By Valerie Van Brocklin
www.valvanbrocklin.com

Up until now …

This is the fourth in a series of articles examining the legal and ethical parameters and societal implications of police deception in criminal investigations. Web links are listed below for the first 3 articles.

This series provoked lively reader comments when it first appeared on www.officer.com. The comments ranged from forceful attacks on any use of police deception – including undercover operations – to vigorous defenses of court-sanctioned uses of strategic deception, along with public policy arguments for these positions.

This article in the series looks at some more court decisions on what deceptions are legally permissible. My primary intent is to provide this case law as guidance for police officers. However, I encourage readers to continue to all readers to think about what the courts are deciding. 

Art, morality, obscenity and the courts.

G.K. Chesterton, a 19^th-century English essayist and poet said,

“Art, like morality, consists of drawing the line somewhere.”

Similarly, Supreme Court Justice Stewart wrote in the obscenity and free speech case of Jacobellis v. Ohio [web link below] that "hard-core pornography" was hard to define, but that "I know it when I see it."  His Honor may be able to draw the line between what’s obscene and what isn’t but apparently different people see things differently – including judges 

The state court deemed the film at issue in Jacobellis obscene. The U.S. Supreme Court reversed that ruling, holding that the film was not obscene and so was constitutionally protected. However, the Court could not agree as to a rationale, yielding four different opinions from the majority, with none garnering the support of more than two justices, as well as two dissenting opinions.

Police officers need and want to know where the line is on the legally sanctioned use of deception in criminal investigations. Unfortunately, it’s not only blurry, it’s moving, which cops know makes for a difficult target 

Bold lines.

Courts do not sanction police lying about their authority to search or seize, for example, telling a suspect that if they don’t consent to a search the officer will just go get a warrant when the officer does not have probable cause.

Nor may police lie about investigating a non-existent burglary in order to gain consent to enter and search a home.

The first deception undermines the Fourth Amendment’s probable cause requirement. The second could undermine the voluntary, knowing and intelligent requirements for valid consent.

A general limitation in undercover work and interrogations is that the police deception may not be of such a nature that it would coerce an innocent person to commit a crime (undercover work) or falsely confess (interrogations).

In Training Cops to Lie – Pt 1, we saw that most courts agree they'll decide whether the deception is unconstitutionally coercive based on a "totality of the circumstances."

The U.S. Supreme Court set out the totality of the circumstances criteria in Frazier v. Cupp, 394 U.S. 731 (1969). During interrogation, the officer told Frazier, falsely, that his cousin had confessed and implicated Frazier in the crime. The Supreme Court held the deception did not coerce the defendant so as to render his confession involuntary

Totality of the circumstances can include:

·         Police conduct - what officers say and do and how they say and do it, e.g., the length of the interrogation and whether police offer refreshment or breaks.

·         The environment - e.g., are police questioning the suspect in a 6' X 8' windowless room where they stand between him and the only exit?

·         The suspect's age and mental status.

·         Etc. - anything else that bears on the coercive nature, or not, of the interrogation.

How courts apply these lines, however, is not only contradictory but blurry.

Falling between the lines.

In Training Cops to Lie – PT 1, we saw how 14 trial, state and federal appellate judges disagreed 7 to 7 in the case of Miller v. Fenton, 796 F.2d 598 (3rd Cir. 1986), on whether factually undisputed deception was legal. 

Let’s look at some other court decisions.

In In re D.A.S., 391 A.2d 255, (D.C. App. 1978), the police pretended to compare the defendant’s fingerprints to a fingerprint on the victim’s checkbook and pronounced them a match. In truth, no fingerprints were recovered. The defendant confessed to the robbery and the Court held that the deception did not render the confession involuntary.

In re D.A.S. came on the heels of Oregon v. Mathiason, 429 U.S. 492 (1977) in which the Supreme Court upheld police falsely telling the defendant they had found his fingerprints at the scene.  See also, Michigan v. Mosley, 423 U.S. 96 (1975) (confessing suspect had been told that another person had named him as the gunman.) 

In Illinois v. Perkins, 496 U.S. 292 (1990), the Court held 8 to 1 that Perkins was not coerced when he confessed to committing a murder to an undercover police officer who was falsely posing as another inmate.

In State v. Cayward, 552 So. 2d 971 (Fla. App. 2 Dist. 1989), police interviewed a 19-year-old suspect in the rape and murder of his 5-year-old niece.  Prior to the interview, the local prosecutor told police it was lawful to falsely tell the suspect they'd had the victim's underwear scientifically tested and the results showed semen stains on it from him -- and to show him a false lab report of the results.  

