still legal and what am I missing here?
The custody part of custodial interrogation. Miranda only applies to custodial interrogations. Tecnically you’re probably missing the interrogation part as well. It is Miranda not the 5th Amendment that protects you.
IANAL, just a guy who is fascinated by the law and has a degree in administration of justice.
Did you have a predisposition buying those drugs? Did you go into a shady alley known to be frequented by drug peddlers late at night with a fistful of twenties? Did the undercover agent badger you into trying “something new,” despite your repeated insistences you had no interest, and finally you relented to make him go away?
And perhaps it wouldn’t matter. In no instance would it be legal for you to possess controlled substances, so it could be argued any reasonable law-abiding citizen should “just say no” no matter the circumstance. Any deviation from that could be construed as intent to possess
As found in United States v Russell 411 U.S. 423 (1973), not only can the government entice you to buy drugs, they can help you make them, too.
In law school this is called missing the call of the question. The Op asks about questioning and right to have attorney present and you talk about entrapment…
Also, you might want to look up the Delorean case in regards to your “just say no” comment.
What you’re missing is what the fifth amendment actually says.
Your description doesn’t involve being tried for a federal capital crime without being indicted by a grand jury. It doesn’t involve double jeopardy, or being deprived of life, liberty or property without due process and it doesn’t involve private prroperty taken for public use without just compensation. It doesn’t involve self-incrimination, because at no point are you being compelled to testify against yourself. It doesn’t even involve Miranda, because you even being questioned
What you’re missing is the reason why Law and Order has been on the air since the Jurassic.
There are two parts to the justice system: arrest and trial. An arrest can be made for any number of reasons, both good and bad. It has nothing to do with determining guilt. There is no defense against it. Trial determines guilt and it is there that defenses come into play. In fact, a defenses come in even before trial so that cases never even need to get to that stage.
You’re throwing the whole system into a blender and failing to indentify the pieces.
Wow, lots of snarky replies to your question.
There are three separate phases to the process you laid out, and different rules apply at each phase.
Phase 1: before arrest
Phase 2: after arrest and before trial
Phase 3: trial
Once you are arrested, the police must “read you your rights” and these rights, as we all know from countless police tv shows, include the right to remain silent and the right to have an attorney present during questioning.
Now, before you are arrested, the police can talk with you, and indeed lie to you in order to get information from you. This includes running undercover sting operations during which the police pretend to be drug pushers, or drug purchasers, or hit men, or whatever else their imagination can dream up. Now, this brings up a whole different issue which is entrapment, but that is another discussion.
Another hypothetical might help. Say you murder somebody in broad daylight, and you run up to a police officer with the murder weapon in your hand and the victims blood on you and you say, “Hey, I just killed that guy over there.” Can the police officer arrest you? Of course. Can what you said later be used against you. Absolutely. But you weren’t read your Miranda rights before you said that. True, but again, the police don’t have to read you your rights until after you are arrested.
There is no questioning occurring-- more specifically there is no custodial interrogation occurring. I saw that part of the question as asked and answered. Are you suggesting the earlier posters are incorrect; that there is an established right to have an attorney present for any interaction between police and citizen, especially any pre-detention interaction?
The Delorean case has dynamics at play that I don’t see as relevant to the discussion. Delorean dealt with a perjured informant and investigator that failed to keep accurate notes and knowingly passed false information as fact to his superiors during the investigation. The prosecution actually admitted on the record the informant perjured himself.
Hence the “might not matter” qualification. Not sure if you missed that. The key factor here is who put the idea in whose mind, and who had a predisposition to committing said crime. Let’s put it like this. An undercover cop comes up and asks you, “Want some free cocaine?” That in and of itself is not entrapment. You should “just say no.” If you say yes, the elements of entrapment are not yet present. Now, if that undercover cop comes up, and literally begs you, then it’s a different story. It’s still not entrapment, though, if upon further investigation it’s shown you have a coke habit and have $500 in cash and some form of paraphernalia in your possession, despite the officer’s efforts to convince you to take the goods.
According to the US Attorney’s Criminal Resource Manual Criminal Resource Manual, there are two elements to entrapment: (1) inducement and (2) lack of predisposition to commit the crime. To wit: “Mere solicitation to commit the crime is not inducement.”
As noted in the manual, United States v Kelly held that “a law-abiding citizen’s will to obey the law could have been overborne” must be demonstrated to establishment inducement. And that “a finding of predisposition is fatal to an entrapment defense.”