Breaking the law to enforce it: Undercover police participation in crime

Stanford Law Review

Volumn 62, Issue 1, 2009, Pages 155-199

  Joh, Elizabeth E ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 73249130154     PISSN: 00389765     EISSN: None     Source Type: Journal    
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References (330)

1. United States v. Wiley, 794 F.2d 514-515 (9th Cir. 1986).
2. This kind of police activity was central to Operation Casablanca, a multi-year undercover operation run by the United States Customs Service to target large-scale money laundering of drug trafficking proceeds conducted through Mexican banks.
3. David R, Laundering Scheme Detailed by U.S., L.A. TIMES, June 2, 1998, at B2.
4. Brown V. State, 484 So. 2d 1324, 1325-26 (Fla. Dist. Ct. App. 1986).
5. United States v. Gonzales, 539 F.2d 1238-1239 (9th Cir. 1976) (undercover agents purchased ink, supplies, and a press for a counterfeit operation)
6. see also United States v. Reifsteck, 535 F.2d 1030-1035 (8th. Cir. 1976).
7. See discussion of Operation Greylord, infra Part III.C.2. 6. Participation in other illegal activities has been well documented.
8. See, e.g., Anchorage v. Flanagan, 649 P.2d 957-959 (Alaska Ct. App. 1982) (engaged in sexual acts with prostitutes)
9. Gary T. Marx, Under-the-Covers Undercover Investigations: Some Reflections on the State's Use of Sex and Deception in Law Enforcement, CRIM. JUST. ETHICS, Winter-Spring 1992, at 13-15 [hereinafter Marx, Under-the-Covers] (established brothels)
10. Jacqueline E. Ross, Impediments to Transnational Cooperation in Undercover Policing: A Comparative Study of the United States and Italy, 52 AM. J. COMP. L., 569-70 (2004) (stole fine art)
11. Alan Dershowitz, Sting II: Police Departments Get into the Act, BOSTON HERALD, June 25, 1982, at 25 (commissioned and financed an obscene film)
12. Hampton V. United States, 425 U.S. 484 (1976) (supplied heroin to defendant and participated in its sale to another government agent)
13. Shaw v. Winters, 796 F.2d 1124 (9th Cir. 1986) (sold food stamps and claimed they were stolen)
14. United States v. Parisi, 674 F.2d 126-127 (1st Cir. 1982) (provided the food stamps that formed the very basis of the conviction for improper use of food stamps)
15. Chaney V. Dep't of Law Enforcement, 393 7
16. I define democratic policing as policing consistent with the rule of law and its associated values, such as accountability and transparency. This isn't the only way to define democratic policing, and in fact the term lacks a widely accepted meaning. For an exploration of the relationship between democratic theory and policing
17. See infra Part III.C.2.
18. Undercover policing operations involve both officers and civilian informants acting as secret agents. Because the involvement of undercover police officers in authorized criminality poses especially troubling legal, ethical, and normative issues, this Article will refer to police who work undercover, although much of the analysis could apply equally well to undercover informants. Those interested in the use of informants would do well to consult the work of Alexandra Natapoff, Snitching: The Institutional and Communal Consequences, 73 U. CIN. L. REV. 645 (2004).
19. A note on terminology: As will be discussed in Part II, authorized criminality may be considered legal for different reasons, either because it is justified by the public authority defense or because the officer lacks the required mental state of a potentially applicable crime. To simplify discussion in the text, I sometimes refer to police participation in crime, although this does not mean that undercover officers are legally guilty of any crime.
20. There is no commonly used term for the practice. The FBI guidelines on undercover operations, described infra, refer to the practice as simply otherwise illegal activity.
21. JOHN A SHCROFT U.S. DEP'T OF JUSTICE, THE ATTORNEY GENERAL'S GUIDELINES ON FEDERAL BUREAU OF INVESTIGATION UNDERCOVER OPERATIONS (2002), availableat www.legislationline.org/download/action/download/id/1418/file/
22. 840c983e5800dd9cf0b6bd2349a5.pdf.
23. CHARLES BEENE, DECOY OPS: FIGHTING STREET CRIME UNDERCOVER 35-40 (1992)
24. Police, for instance, may stage an elaborate fictitious criminal organization in order to recruit a suspect, and subsequently bully him into confessing to his suspected crime on the ground that the organization's boss requires total honesty.
25. R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76 (Can.) (discussing such a technique as part of Operation Decisive conducted by the Royal Canadian Mounted Police).
26. WAYNE LAFAVE, SUBSTANTIVE CRIMINAL LAW 10.7(d) (2d ed. 2008) (noting that excessive zeal in law enforcement rarely leads to a criminal prosecution of the police).
27. George I. Miller, Observations on Police Undercover Work, 25 CRIMINOLOGY 27, 27 (1987) (Undercover work is arguably the most problematic form of policing undertaken by municipal police departments and [yet] little is known about it in operation.).
28. Ross, supra note 6, at 576 (An agent may violate the literal terms of certain penal statutes. [But] at some point feigned participation in a crime bears such resemblance to the crime itself that society cannot tolerate the conduct.' (quoting 2 G.
29. ROBERT BLAKEY, TECHNIQUES IN THE INVESTIGATION AND PROSECUTION OF ORGANIZED
30. Alan Feuer, Bronx Man Pleads Guilty in Terror Case, N.Y. TIMES, Apr. 5, 2007, at B1 (describing undercover police officer's role in investigation leading to guilty plea of would-be Al Qaeda operative Tarik Shah)
31. William K. Rashburn, Detective Was Walking Camera' Among City Muslims, He Testifies, N.Y. TIMES, May 19, 2006, at B1 (describing work of N.Y.P.D. detective recruited from police academy to play deep cover role in Brooklyn Muslim community to investigate Islamic extremists and testify at trial of Shahawar Siraj).
32. V. Kaminski, 703 F.2d 1004-1010 (7th Cir. 1983).
33. V. Jannotti, 673 F.2d 578-616 (3d Cir. 1982), where the majority and dissenting opinions, while in violent disagreement about whether the facts supported a finding of entrapment as a matter of law, agreed that undercover officers could participate in illegal activity.