The suspect came to the station voluntarily, waived his Miranda rights, and, after denying his involvement, confessed when told about and shown a false lab report. 

The trial court concluded the deception was would not coerce an innocent person to confess. The appellate court disagreed.  It held the verbal lie was lawful but the false documents were not. Notably, the court seemed much more concerned that such documents could inadvertently make their way into court records and be mistakenly viewed as true than with the coercive effect of the reports on the defendant. Other courts have disagreed with Florida.

In Arthur v. Commonwealth, 480 S.E. 2d 749 (Va. 1997), the appellate court held that police showing a suspect “dummy” reports indicating his fingerprints and hair were found at the crime scene was not unduly coercive. The court addressed the Cayward court's concern by noting the police kept the false documents in a separate file from the actual investigative and lab reports.

In Sheriff, Washoe Co. v. Bessey, 914 P. 2d 618 (Nev. 1996), the Nevada Supreme Court criticized the Cayward court’s distinction between a verbal lie and the same lie “embodied in a piece of paper,” concluding there was no real difference. The court upheld police creating a “falsified lab report” showing a defendant had committed a sexual assault against a minor, stating, “[T]here was nothing about the fabricated document presented in this case which would have produced a false confession.”  

In People v. Henry, 518 N.Y.S.2d 44 (N.Y. App. Div. 1987), the court upheld a confession obtained after police confronted the defendant with fake polygraph test results indicating he had lied to police.  

In State v. Whittington, 809 A. 2d 721 (Md. App. 2002), police placed an invisible powder on a pen they gave to the suspect so when they later conducted a fake gunpowder residue test, it appeared to her she still had gunpowder on her hand. The court found this deception was not unconstitutionally coercive.

Still other courts have sided with the Cayward decision and reversed convictions based upon confessions obtained after the police presented fabricated evidence to the defendant. 

In State v. Patton, 362 N.J. Super. 16 (App. Div.) (2003), an officer posing as an eyewitness was “interviewed” on an audiotape that was later played to the defendant who, despite his early denials of involvement, confessed upon hearing the tape. The trial judge permitted the admission of the confession and the false tape.  The subsequent conviction was reversed on appeal.

How should police draw the lines on investigative deception?

If there’s wide disagreement amongst judges looking at the same facts and law, how is a cop trying to do the right thing but also being expected to use all legally available tools to investigate and solve serious crimes supposed to figure this stuff out?

Stay tuned as we try to answer this question. In future articles in this series we’re going to look at:

• Does legal equal ethical in the use of police deception?
• Does ethical depend on whose ox is being gored, that is – on whom the deception is being used?
• Do the legal and ethical parameters of deception depend on how serious the crime that is being investigated is? What if it could prevent a death?
• If legal doesn’t equal ethical, what should be the guiding standard for police?
• Applying the legal and ethical parameters to a real case.
• What about the issue of false confessions?
• What kinds of effects can deception have on the officers using it?
• What should police leadership be doing in this critical, complicated, provocative, high stakes area of policing?

Training Cops to Lie – PT 1: The tangled web of police deception, http://www.officer.com/web/online/Investigation/Training-Cops-to-Lie---Pt-1/18$49343

Training Cops to Lie – PT 2:  OR Parameters of Police Deception, http://www.officer.com/web/online/Investigation/Training-Cops-to-Lie--Pt-2/18$49853

A Trial is NOT About the Truth – Just ask defense attorneys, http://www.officer.com/web/online/Investigation/A-Trial-is-NOT-About-the-Truth/18$50182

Jacobellis v. Ohio, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=378&invol=184

Described by Calibre Press as "the indisputable master of enter-train-ment," Val Van Brocklin is a trainer and author. She combines a dynamic presentation style with over 10 years experience as a state and federal prosecutor where her trial work received national media attention on ABC's Primetime Live, the Discovery Channel's Justice Files, in USA Today, The National Enquirer and REDBOOK. In addition to her personal appearances, she appears on television, radio, and webcasts, in newspapers, journal articles and books. Val is a regular contributor to officer.com and lawofficer.com and her writing has also been featured in the Calibre Press Online Street Survival Newsletter, Police Chief magazine, The Law Enforcement Trainer magazine, Integrity Talk magazine, Outdoor magazines and books. When she’s not working, Val can be found flying her airplane with her retriever, a shotgun, a fly rod, and high aspirations. Visit her at her website: www.valvanbrocklin.com.

