by J. D. Obenberger, Attorney at Law
© 1998 J. D. Obenberger
There is a lot of dangerous misinformation about arrest and police conduct that I have heard from clients over the years, and it is important that you have an understanding of what the law actually says. It is not my intent to get into the philosophy or theology of whether it is morally right or morally wrong for the police to use dishonest tactics, nor to address the question of whether any law is worth enforcing if the price we must pay is a law enforcement agency skilled in the craft and art of deception, but instead, just to candidly report to you what the law permits peace officers to do.
Police Deception in Detecting Crime
There is a widespread belief out there that police officers are required by the law to act like Boy Scouts, that they can never lie, that if they do lie, it means that you can beat a case, that they have to read you your rights and if they don't do it, you can beat the case, etc., etc. and more etc.
It is simply not true that a police officer has to tell you the truth if you ask him (or her) whether he (or she) is a police officer. It is simply not true that a police officer will not take off his clothes in a prostitution investigation of massage or escort. It is not against the law for a police officer to proposition a prostitution suspect for sex for money. It is not necessarily entrapment for an attractive female decoy to dress provocatively at night on the streets, make eye contact with drivers, and beckon them, and try to induce an agreement for commercial sex. I have not read many reported decisions in which the Courts have been enthusiastic about trick, deception, and artifice by law enforcement personnel, but the Courts do understand that in the real word, a world in which crime loves darkness, stealth, and concealment, crime can sometimes only be detected and prosecuted through those same means.
In one famous case, federal drug agents, working undercover, approached a chemist and asked him to cook up some illegal drugs. When he replied that he had no laboratory or chemicals, they went out and rented a lab and bought chemicals, and invited him over. He agreed to start cooking. Boom. He's arrested, indicted, and convicted despite his plea of entrapment. He appealed the conviction. Held: No entrapment. Guilty as charged. It is not entrapment for the police to provide someone with an opportunity for a crime. Entrapment only exists as a defense when it can fairly be said that the government actually created the crime. The focus of the entrapment defense is on the state of mind of the accused. If he or she readily accepts an invitation to break the law, it shows pre-disposition to commit the offense, and so it cannot be fairly said that the government created the crime. In general, entrapment is a very difficult defense, and only in a few select cases of extreme police conduct does it have a realistic chance to succeed in obtaining an acquittal. Before accepting someone's pleas to you to join in breaking the law, ask yourself whether you look like John DeLorean.
It is not against the law for the police to provide an opportunity to a suspect to commit a crime, and if the suspect readily takes the bait, if the suspect was predisposed to commit the offense, the accused can be convicted and sentenced. Federal and State law enforcement personnel are constantly running all manners of sting operations in which they play the role of criminal, acting as if they are fences for stolen goods, corrupt officials who want bribes or corrupt businessmen who offer them, drug dealers, streetwalkers and the customers of escorts who want sex. Sometimes, in some cities, the police even run ads for dummy escort services. Vice enforcement units will obtain the use of offices, apartments, condos, houses, and hotels in their vigilant and never-ending quest to obtain the arrest of prostitutes and their customers.
Police Deception in Interrogation
The use of deception, trick, artifice, and dishonesty in interrogation is not a mere aberration or fluke that sometimes happens. It is simply routine in almost every law enforcement agency, and it remains routine because it is effective: When the suspect is talking with police, deception frequently breaks the suspect down and elicits confession. Although these tactics have been criticized by the United States Supreme Court (see, for example Miranda v. Arizona, 384 U.S. 436 (1966) dicta at 449-5 and 476), nevertheless the Supreme Court has never squarely banned the practice, and it sometimes justifies deceptive practices under the name "strategic deception". Illinois v. Perkins, 496 U.S. 292 at 297 (1990). This was a case in which the defendant was never given any Miranda warnings, but was placed in a cell with another prisoner, who, unknown to Perkins, was a confidential informant with the mission of trying to learn what Perkins knew about an unrelated murder. In upholding the murder conviction, the Supreme Court held that although Miranda forbids coercion in questioning a suspect, it does not bar "mere strategic deception by taking advantage of a suspect's misplaced trust in one he supposes to be a fellow inmate." Id.
While the subject of police trickery is itself tricky and complex, it can best be summed up in the words of the Court of Appeals for the District of Columbia, In re D.A.S., 391 A.2d 255 (D.C. 1978): "Confessions generally are not vitiated when they are obtained by deception or trickery, as long as the means employed are not calculated to obtain an untrue statement."
There is a famous case in which the police thought that a none-too-bright suspect was lying, and they suggested a lie-detector examination. He agreed. The problem was that there was no polygraph examiner available. These innovative and creative officers were undeterred by circumstance. They wired the man up to a copying machine and put a sheet of paper in the drawer that said "He is lying." When they asked him if he was guilty of the crime, they pressed the copy button, and out came the report that "He is lying". They showed it to the suspect, and he readily confessed. Held: His confession was voluntary and admissible.