34. I have suggested elsewhere that this focus has also steered legal scholars away from paying close attention to private policing, which is not regulated by constitutional criminal procedure at all, but has become increasingly significant as a source of private crime control and order maintenance
35. Elizabeth E. Joh, The Paradox of Private Policing, 95 J. CRIM. L. & CRIMINOLOGY 49 (2004)
36. David Sklansky, The Private Police, 46 UCLA L. REV. 1165 (1999); discussion infra Part IV.C.
37. One of the most important studies in this area is Gary T. Marx's Undercover: Police Surveillance in America, which provides a sociological analysis of undercover policing in the United States.
38. MARX, POLICE SURVEILLANCE IN AMERICA, supra note 6. Michel Girodo, cited infra in notes 65 and 217, has also conducted extensive psychological research on undercover police.
39. There are notable exceptions. Jacqueline Ross has written extensive comparative scholarship on undercover policing in the United States and in Western Europe.
40. See, e.g., Ross, supra note 6.
41. Here is one imprecise measure: A Westlaw search in the Journals and Law Reviews (JLR) database for those articles with either the Fourth Amendment or Fifth Amendment in the title and with at least one mention of police in the text yields more than 1600 hits (1667 to be precise). A search in the same database of articles with undercover in the title and at least one mention of police in the text yields only thirty-five hits (a result which includes a heavy focus on the entrapment doctrine) (search conducted Oct. 2009).
42. Gary T. Marx, When the Guards Guard Themselves: Undercover Tactics Turned Inward, 2 POLICING & SOC'Y 151-152 (1992).
43. Ross, supra note 6, at 571.
44. Once the Sixth Amendment's right to counsel applies to the defendant, however, the government may not elicit statements from the defendant in any manner, including through an undercover agent, without his attorney present. See Massiah v. United States, 377 U.S. 201, 201 (1964).
45. This is the Fourth Amendment's third party doctrine, which is discussed infra text accompanying note 34.
46. Jerome H. Skolnick, Deception by Police, CRIM. JUST. ETHICS, Summer-Fall 1982, at 40-41 (Deception occurs at three stages of the detecting process: investigation, interrogation, and testimony.).
47. Julius Wachtel From Morals to Practice: Dilemmas of Control in Undercover Policing, 18 CRIME L. & SOC. CHANGE 137-139 (1992).
48. Id. at 140-41.
49. See id. at 143. In bait-sales, officers pretend to be thieves with stolen goods available for sale to pawnshop owners and other potentially disreputable business persons. Street crime decoys will, for instance, frequent areas where pickpocketing is common and pose as easy targets.
50. See generally CHARLES BEENE, DECOY OPS: FIGHTING STREET CRIME UNDERCOVER (1992).
51. See, e.g., Wachtel, supra note 28, at 144 (Abolishing undercover work would make it impossible for the police to detect and investigate secretive and consensual crime.).
52. See, e.g., LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 379-444 (2000) (discussing dramatic changes in the recognization of criminal defendants' constitutional rights during the Warren Court era).
53. Gary T. Marx, The Interweaving of Public and Private Police in Undercover
54. Hoffa V. United States, 385 U.S. 293 (1966)
55. Lewis V. United States, 385 U.S. 206 (1966)
56. Lopez V. United States, 373 U.S. 427 (1963). For a provocative defense of the often-criticized doctrine
57. Orin S. Kerr, The Case for the Third-Party Doctrine, 107 MICH. L. REV. 561 (2009).
58. Illinois v. Perkins, 496 U.S. 292 (1990).
59. Richard A. Leo, From Coercion to Deception: The Changing Nature of Police Interrogation in America, 18 CRIME L. & SOC. CHANGE 35, 35 (1992). While it is true that 9/11 raised serious debate about the propriety of torture as an interrogation technique in terrorism investigations, the larger historical trend of policing generally has been toward less violent tactics.
60. V. Wick, 948 F.2d 1293 (9th Cir. 1991) (unpublished disposition).
61. United States V. Myers, 692 F.2d 823 (2d Cir. 1982)
62. United States V. Murphy, 642 F.2d 699 (2d Cir. 1980)
63. United States V. Myers, 635 F.2d 932 (2d Cir. 1980).
64. United States V. Parisi, 674 F.2d 126 (1st Cir. 1982).
65. MARX, POLICE SURVEILLANCE IN AMERICA, supra note 6, at 7.
66. James McKinley, Dogfighting Ring Is Broken Up in Texas, N.Y. TIMES, Nov. 16, 2008, at A26 (describing seventeen-month undercover operation in which Texas state police infiltrated an invitation-only underground dogfighting network)
67. James McKinley, Dogfighting Subculture Is Taking Hold in Texas, N.Y. TIMES, Dec. 7, 2008, at A30
68. Describing murky and dangerous subculture involving illegal dogfighting, fencing stolen property, and illegal drugs
69. EDWIN M. SCHUR, CRIMES WITHOUT VICTIMS: DEVIANT BEHAVIOR AND PUBLIC POLICY 80 (1965) (The typical technique for effecting arrest involves the use of plainclothes detectives as decoys to draw indecent proposals.).
70. Wachtel, supra note 28, at 149
71. Skolnick, supra note 27, at 52 (Practically speaking, it is impossible to enforce consensual crime statutes-bribery, drug dealing, prostitution-without employing deception.).
72. Miller, supra note 15, at 42.
73. MARX, POLICE SURVEILLANCE IN AMERICA, supra note 6, at 60-67.
74. See id. at 61-62.
75. See id. at 62-63.
76. Cf. id. at 62 (noting that entrapment is not an issue in postliminary surveillance investigations).
77. Id at 64
78. Henry W. Prunckun, Jr., It's Your Money They're After: Sting Operations in Consumer Fraud Investigations, 11 POLICE STUD.: INT'L REV. POLICE DEV. 190, 192 (1988) (describing such an effort by the South Australian Department of Public and Consumer Affairs)
79. MARX, POLICE SURVEILLANCE IN AMERICA, supra note 6, at 65 (reporting similar tactic of U.S. Postal Service to deliberately distribute ads for weight loss or easy money schemes in order to identify potential fraud victims and contact and educate them).
80. MARX, POLICE SURVEILLANCE IN AMERICA, supra note 6, at 65.
81. See id.
82. Marx describes these as the difference between predicated and open ended uses of undercover policing. See Marx, supra note 23, at 159.