 

  

By  John Reid & Associates

Imagine what it would be like to make everyday decisions without caring how your choices affected others and to live each day with the only goal being to elevate your insatiable self-worth.* When telling lies or engaging in criminal activity you experience no guilt or remorse and you have such confidence in your ability to escape punishment that you lie at will; in fact, engaging in illegal behavior, and the thrill of getting away with it, becomes a driving force in your life allowing you to express superiority over others: Welcome to the mind of the primary psychopath.

Fortunately, less than one percent of the population is diagnosed as a primary psychopath.* The predominant traits that characterize this psychological disorder include lack of remorse or guilt, poor behavioral control, need for emotional stimulation,* irresponsibility, shallow affect, failure to learn from experience, and involvement in anti-social behavior, including frequent lying. Primary psychopaths are usually diagnosed in their twenties, tend to be male and have a higher than average IQ.** They experience a psychological burn-out by mid-life after which they are likely to be nonproductive members of society (incarcerated, drug addicts, recluses).

Statistically, an investigator is much more likely to encounter a secondary psychopath.* These are individuals who possess some psychopathic traits in combination with symptoms from other personality disorders or mental illness.* About fifty percent of the prison population is diagnosed as having some psychopathic traits.

Identifying the psychopath

An investigator is generally not concerned with exactly what mental illness a suspect suffers from, but rather how to recognize fundamental symptoms of a disorder and how to effectively deal with the suspect.* A suspect with psychopathic tendencies will exhibit several of the following behaviors:

1.* Glibness / superficial charm e.g., unconcerned attitude, overly polite, inappropriate levity

2.* Irresponsibility e.g., failure to meet financial obligations, failure to keep appointments, not following through on promises

3.* Reckless disregard of otheris safety or feelings / lack of empathy e.g., irrationally shooting a customer during a robbery, purposefully aiming a car toward an animal trying to cross the road

4.* Pervasive engagement in anti-social behavior, e.g., lying, cheating, theft, fraud

5.* Impulsive behaviors, e.g., promiscuous sexual behavior, spontaneous crimes

6.* Feelings of entitlement, e.g., strive for positions of authority and power, expectation of special treatment (or claims of unfair treatment)

There are a number of key behaviors that may indicate a suspect has psychopathic tendencies.* The first is the suspect who, upon meeting the investigator, exhibits no fear or anxiety.* Rather, the suspect appears to almost enjoy the challenge of answering questions and does not present any outward symptoms of anxiety or guilt even when caught making an inconsistent or false statement.*

The suspect may engage in testing behavior shortly after meeting the investigator.* This concept comes from con men who would stage certain scenarios to test the gullibility of a potential victim.* Examples of testing behavior may include asking the investigator for a business card, to draw a map showing the best route to the freeway, or simply for the current time.* By engaging in this preemptive behavior, the suspect gains a sense of control during the interview.

Finally, it is not uncommon for psychopaths to falsify their credentials and even impersonate others.* When psychopathy is suspected, the investigator should question the suspect about his background, education, professional licenses and certification.* It may be productive to ask the suspect, "Have you ever pretended to be someone else, where you posed as another person?"

Interviewing The Psychopath         ***********

Because of the psychopathis high level of self confidence, he often believes that he does not need an attorney.* A psychopath is likely to waive his Miranda rights and agree to be interviewed.* During the interview he is easily engaged and appears to be helpful and cooperative.* In reality this "cooperative facade" allows the psychopath to manipulate the investigator with the intent to convince the investigator of his innocence.

The challenge in interviewing a psychopath is that, depending on the degree of psychopathy, the suspect may exhibit minimal behavior symptoms of deception when lying.* This includes the lack of specific nonverbal or paralinguistic behaviors reflecting anxiety, guilt, fear or low confidence.* Similarly, on the verbal level, the psychopath may not reduce anxiety by using memory qualifiers e.g., "to the best of my knowledge."*

In fact, psychopaths often tell bold lies that invite a challenge, e.g.,** "I had nothing to do with this whatsoever.* Iill give you my fingerprints because I know you wonit find them at the crime scene."* Later, the investigator finds the suspectis fingerprints all over the crime scene.* Needless to say, when a suspect exhibits psychopathic traits the investigator should not take anything the suspect says at face value.* Rather, the investigator should carefully document the suspectis alleged credentials or alibi, obtain exemplars, get blood sample, take fingerprints etc. and check everything out.

