Simply A Night Owl

The third installment of this series deals with one of the most often misinterpreted forms of deception used.   Take a look at the comments from the original post.  It was both  mentioned and eluded to there.

Entrapment is not so much what one does, but how it is done. For example, if an investigator goes out, sets up a drug house and deals drugs out of it, it would not be considered entrapment to arrest anyone who comes to the house and buys the drugs. However, if the officer takes the drugs out of the house, singles people out, and harasses them until they buy the drugs, then it becomes entrapment. In a paper entitled  “Police Deception”, J.D. Odenberger, a Chicago based defense attorney, writes that Federal Drug Agents, working undercover, approached a chemist and asked him to cook up some illegal drugs. When the chemist told the agents that he did not have a lab or chemicals, the agents went out and purchased the equipment and chemicals. The chemist agreed to start cooking. When he did, he was arrested, indicted and convicted. The chemist appealed the conviction on the basis of entrapment but his appeal was not successful. The appellate court held that it is not entrapment for the police to provide someone with an opportunity for a crime. Entrapment can only exist as a defense when it is proven that the government created the crime.

In Illinois v. Perkins, 496 U.S. 292 (1990), the U.S. Supreme Court held that an undercover police officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response. “Where the suspect does not know that he is speaking to a governmental agent, there is no reason to assume the possibility of coercion.” The court held that there is no coercive atmosphere existing when an incarcerated person speaks freely to someone that they think is another inmate.  However, in Kuhlman v. Wilson, 477 U.S. 436 (1986), it was determined that the defendant must demonstrate that the police and their jailhouse police informant took some action beyond merely listening. Perkins used a tactic that was used in a more famous case. In Hoffa v. United States, 385 U.S. 293 (1966), the court held that placing an undercover agent near a suspect in order to gather incriminating information was not in violation of his 4th, 5th and 6th Amendment protections.

The positive aspects of using what can be construed as entrapment are that valuable information can be gained by using imaginative methods. Female officers can dress up like prostitutes, walk the streets, beckon cars and attempt to make deals. Undercover officers can go to known locations where drugs are produced and sold and make buys.   These same officers can carry drugs on their person in order to induce a feeling of trust with the very people they mean to prosecute. The police don’t have to tell you that they are police and don’t think for a second that they won’t take off their clothes if they are investigating prostitution in a “massage parlor.”  It’s not illegal for an investigator to provide an opportunity for a suspect to commit a crime. If the suspect takes the bait, it is thought that they were predisposed to commit the crime anyway and therefore can be convicted and sentenced. This type of tactic was used locally to uncover the culprits in a string of bicycle thefts. A $1,500.00 mountain bike was left in the open and unlocked in the area of a prior thefts. It didn’t take long for the thiefs to find and steal the bike. Since it was being monitored by the police, the suspects were caught, arrested and subsequently admitted to the rest of the bicycle thefts.

Entrapment is a very “iffy” defense because the courts have taken judicial notice that deception is commonly used by investigators.  Only in cases of extreme police conduct, is entrapment actually defensible. In one such case, State v. Cayward, 552 S.E.2d 971 (Fla. App. 2d Dist., 1989) (the actual decision was not located), investigators fabricated official looking documents indicating that the suspects semen was found on the victim’s clothing and in doing so, gained a confession.  The Florida Supreme Court ruled that while the deception itself did not make the confession involuntary, the fabrication of evidence did and a murder conviction was overturned.   I wonder how the victim’s family felt about that?

Investigators need to be careful to not get greedy and cross the line into illegal acts of entrapment. The whole of law enforcement vicariously takes a hard hit anytime one person gets stupid and crosses the line.