83. See id. at 154.
84. For more discussion of the entrapment defense, see infra Part II.B.1.a.
85. Wachtel, supra note 28, at 143. Or, as Wachtel puts it, such operations run[] counter to the assumption that the Government should prevent rather than create crime. Id. at 149.
86. MARX, POLICE SURVEILLANCE IN AMERICA, supra note 6, at 126-27.
87. See id.
88. For a compelling discussion of simulated environments and correspondence to real world behavior, see id.
89. Chaney V. Dep't of Law Enforcement, 393 N.E.2d 75, 76-78 (Ill. App. Ct. 1979) (describing undercover Operation Suds in which officers were asked to open and operate a tavern)
90. MARX, POLICE SURVEILLANCE IN AMERICA, supra note 6, at 65 (describing example of officer posing as a drunk with an exposed wallet).
91. D.W. Webster et al., Effects of Undercover Police Stings of Gun Dealers on the Supply of New Guns to Criminals, 12 INJ. PREVENTION 225, 225 (2006) (describing stings in Chicago
92. Detroit; and Gary, Indiana in which police posed as criminals attempting to buy guns illegally from targeted gun dealers).
93. United States V. Russell, 411 U.S. 423-432 (1973)
94. see also United States V. Parisi, 674 F.2d 126-127 (1st Cir. 1982) (observing that because food stamps are freely possessed and redeemed, and go through many hands, apprehension of parties whose possession or transfer is unlawful only for perhaps non-obvious reasons may be particularly difficult, and therefore it may be necessary for the government itself to provide the stamps to the willing buyers).
95. Undercover police officers must sometimes use drugs to mask their identity, for example. Not all covert officers succumb to the pressure to use drugs, however, and some may successfully deploy other strategies to maintain their cover. As Bruce Jacobs reports from interviews with undercover officers, covert police sometimes evade drug use through the use of excuses (e.g., that they must report immediately to work after the score). In other cases, a covert officer will accuse the dealer of being a narc himself, or attempt to simulate drug use.
96. Bruce A. Jacobs, Undercover Drug-Use Evasion Tactics: Excuses and Neutralization, 15 SYMBOLIC INTERACTION 435 (1992). These alternatives, however, are likely to be most useful in light cover operations where the interaction between officer and
97. Michel Girodo, Drug Corruption in Undercover Agents: Measuring the Risk, 9 BEHAV. SCI. & L. 361, 362 (1991) (Criminals know to test the veracity of a proffered (false) identity by gauging the reaction to an invitation for drug use.).
98. Wachtel, supra note 28, at 146.
99. Michael Cooper, As Traps Grow, Wary Dealers Force Officers to Take Drugs, N.Y. TIMES, Feb. 17, 1997, 1, at 29.
100. V. Rowan, 288 N.E.2d 829, 831 (Ohio Ct. App. 1972).
101. From his interviews with former heroin addicts and dealers, sociologist Bruce Jacobs also identified a sudden increase in the amount of drugs purchased and transactional pushiness (overeagerness to buy drugs) as additional tip-offs to criminals. See Bruce A. Jacobs, Undercover Deception Clues: A Case of Restrictive Deterrence, 31 CRIMINOLOGY 281, 286, 288 (1993).
102. Bruce A. Jacobs, Getting Narced: Neutralization of Undercover Identity Discreditation, 14 DEVIANT BEHAV. 187 (1993) (discussing other tools needed for mask maintenance).
103. Jacobs, supra note 69, at 285.
104. For further discussion of the individual harms visited upon undercover investigators, see infra Part III.
105. Marx, supra note 23, at 163.
106. Light cover operations which pose the undercover investigator as a street crime decoy or drug buyer require much less professional investment than a deep cover operation in which the investigator may play a role for months, if not years, and undergo a social death of his real identity.
107. MARX, POLICE SURVEILLANCE IN AMERICA, supra note 6, at 85-86
108. Miller, supra note 15, at 28 (noting that the difference between the two is the degree to which the officer's private life merges with the fictitious civic identity).
109. Marx, supra note 23, at 159 (1992) (discussing these factors as influencing the degree of internal controls in organizations).
110. Ross, supra note 6, at 575 (American law is, by and large, unwilling to use criminal sanctions to regulate and restrain undercover policing.).
111. Jacqueline E. Ross, The Place of Covert Surveillance in Democratic Societies: A Comparative Study of the United States and Germany, 55 AM. J. COMP. L. 493-540 (2007).
112. Ross, supra note 6, at 581 (observing that criminal sanctions play a subordinate role in regulating undercover policing as compared to internal guidelines, ethical rules for prosecutors, and defendants' use of the entrapment defense)
113. LAFAVE, supra note 14, 10.7(d) (noting that in some cases, the participation of a police officer will not be criminal because a required mental state such as feloniously is absent).
114. UNIFORM CONTROLLED SUBSTANCES ACT 401(a) (1994) ([A] person may not. possess a controlled substances with intent to manufacture, distribute, or deliver, a controlled substance.). This is also true of federal law.
115. See, e.g., 21 U.S.C. 841(a) (2006).
116. Ross, supra note 6, at 575. The common law defense has been recognized by statute in some states.
117. IOWA CODE ANN. 704.11 (West 2009) ([A] peace officer or person acting as an agent of or directed by any police agency who participates in the commission of a crime by another person solely for the purpose of gathering evidence leading to the prosecution of such other person shall not be guilty of that crime or of the crime of solicitation).
118. PAUL H. ROBINSON, CRIMINAL LAW DEFENSES 142(a) (1984).
119. See id. 142(b). Many cases involving the defense involve considerations, usually ruling against the defendant, of whether the conduct in question was in fact authorized.
120. Lilly V. West Virginia, 29 F.2d 61-64 (4th Cir. 1928) (holding instructions on defense should have been given when federal prohibition agent struck and killed bystander while in pursuit of suspect)
121. People v. Lesslie, 24 P.3d 22-25 (Colo. Ct. App. 2000) (noting that defense does not apply when superior could not have legally authorized action in question)
122. People v. Roberts, 601 P.2d 654-656 (Colo. Ct. App. 1979) (rejecting defense where prison guard was not authorized to engage in undercover activity)
123. Walker V. Commonwealth, 127 S.W.3d 596, 604-05 (Ky. 2004) (rejecting defense where defendant bail bondsman received no authorization to detain third party).