The psychopathis weakness is within his attitudes.* During an interview he will come across as unconcerned (inappropriate levity, express leniency toward the guilty party), offer unrealistic assessments of the crime, and express insincere emotions.* The predominant feature is the absence of anxiety or concern that is typically observed from innocent suspects.* Moreover, because psychopaths engage in spontaneous behavior, often there is clear evidence that places them at the crime scene or with the victim.* Of course, when confronted with the evidence, the suspect will have an explanation for the evidence and protest his innocence with a great deal of conviction.

Interrogating the Psychopath

Hard-wired within the psychopathis affected personality is a very high index of suspicion; psychopaths are incapable of fully trusting another human being and believe that everyone only acts in their own best interests.* Consequently, if the investigator attempts to come across as someone who understands the suspectis situation and can sympathize with the suspectis reasons for committing the crime, the investigator will lose credibility.*

Rather, the investigator should use a factual approach to the interrogation.* The investigatoris statements should focus on evidence and attacking the suspectis credibility.* The investigatoris demeanor should be professional, emotionally detached and confident.* It is rare for a primary psychopath to fully confess his crime.* More often, he will make incriminating statements and ultimately accept a plea bargain from the prosecutor n the psychopath will not fully admit wrong-doing, but may acknowledge that it is in his best interest to plead guilty.

In conclusion, investigators must guard against labeling every suspect who commits a despicable crime or who frequently lies as a psychopath.* While it is true that many people who commit crimes have psychopathic tendencies, certainly not all criminals are primary psychopaths.* Psychopathy occurs on a wide continuum.* Consequently, rather than asking, "Is this suspect a psychopath?" the investigator may be better off asking, " To what extent does this suspect exhibit psychopathic tendencies?"*

The more psychopathic tendencies a suspect exhibits, the less weight should be placed on specific behavior symptoms of truth or deception during the interview.* In fact, the focus of the interview should be to obtain detailed information, about the suspectis alibi, relationship with the victim, financial situation etc., and that information should be verified (or refuted).* The psychopathis guilt is usually revealed by detecting not one big lie, but several little ones.* Also, the interrogation approach should appeal less to the suspectis emotions and more to logic and intellectual arguments.

Credit and Permission Statement: This Investigator Tip was developed by John E. Reid and Associates Inc. Permission is hereby granted to those who wish to share or copy the article. For additional 'tips' visit www.reid.com; select 'Educational Information' and 'Investigator Tip'. Inquiries regarding Investigator Tips should be directed to Janet Finnerty johnreid@htc.net. For more information regarding Reid seminars and training products, contact John E. Reid and Associates, Inc. at 800-255-5747 or www.reid.com.

   

All Dressed Up and No Where to Go

By Kate O’Donnell
Public Grants & Training Initiatives
kodonnell@pg-ti.com

Through trial and error, police trainers have developed programs that have become standards in the industry. Many have been by accident, taking a concept, working through it and presenting it in a manner that hit home. First it was the department that provided great feedback, then the scope of training was expanded, and then expanded further; all of a sudden you have a program that has some legs in the police community. Some make it, but unfortunately, many of these programs die on the vine because the trainer doesn’t have the time or the knowledge of how to take this training to the next step. Many are hesitant to ‘promote’ themselves, feeling uncomfortable in the role of ‘promoter’ and actually profiting by their service to the community. It is a common and understandable mindset for a public servant.

However, what a terrible waste for a training program that has value to the police community, not to find its audience. It’s a common dilemma. Without a doubt, self-promotion is a challenge and that is why there are only a handful of police trainers that have achieved the truly elite status. Somehow these speakers worked through the process and the community as a whole has benefited by their efforts.

Trainers should listen to the feedback they receive, research their topics to assess the uniqueness of the program, and be confident that their training has merit. Write about your topic, get it published, spread the word, get some notoriety. If the trainer is uncomfortable with the business end of the process, don’t let that be an obstacle. A police trainer can work with a training company to handle that aspect of it, thereby allowing him to concentrate on being a cop and a trainer. So don’t be all dressed up with no place to go with your training! Take the initiative and find out your worth to the training community.

Kate O’Donnell has been involved in police training for over 25 years. She is the Executive Director of Public Grants & Training Initiatives, a company that provides marketing and sales support to a variety of police trainers. Grant writing services are also available for municipalities and non-profits.

Reprinted from  WWW.PATC.COM

Legal requirements for protective sweeps of residences by law enforcement

June 2011
by Brian S. Batterton, Attorney

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