Because most courts take the view that deception is acceptable in custodial interrogation so long as it is not likely to elicit false statements from a suspect, it is a widely accepted practice to tell the suspect untruths about his case. He will be told that his co-arrestees have made a statement and have identified him as the ringleader, even when they have remained silent. He will be told that his fingerprints were found at the crime scene even when it is not true. None of this will make his subsequent confession involuntary and inadmissible against him at trial.
However, there are limits beyond which the Courts will not let the police pass. In State v. Cayward, 552 S.E.2d 971 (Fla. App. 2d Dist., 1989) the police fabricated official-looking documents on police stationery and the letterhead of a private laboratory asserting that the defendant's semen had been identified on the victim's clothing. Citing the risk that such false documents could wind up in police files or in court, the resulting conviction was overturned. In a homicide, the suspect will be told that the victim is still alive.
It should be noted that just as life is not always fair, the law is not always fair either. You do not have any reciprocal right to lie to a police officer
If You Are Arrested
The police are under no duty to read you your rights. However, if they fail to do so while you are in their custody, the result is that, generally, statements made by you cannot be offered against you during the State's case or the US Government's case at trial. If you volunteer statements without police questioning, even those statements you made without having been advised of your rights may be admitted in the prosecution's rebuttal case if you take the stand. Statements that you make to others without police questioning, for example to a cell-mate, as long as you made the statements "voluntarily", can be used against you.
In most garden-variety arrests, the police never do read you your rights, because they don't have any interest in questioning you. And if they don't question you, there is no downside to them of not having read you your rights.
Until a custodial interrogation begins, there is no duty to read any rights to you. If you start the conversation with an officer on the street, you are not clearly in any custody, and what you say may put you in custody.
The most important rule to remember, if you are arrested, is that nobody ever got hanged for what they didn't say.
When Miranda was first decided, police officers and chiefs, from coast to coast, predicted that law enforcement would become unworkable, because suspects would heed the warnings, make no statement, demand a lawyer, and refuse to cooperate. Well, needless to say, the sky did not fall in on law enforcement. That is because the suspects kept talking.
It is actually rare for a suspect to invoke his Miranda rights and refuse to answer questions. The reasons are complex. Some people think that they can talk their way out of an arrest or out of jail. Some people feel the need to confess guilt. Some respond easily to a police officer who comes across like a friend. Some are convinced that they will go down anyway, and that "things will go easier" with a statement. For whatever reason, the police were amazed and chagrined to learn, that rights warning or not, defendants kept singing like canaries and manufacturing cases against themselves.
No matter how bleak the situation seems to you at that moment, you should make no statement about the offense you are being charged with or investigated for until you have consulted with a lawyer. Do not consent to the search of your vehicle or your house, or anything that belongs to you until you consult with a lawyer. Do not use force or resistance to the officer. Obey his clear directions. Do not resist his arrest or move around so as to stop him from controlling your movement. Do not run away. Do not throw contraband away. Do not lie. Do not argue or get cocky. You will pay a certain price if you do any of these things.
But do not consent until you have talked to a lawyer. This requires courage, because the presence of the officer and his partners, and your uncertain situation, impels you to want to get on the right side of the officer. The situation is inherently intimidating. Do not believe a statement that the officer can get a warrant anyway. If he didn't want your consent, he wouldn't ask for it. Maybe he needs it, maybe he doesn't. You don't know. But, if you have the choice, and he has, after all asked you to make a choice, your choice is "With respect, officer, I'll have to decline to give that consent until I talk with a lawyer." You can give that response whether or not you have been advised of your rights.
You can expect, in many departments from many officers, intimidation that is sometimes subtle and sometimes not too subtle. Threats or suggestions that your children will be put in a foster home. Threats or suggestions that your spouse will be arrested and charged.
You can expect deception of the sort that is mentioned in this article, and a great deal many more that space does not permit. You can expect promises of leniency. Don't fall for it. Only a State's Attorney can promise what the prosecution's position will be.
You are in the custody of the police. You are on their turf. You are nervous and frightened and you do not know where your best interests lie. If the police had an air-tight case, they would have little strong interest in interrogating you. That they are questioning you at all should dramatically prove to you that there is something more that they need and want, and that they believe that you can give it to them. They would not be questioning you at all if the game was already over.
Never forget that, in the end, if there was no probable cause for the arrest and any seizure, and if you can prove it through a lawyer who knows what he is doing, the case may be far from as bleak as it may look to you at that moment.
None of the foregoing is legal advice because legal advice must be tailored to particular facts and situations, and no attorney-client relationship is formed with any reader because of this article. If you have a legal question, contact a lawyer, and if you are arrested, do so immediately.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution. His firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the “real world”. His practice extends to First Amendment cases, municipal zoning and licensing, the law of privacy, criminal law and civil rights. He can be reached in the office at 312 558-6420 or paged at 312 250-4118 in any emergency. His e-mail address is email@example.com
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