124. ROBINSON, supra note 82, 142(d).
125. See id. 142(e) (Despite the typical absence of an explicit general statement of the proportionality requirement, it would seem difficult to deny that proportionality should be a limitation on the law enforcement justification in every case.). In the context of deadly force, the Supreme Court has required a proportionality determination as a matter of federal constitutional law. Tennessee v. Garner, 471 U.S. 1 (1985).
126. ROBINSON, supra note 82, 142(d).
127. See id. 142(e).
128. LAFAVE, supra note 14, 10.7(d) ([I]t would appear that in certain other circumstances [including undercover operations] the otherwise criminal conduct of a police officer, or a private person acting on behalf of an officer, may be privileged because the person was pursuing law enforcement purposes at the time. (citation omitted))
129. Ross, supra note 6, at 575 (discussing application of the defense to undercover operations). But see ROBINSON, supra note 82, 142 (omitting any mention of this variation of the defense).
130. Ross, supra note 6, at 576
131. Ross, supra note 77, at 571 (noting that there is no case-by-case assessment of what undercover conduct is really' criminal).
132. See infra Part III (discussing harms of authorized criminality).
133. Brizendine V. State, 627 S.W.2d 26, 28 (Ark. Ct. App. 1982) (explaining that while statutory public authority defense exists, it is unlikely in the extreme that a policeman would be criminally prosecuted for such conduct)
134. LAFAVE, supra note 14, 10.7(d) (noting that the matter has seldom been litigated or made the subject of legislation).
135. See Rose supra note 77 at 540
136. Chaney V. Dep't of Law Enforcement, 393 N.E.2d 75, 77 (Ill. App. Ct. 1979) (describing letters from U.S. Attorney and state assistant attorney general provided to undercover police assuring [them] that they would not be prosecuted for their [undercover] activities and declaring the undercover operation lawful).
137. Ross, supra note 6, at 576 (Although the imposition of criminal sanctions on covert agents remains a theoretical risk, it is not of practical importance in the day-to-day operation of the undercover policing system.)
138. George E. Dix, Undercover Investigations and Police Rulemaking, 53 TEX. L. REV. 203, 284 (1975) (A theoretically interesting problem is the criminal liability of undercover investigators who commit. offenses.)id. at 286 ([T]he formal law barely addresses this issue [of undercover officers' criminal liability], arguably depreciating the need to address the issue in law enforcement rulemaking.).
139. United States V. Nguyen, 413 F.3d 1170, 1177-81 (10th Cir. 2005) (concluding defendant was not entrapped as a matter of law).
140. See, e.g., State V. Bullock, 153 S.W.3d 882 (Mo. Ct. App. 2005).
141. Sorrells V. United States, 287 U.S. 435, 439-41 (1932).
142. See supra Part I.C.
143. Skolnick, supra note 27, at 44. 100.
144. Kerr, supra note 34, at 591.
145. United States V. Russell, 411 U.S. 423, 436 (1973). A minority of jurisdictions apply an objective version of the doctrine, in which the defendant must show that the police conduct would have swayed a reasonable person. LAFAVE, supra note 14, 9.8(c). The Model Penal Code also has adopted an objective test. See MODEL PENAL CODE 2.13 (Proposed Official Draft 1962).
146. LAFAVE, supra note 14, 9.8.
147. Bailey V. People, 630 P.2d 1062, 1065 n.5 (Colo. 1981) (en banc) (observing that in this view the outcome varies with each individual defendant's state of mind; no general standards governing the permissibility of police conduct are set (emphasis added)).
148. Dix, supra note 94, at 276 (noting this observation about Russell, 411 U.S. at 423).
149. Although certainly in theory police involvement could be deemed so outrageous that it violates due process. See infra Part II.B.1.b.
150. Ross, supra note 77, at 571 (observing that the entrapment doctrine applies only to the most egregious pressures or temptations)
151. Skolnick, supra note 27, at 44 (noting that the subjective entrapment test permits police to engage in deceptive practices provided that the deception catches a wolf rather than a lamb).
152. SANDRA JANZEN, POLICE EXECUTIVE RESEARCH FORUM, ASSET FORFEITURE: INFORMANTS AND UNDERCOVER INVESTIGATIONS 26 (photo. reprint 1992) (1990). 108.
153. See, e.g., United States V. Jannotti, 673 F.2d 578, 604 (3d Cir. 1982) (en banc) (noting that there are few cases in which the defense has been successful)
154. Ross, supra note 77, at 539 (observing that the entrapment defense will matter to the outcome of criminal cases only in the most extreme and unusual cases). Successful uses of the defense may also be rare because of the dramatic nature of the remedy; a successful entrapment defense operates as a bar to prosecution rather than as an exclusionary rule.
155. Dix, supra note 94, at 276. And, of course, for entrapment to be raised at all, a suspect must become a defendant: another limitation of the defense.
156. Ross, supra note 6, at 590. 110. United States v. Citro, 842 F.2d 1149, 1152-53 (9th Cir. 1988) (implying that outrageous government conduct defense can apply even where defendant is predisposed to commit the offense).
157. Due process claims against the police are not limited to the undercover context.
158. Rochin V. California, 342 U.S. 165, 172 (1952) (holding that involuntary stomach pumping of a defendant by police constituted a due process violation that shocks the conscience).
159. V. Isaacson, 378 N.E.2d 78, 83 (N.Y. 1978) (citing factors for state constitutional law due process including (1) whether the police manufactured the crime; (2) whether the police engaged in conduct repugnant to a sense of justice (3) whether the defendant's reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by
160. Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir. 1986) (holding that police conduct must be repugnant to the American system of justice (quoting United States v. Lomas, 706 F.2d 886, 891 (9th Cir. 1983))).
161. V. Shine, 590 N.Y.S.2d 965, 966 (App. Div. 1992) (mem.)
162. Robinson V. Cattaraugus County, 147 F.3d 153, 158-59 (2d Cir. 1998) (denying plaintiffs' motion for new trial on section 1983 claims involving similar police conduct)
163. V Smith, 924 F.2d 889, 897 (9th Cir. 1991) (noting that a defendant raising a due process claim against police must meet an extremely high standard).
164. LaFave observes that the Supreme Court decisions in this area suggest that successful due process defenses will be exceedingly rare. LAFAVE, supra note 14, 9.8(g)
165. Hampton V. United States, 425 U.S. 484, 490-91 (1976) (undercover informant's supply of heroin subsequently sold by defendant to undercover police did not violate due process)
166. V Russell, 411 U.S. 423, 431-32 (1973) (undercover agent's supply to defendant of essential ingredient to manufacture methamphetamine did not violate due process).
167. In the Archer case, Judge Friendly made reference to such a hypothetical limit in dicta:
168. There is certainly a limit to allowing governmental involvement in crime. It would be unthinkable, for example, to permit government agents to instigate robberies and beatings merely to gather evidence to convict other members of a gang of hoodlums. Governmental investigation' involving participation in activities that result in injury to the rights of its citizens is a course that courts should be extremely reluctant to sanction.
169. V Archer, 486 F.2d 670, 676-77 (2d Cir. 1973) (footnote omitted).
170. V Williams, 623 So. 2d 462, 463 (Fla. 1993) (holding such conduct to violate the due process clause of the Florida state constitution).
171. See id. at 466 (The delivery of a controlled substance in a reverse-sting operation is worlds apart from the manufacture of a dangerous controlled substance.).
172. See discussion of public authority defense, supra Part II.A.2.
173. Indeed, it is not entirely clear that a due process defense exists in such a situation. See Hampton, 425 U.S. at 490 (If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant but in prosecuting the police under the applicable provisions of state or federal law.).
174. Thanks to Floyd Feeney for this observation.
175. V Dlugash, 363 N.E.2d 1155, 1161 (N.Y. 1977) ([T]he distinction between factual' and legal' impossibility was a nice one indeed and the courts tended to place a greater value on legal form than on any substantive danger the defendant's actions posed for society.).
176. Booth V. State, 398 P.2d 863, 870-71 (Okla. Crim. App. 1964).
177. Id. at 867-68.
178. MODEL PENAL CODE 5.01(1) (Proposed Official Draft 1962).
179. MODEL PENAL CODE 5.01 cmt. (1985) (The impossibility defense is rejected, liability being focused upon the circumstances as the actor believes them to be rather than as they actually exist.)
180. V Thousand, 631 N.W.2d 694, 703 (Mich. 2001) (rejecting the impossibility defense where the defendant attempted to distribute obscene material to an undercover officer posing as minor online).
181. V Pacheco, 822 P.2d 183, 184 (Wash. 1994) (en banc) (reversing conspiracy conviction where defendant conspired with an undercover police officer).
182. MODEL PENAL CODE 5.03 explanatory note (1985) (Guilt as a conspirator is measured by the situation as the actor views it).
183. Paul H. Robinson & Markus D. Dubber, The American Model Penal Code: A Brief Overview, 10 NEW CRIM. L. REV. 319-320 (2007).
184. Kyle S. Brodie, The Obviously Impossible Attempt: A Proposed Revision to the Model Penal Code, 15 N. ILL. U. L. REV. 237-240 (1995) (noting the Model Penal Code's adoption of a "subjectivist viewpoint").
185. Ross, supra note 77, at 539.
186. While other federal agencies-including the United Forest and Wildlife Service
187. ASHCROFT, supra note 11. The first Attorney General Guidelines for undercover operations were formalized in 1981, after intense public scrutiny of the FBI's involvement in the ABSCAM investigation. ABSCAM involved an FBI sting in which an informant posing as an agent for two fictitious Arab sheiks sought to influence a number of public officials.
188. GLENN A. FINE, U.S. DEP'T OF JUSTICE, THE FEDERAL BUREAU OF INVESTIGATION'S COMPLIANCE WITH THE ATTORNEY GENERAL'S INVESTIGATIVE GUIDELINES 41-42 (2005), available at http://www.usdoj.gov/oig/special/0509/final.pdf.
189. In September 2008, Attorney General Michael Mukasey announced new Guidelines for Domestic FBI Operations that attempt to harmonize guidelines previously considered inconsistent or ambiguous, as well as to emphasize the role of the FBI as an intelligence-gathering agency as well as a law enforcement agency.
190. Memorandum from Michael Mukasey, Attorney Gen., to the Heads of Dep't Components 2 (Sept. 28, 2008), available at http://www.usdoj.gov/ag/readingroom/guidelines-memo.pdf (noting that while criminal law enforcement has always been central to the FBI's functions, national security and intelligence aspects of its mission have increased in scope and importance since the September 11, 2001, terrorist attacks on the United States, and the new guidelines integrate and harmonize standards). While the new Guidelines for Domestic FBI Operations revise and repeal a number of then-existing guidelines, it leaves the Attorney General's Guidelines on Federal Bureau of Investigation Undercover Operations intact. See id. at 5.
191. ASHCROFT, supra note 11, at 3.
192. Id. at 8. Undercover operations which involve certain qualifying fiscal circumstances, such as the purchase or lease of equipment, buildings, or facilities, also require approval from FBI Headquarters but need not be reviewed by the Undercover Operations Review Committee. Id. at 5-6.
193. Although the Guidelines refer to a 50,000 limit, in 2004 the FBI increased the limit to 100,000 in an internal electronic communication. Compare id. at 4, with FINE, supra note 133, at 148. Operations involving sensitive considerations may be extended for a period not to exceed thirty days. ASHCROFT, supra note 11, at 11.
194. ASHCROFT, supra note 11, at 12.
195. See entrapment discussion supra Part II.B.1.b. 140. ASHCROFT, supra note 11, at 12.
196. Id. at 13.
197. Id. at 12. 143. Id. at 13. 144. Id. at 12.
198. Wagner, supra note 132, at 373 ([Guidelines] can be created, changed or abolished at will, without notification or a comment period. Agents found in violation of guidelines cannot be prosecuted for non-compliance.).
199. ASHCROFT, supra note 11, at 19.
200. BRIAN A. REAVES, U.S. DEP'T OF JUSTICE, CENSUS OF STATE AND LOCAL LAW ENFORCEMENTAGENCIES,2004,at1(2007),availableat http://www.ojp.usdoj.gov/bjs/pub/pdf/csllea04.pdf. The precise total, 777,885, includes fulltime and part-time sworn officers in local police forces, state troopers, sheriffs' offices, special jurisdiction police, and constables or marshals.
201. BRIAN A. REAVES, U.S. DEP'T OF JUSTICE, FEDERAL LAW ENFORCEMENT OFFICERS, 2 tbl.1 (2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/fleo04.pdf.
202. Henry Hamilton & John Ortiz Smykla, Guidelines for Police Undercover Work: New Questions About Accreditation and the Emphasis of Procedure over Authorization, 11 JUST. Q. 135-145 (1994).
203. Id. at 147-48.
204. Id. at 148. 152. Id. at 150.
205. Ross, supra note 6, at 571.
206. Ross notes that this is a particularly American phenomenon. See id. at 576. 155. See id. at 574.
207. See id.
208. See id. at 588 (observing that an Italian undercover officer faces criminal prosecution if his conduct falls outside of statutory exemptions).
209. Id. at 574-75 (citing Legge di giugno, 1990, n. 162, Art. 25(1), Art. 97). 159. Id. at 574.
210. R. v. Campbell,[1999]1 S.C.R.565,1999 SCC 676 (Can.), available at http://www.canlii.org/en/ca/scc/doc/1999/1999canlii676/1999canlii676.html.
211. See id.
212. See id.
213. See CAN. DEP'T OF JUSTICE, LAW ENFORCEMENT AND CRIMINAL LIABILITY: WHITE PAPER 4 (June 2000) (on file with author).
214. An Act to Amend the Criminal Code (Organized Crime and Law Enforcement), 2001 S.C., ch. 32 (Can.). For a critical view of the Act
215. Marc S. Gorbet, Bill C-24's Police Immunity Provisions: Parliament's Unnecessary Legislative Response to Police Illegality in Undercover Operations, 9 CAN. CRIM. L. REV. 35 (2004) (arguing Section 25.1 is a redundancy and may actually inadvertently restrict undercover operations).
216. Canada Criminal Code, R.S.C., ch. C.-46, 25.1(8) (1985). The provision also insulates from liability civilians who act under the authority of a police officer.
217. See id. 25.1(10).
218. Id. 25.1(11) (1985).
219. Id. 25.3(1)(1985). The annual reports require only limited information regarding occasions when the police have acted in ways that are covered by the justification. Details about investigations are not released.
220. JOHN KLEINIG, THE ETHICS OF POLICING 137 (1996) ([T]he question has to be asked: What does [undercover policing] do for our sense of who we are and what our society represents that this or that kind of deception is sponsored by government officials?)
221. MARX, POLICE SURVEILLANCE IN AMERICA, supra note 6, at 206 (At best, in a democratic society, it will never be possible to be too enthusiastic about undercover operations.). Note too that some commentators defend undercover operations on the basis that these tactics target criminals beyond the reach of ordinary street policing.
222. John Braithwaite, et al., Covert Facilitation and Crime: Restoring Balance to the Entrapment Debate, 43 J. SOC. ISSUES 5, 19 (1987) (arguing that undercover policing promote[s] greater equality between the treatment of the powerless and the powerful in the criminal justice system).
223. Hamilton & Smylka, supra note 149, at 136 (Unlike measures of reactive [police] patrol, undercover police work has no standard means of measurement, nor is there a central agency to receive the reports.).
224. U.S.C. 552(b)(7) (2006).
225. U.S. DEP'T OF JUSTICE, FREEDOM OF INFORMATION ACT GUIDE (2007) [hereinafter FOIA GUIDE].
226. U.S.C. 552(b)(7)(E) (2006).
227. FOIA GUIDE, supra note 171, at 813 ([A]n ever growing body of case law demonstrates that this exemption applies to a very broad range of law enforcement information).
228. Wickline V. FBI, No. 92-1189 SSH, 1994 WL 549756, at 5 (D.D.C. Sept. 30, 1994) (quoting Parker v. Dep't of Justice, No. 88-0760, slip op. at 8 (D.D.C. Feb. 28, 1990), aff'd, 934 F.2d 375 (D.C. Cir. 1991)).
229. Foster V. United States Dep't of Justice, 933 F. Supp. 687, 693 (E.D. Mich. 1996) (observing that disclosure of IRS undercover techniques would diminish the effectiveness of the use of similar techniques in existing and future investigations)
230. Wagner V. FBI, No. 90-1314-LFO, 1991 U.S. Dist. LEXIS 7506, at 7 (D.D.C. June 4, 1991) (approving withholding of DEA undercover techniques as 7(E) exemption); FOIA GUIDE,
231. Hale V. United States Dep't of Justice, 973 F.2d 894, 902-03 (10th Cir. 1992), vacated and remanded, 509 U.S. 918 (1993), overruled on other grounds, 2 F.3d 1055 (10th Cir. 1993).
232. Maguire V. Mawn, No. 02Civ.2164(RJH)(MHD), 2004 WL 1124673, at 2 (S.D.N.Y. May 19, 2004).
233. See, e.g., id. at 3 (noting that use of FBI bait money is particularly worthy of protection when the method employed is meant to operate clandestinely, unlike guards or bullet-proof glass barriers that serve their crime prevention purpose by operating in the open).
234. Erik K. Luna, Transparent Policing, 85 IOWA L. REV. 1107 1132-1141 (2000).
235. See id. at 1120. While Luna's primary concerns are instances of police abuse and corruption, his concerns about transparency have general applicability to all police actions that remain largely secret.
236. See id. at 1156. 182. Id. at 1160.
237. Id. at 1158-63.
238. For a discussion of police discretion and traffic stops, see Elizabeth E. Joh, Discretionless Policing: Technology and the Fourth Amendment, 95 CAL. L. REV. 199 (2007). Before the 1950s, scholars of the police assumed the police exercised hardly any discretion at all. For further discussion of discretion as a scholarly enterprise, see GEORGE L. KELLING, U.S. DEP'T OF JUSTICE, BROKEN WINDOWS AND POLICE DISCRETION 22 (1999)
239. SAMUEL WALKER, TAMING THE SYSTEM: THE CONTROL OF DISCRETION IN CRIMINAL JUSTICE 6-12 (1993).
240. Luna, supra note 179, at 1133. 186. See Joh, supra note 184, at 207. 187. See id. at 207-08.
241. JEROME H. SKOLNICK, JUSTICE WITHOUT TRIAL: LAW ENFORCEMENT IN DEMOCRATIC SOCIETY 69 (Macmillan 1994) (1966) (If the central task of the administration of criminal law is to balance the conflicting principles of order and of legality, the dilemma is epitomized in the question of police discretion.)
242. Albert Reiss, Jr., Police Organization in the Twentieth Century, 15 CRIME & JUST. 51, 74 (1992) (Although the foundation of policing is the legal order and its rules, police officers, nevertheless, have enormous discretionary powers to apply the law.).
243. I refer to sociologist Max Weber's classic definition of the state in terms of its monopoly over the use of legitimate force. See MAX WEBER, POLITICS AS A VOCATION, reprinted in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 77 (H.H. Gerth & C. Wright Mills eds. & trans., Routledge 2003) (1946).
244. Joh, supra note 184, at 205.
245. Colorado v. Bertine, 479 U.S. 367, 374 (1987).
246. Whren V. United States, 517 U.S. 806, 812-13 (1996).
247. Atwater V. City of Lago Vista, 532 U.S. 318, 326, 354 (2001). 194. City of Chicago v. Morales, 527 U.S. 41, 64 (1999).
248. Whether identified as quality of life policing or broken windows policing, these strategies owe their empirical and normative foundations to the broken windows thesis of Kelling and Wilson: namely, that the failure of the police to enforce minor offenses invites the commission of more serious crimes.
249. James Q. Wilson & George L. Kelling, Broken Windows, ATLANTIC MONTHLY, Mar. 1982, at 29, 31-32.
250. William Kleinknecht, Perspective, Arresting Crime, STAR-LEDGER (Newark, N.J.), Feb. 27, 2000, at 1 (describing adoption of broken windows policing by major cities).
251. D M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure, 86 GEO. L.J. 1153, 1171-75 (1998) (arguing for a political process approach that mandates judicial deference to community preferences); Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing,97 COLUM. L. REV. 551,650-70(1997)(suggesting nonconstitutional restraints including department guidelines and community monitoring).
252. Dix, supra note94, at293 (Undercover investigations' lack of a pervasive unifying doctrinal framework contrasts with other olice practices, such as the traditional search of premises for evidence of criminal guilt.) Wagner, supra note 132, at 373(Compared with traditional police practices, undercover methods are relatively unhindered by constitutional or legislative restrictions.).
253. Ross, supra note 77, at 539 (observing that police have discretion to decide when and whether to intervene, just as prosecutors have discretion not to bring charges).
254. Miller, supra note 15, at 28.
255. Wagner, supra note 132, at 375 (There are no clear legal limitations on the length of the operation, the intimacy of the relationships formed, the degree of deception used and the degree of temptation offered and the number of times it is offered. Police have much discretion with deciding on the outer limits of permissible undercover behaviour.).
256. See discussion supra Part II.A & B.
257. V Murphy, 768 F.2d 1518, 1528 (7th Cir. 1985).
258. V Kaminski, 703 F.2d 1004, 1010 (7th Cir. 1983). 205. Murphy, 768 F.2d at 1528.
259. Id. at 1529.
260. V Simpson, 813 F.2d 1462, 1468 (9th Cir. 1987) (We recognize that many people in our society may find the deceptive use of sex in law enforcement to be morally offensive. Nonetheless, in order to apprehend those engaged in serious crime, government agents may lawfully use methods that are neither appealing nor moral if judged by abstract norms of decency.' (quoting United States v. Bogart, 783 F.2d 1428, 1438 (9th Cir. 1986))).
261. As former Assistant Attorney General of the Criminal Division Philip Heymann stated before Congress: Instead of having to rely on. testimony of unsavory criminals and confidence men,. undercover techniques [permit us to] muster the testimony of credible law enforcement agents. FINE, supra note 133, at 138 (quoting FBI Undercover Guidelines: Oversight Hearing Before the Subcomm. on Civil and Constitutional Rights of
262. See FINE, supra note 133, at 41.
263. See id. at 42-43. The House of Representatives convened the House Subcommittee on Civil and Constitutional Rights, which began hearings in 1980 and issued a report in 1984.
264. Id. at 42. The Senate's Select Committee to Study Undercover Activities issued a final report in 1982. Id. at 43.
265. Id. at 43, 140 (quoting SELECT COMM. TO STUDY UNDERCOVER ACTIVITIES OF COMPONENTS OF THE DEP'T OF JUSTICE, FINAL REPORT, S. REP. NO. 97-682, at 11 (1983)).
266. Miller, supra note 15, at 35.
267. See, e.g., id. at 35 (reporting results of interviews with fourteen undercover officers in which eight working in deep-cover roles had received training of less than one day)
268. see also Chaney v. Dep't of Law Enforcement, 393 N.E.2d 75, 76 (Ill. App. Ct. 1979) (noting that officers asked to operate a tavern for an undercover operation had no undercover experience or training).
269. Details about the detective's assignment were revealed during his testimony at the trial of Shahawar Matin Siraj, charged with plotting to blow up the Herald Square subway in 2004. Rashbaum, supra note 17, at B1.
270. Girodo, supra note 65, at 365, 369 (reporting these findings from a survey of 271 undercover federal agents from unnamed department)
271. DiGloria V. Chief of Police, 395 N.E.2d 1297, 1299 (Mass. App. Ct. 1979) (describing officer's heroin addiction that began during undercover assignment to infiltrate illegal drug trade).
272. Mark R. Pogrebin, Eric D. Poole, Vice Isn't Nice: A Look at the Effects of Working Undercover, 21 J. CRIM. JUST. 383, 389-91 (1993) (reporting results from qualitative interviews with undercover investigators).
273. Michel Girodo, Undercover Agent Assessment Centers: Crafting Vice and Virtue for Impostors, 12 J. SOC. BEHAV. & PERSONALITY 237, 243 (1997) [hereinafter Girodo, Assessment Centers]
274. Michel Girodo et al., Dissociative-Type Identity Disturbances in Undercover Agents: Socio-Cognitive Factors Behind False-Identity Appearances and Reenactments, 30 J. SOC. BEHAV. & PERSONALITY 631, 631 (2002) (documenting evidence in which undercover agents in training exercises reported and were observed as involuntarily manifesting alternate identities outside of investigation context)
275. Michel Girodo, Symptomatic Reactions to Undercover Work, 179 J. NERVOUS & MENTAL DISEASE 626, 628 (1991) [hereinafter Girodo, Symptomatic Reactions] (documenting survey evidence suggesting that undercover work related to higher-than-average incidence of psychiatric problems).
276. Marx, Under-the-Covers, supra note 6, at 23 n.34 (discussing perils of agents who go[] native and fall in love with targets)
277. Miller, supra note 15, at 40 ([I]ncidents where former undercover officers are later found to have become violators themselves are common. (citations omitted)).
278. Girodo, Assessment Centers, supra note 217, at 238 (noting that undercover work selection criteria includes personality predispositions of both integrity and deceit). 220.
279. Michel Girodo, Health and Legal Issues in Undercover Narcotics Investigations: Misrepresented Evidence, 3 BEHAV. SCI. & LAW 299, 307 (1985) (observing that law enforcement agencies often seek such persons as candidates for undercover assignments without realizing accompanying risks).
280. Miller, supra note 15, at 32-33.
281. Pogrebin, Poole, supra note 216, at 389.
282. See id
283. Miller, supra note 15, at 40 (Citizens are not only candidates for arrest, they are social companions, confidants to some extent, and perhaps lovers.). 224.
284. Marx, supra note 23, at 160.
285. Pogrebin, Poole, supra note 216, at 391, 393 (The norms of police ethics may thus be turned upside down in undercover work.).
286. See discussion supra Part II.A.
287. Girodo, Assessment Centers, supra note 217, at 244.
288. Marx, supra note 23, at 162.
289. See id. at 163.
290. KLEINIG, supra note 168, at 137. 231. Wachtel, supra note 28, at 144.
291. Marx, supra note 23, at 167 (When [the police] are viewed as moral exemplars and beyond rapproach, there is probably less violation of the rules they are charged with enforcing and public cooperation is greater.)
292. Wachtel, supra note 28, at 139 (Government lying promotes cynicism and can break the bonds of trust that give representative government its special appeal…. (citation omitted)).
293. Olmstead V. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).
294. Alexandra Natapoff makes a similar case for the expressive norms conveyed by the pervasive use of criminal informants.
295. Natapoff, supra note 9, at 682-83. 235. For current national data on arrests and clearances, see SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE (2009), http://www.albany.edu/sourcebook/toc_4.html [hereinafter SOURCEBOOK ONLINE].
296. Ross, supra note 6, at 585 (No branch or agency of the U.S. government systematically considers the price we pay for allowing undercover operations to infiltrate and potentially distort a variety of social, economic and political settings in which licit and illegal activities coexist.).
297. supra Part III.A.
298. DONALD GODDARD & MICHAEL LEVINE, UNDERCOVER: THE SECRET LIVES OF A FEDERAL AGENT: THE STORY OF DEA AGENT MICHAEL LEVINE (1988)
299. VINCENT MURANO & WILLIAM HOFFER, COP HUNTER (1990)
300. JOSEPH D. PISTONE, DONNIE BRASCO: MY UNDERCOVER LIFE IN THE MAFIA (1988)
301. LARRY WANSLEY & CARLTON STOWERS, FBI UNDERCOVER: THE TRUE STORY OF SPECIAL AGENT MANDRAKE (1989) KIM WOZENCRAFT, RUSH (1990).
302. The Sourcebook of Criminal Justice Statistics publishes information on arrest data including the offense charged; the age, race, and sex of persons arrested; and geographic region.
303. SOURCEBOOK ONLINE, supra note 235.
304. Thus, a public reporting requirement similar to the one that exists under Canadian law does not go far enough. While Canadian law requires an annual report when its law enforcement defense is invoked, no other details of the investigation are provided.
305. supra Part II.D.
306. Dix, supra note 94, at 208.
307. See discussion supra Part II.C.
308. KELLING, supra note 184, at 17.
309. See id. at 15.
310. Livingston, supra note 197, at 663.
311. Braithwaite et al., supra note 168, at 11. Braithwaite and his co-authors express general skepticism that guidelines can provide much practical protection against [police] abuse. Id. at 12.
312. David A. Sklansky, Quasi-Affirmative Rights in Constitutional Criminal Procedure, 88 VA. L. REV. 1229, 1272-73 (2002) (discussing broad consensus that had developed by the 1970s about the desirability of guidelines to limit police discretion).
313. KELLING, supra note 184, at 28.
314. See id. at 16 (observing that the New York City Transit Police Department in 1980s was virtual[ly] silen[t] about practical police work)
315. Samuel Walker, Controlling the Cops: A Legislative Approach to Police Rulemaking, 63 U. DET. L. REV. 361, 368 (1986).
316. Sklansky, supra note 248, at 1273.
317. Livingston, supra note 197, at 662 (observing that legislatures have not generally forced police rulemaking out of concern that they appear anti-police).
318. See supra note 22.
319. State and federal laws play an important, but much less significant role in these areas, and have had the most sway where the Court has failed or declined to have significant authority, such as the regulation of government records, phone numbers, email, and other records
320. William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 781, 789 (2006)
321. Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 MICH. L. REV. 801, 850-57 (2004).
322. Stuntz, supra note 254, at 782.
323. See id. at 785.
324. See id. at 790
325. see also id. at 810 (Constitutional law made governing policing hard, governing litigation somewhat easier, and governing punishment very easy indeed. Legislators have spent accordingly.).
326. See id. at 803-04.
327. Cf. id. at 835 (arguing that police corruption should be a subject of constitutional concern).
328. Austin Sarat & Susan Silbey, The Pull of the Policy Audience, 10 LAW & POL'Y 97 (1988).
329. See id. at 99, 141.
330. See id. at 131 (Research which addresses the policy elite speaks with a particular voice. In particular, the pull of the policy audience leads sociologists of law to ignore perspectives inconsistent with its epistemology, or purposes.).