Deception Operations: Police Attorney Role - 45 Minutes -

1
Deception Operations Police Attorney Role
- 45 Minutes -

• Jeff Fluck
  Senior Instructor
• Legal Division
  Federal Law Enforcement Training
  Center
• 912-554-4218 Jeff.Fluck_at_dhs.gov

2
Rules of Engagement

• Questions anytime
• Silence Understanding
• Please
• Hand up
• Courtroom volume

The Slides
The Handout
3
The Objective
1. Prosecutable cases 2. Winnable cases
3. Post-verdict success 4. Community relations
4
Overview

• Introduction
• The Law and
  Deception Operations
• Entrapment
• Deception during Interrogation
• Ruse Entries to Search or Arrest
• The Undercover LEO
• Common Elements

5
Overview

• Attorney-Advisor Role
  Beyond Bare Legal
  Compliance
• Adding Elegance to the Design
• Adding Jury Appeal and Avoiding Jury
  Nullification
• Maximizing Sentence
• Anticipating Appeal
• Enhancing Community Relations

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I. Introduction

• Caveats
• Personal opinion NOT position of FLETC, etc.
• Federal focus
• The Two Faces of Deception
• Anansi the Spider Iliad
• Coyote the Trickster Loki
• Kitsuni the Shape Shifter
• The Modern Military Parallel

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I. Introduction

• Resources
• http//www.fletc.gov/legal/cletp.htm
• CLETP Downloads and Links
• FAQs from CLETPs
• Cases Research Resources
• Checklist
• Detecting Deception
• Paul Ekman, Telling Lies,
  W.W. Norton Company
  second revised
  edition 2001

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II. The Law and Deception Operations

• Entrapment
• Deception during Interrogation
• Ruse Entries to Search or Arrest
• The Undercover LEO
• Common Elements

9
II. The Law and Deception Operations

• Entrapment
• Deception during Interrogation
• Ruse Entries to Search or Arrest
• The Undercover LEO
• Common Elements

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A. Entrapment
Law Enforcement Mission
?
Stop Crime Catch Criminals
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A. Entrapment
Law Enforcement Mission
?
Create Crime Create Criminals
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A. Entrapment
Variations
AKA Proponent Analytic focus
Classic Subjective approach, Majority view Federal Defendant predisposition
Due process Objective approach, Minority view Model Penal Code Government misconduct
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Analysis of Classic
Entrapment Defense
Government Inducement Did a Government agent
take the first step that led to the crime?
Entrapment defense FAILS
Predisposition Was accused already predisposed
to commit the crime?
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Analysis of Due Process
Entrapment Defense
Government Inducement Was Govts inducement so
outrageous it shocks the judicial conscience?
Entrapment defense FAILS
Entrapment defense SUCCEEDS
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Defeating Entrapment

• How does Government defeat the defense of
  entrapment at trial? By showing
• The Governments inducement
  was mild
• The defendant was
  predisposed to
  commit the
  offense

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Defeating Entrapment

• Mild inducements
• Scheme underway
• Reasonable offer
• Single offer
• Appeals to unsympathetic motive
• Merely provides opportunity

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Defeating Entrapment

• Problematic inducements
• Govt hatches scheme
• Outrageous offer
• Excessively repeated offers
• Appeals to noble motive
• Violence
• Threats of violence

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Defeating Entrapment

• Defendant predisposed
• Defendant hatches scheme
• Prior criminal history
• Possession of instrumentalities
• Criminal know-how
• Ready acceptance
• Proposes
  further
  crimes

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Defeating Entrapment

• Defendant NOT predisposed
• No criminal record
• First offense
• Otherwise law-abiding
• Weak-willed, emotionally unstable, or otherwise
  
  easily-influenced
  or vulnerable

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Defeating Entrapment

• Mild inducement
• Defendant predisposed
• Nature and seriousness of offense
• This crime endangers community
• This crime is on the increase
• Lack of effective
  enforcement
  alternatives

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Defeating Entrapment

• Mild inducement
• Defendant predisposed
• Nature and seriousness of offense
• Threat posed by criminal
• This criminal endangers community
• This criminal isnt slowing down
• Lack of effective enforcement
  alternatives to convict this
  criminal

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Interlude
O3 Experience

• Entrapment
• Deception during Interrogation
• Ruse Entries
• The
  Under-
  cover
  LEO
• Common

Criminal conversation
Rights advisement NOT required IF criminal does
not know interrogator is LEO AND criminal is NOT
in custody
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II. The Law and Deception Operations

• Entrapment
• Deception during Interrogation
• Ruse Entries to Search or Arrest
• The Undercover LEO
• Common Elements

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B. Deception During Interrogation
Deception
CONVICTION
Confessions and admissions
Interrogation
Knowing, intelligent voluntary waiver
Miranda rights warning
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B. Deception During Interrogation Deception to
Induce Rights Waiver

• Miranda v. Arizona (4-1-4) (1966)
• Moreover, any evidence that the accused was
  threatened, tricked, or cajoled into a waiver
  will, of course, show that the defendant did not
  voluntarily waive his privilege.

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B. Deception During Interrogation Deception to
Induce Rights Waiver

• Missouri v. Seibert (4-1-4) (2004)
• The manifest object of question-first is to get
  a confession the suspect would not make if the
  suspect understood his rights at the outset.

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B. Deception During Interrogation Deception to
Induce Rights Waiver

• Moran v. Burbine (6-3) (1986)
• Deceiving public defender about police plan
  to interrogate defendant and failing to tell
  defendant that public defender had tried to reach
  him did not invalidate rights warning and
  confession

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B. Deception During Interrogation Deception to
Induce Rights Waiver

• Colorado v. Spring (7-2) (1987)
• Spring nevertheless insists that the failure to
  inform him that he would be questioned about the
  murder constituted official
  "trickery" sufficient
  to invalidate
  his waiver of his Fifth Amendment
  privilege we
  reject his conclusion.

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B. Deception During Interrogation Deception to
Avoid Rights Warning

• Sixth Amendment caveat for indicted or formally
  charged defendants
• Right to counsel violated when jailhouse
  informant, LEO posing as non-LEO
  or other
  government agent
  deliberately elicits
  incriminating
  statements once adversarial
  judicial
  proceedings have
  begun

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B. Deception During Interrogation Deception
AFTER Rights Waiver

• Colorado v. Connelly (7-2) (1986)
• Some police overreaching must be present
• Voluntariness
• Determined by totality of circumstances
• Nature, number duration of interrogator ploys
• Susceptibility of subject

United States v. LeBrun
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B. Deception During Interrogation Deception
AFTER Rights Waiver

• Interrogator tactics
• Violence
• Threats of violence
• Bribes
• Deprivation
• Environmental manipulation
• Deception and trickery

• Susceptibility
• Age
• Education
• Intelligence
• Experience
• Pain
• Intoxication
• Fatigue
• Mental instability

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B. Deception During Interrogation Deception
AFTER Rights Waiver

• Colorado v. Connelly (7-2) (1986)
• Some police overreaching must be present
• Voluntariness
• Determined by totality of circumstances
• Nature, number duration of interrogator ploys
• Susceptibility of subject

Fundamental Fairness
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B. Deception During Interrogation Deception
AFTER Rights Waiver

• Interrogator misbehavior offends two societal
  values

Voluntariness -Overborne Will Due Process Shameful LEO Behavior
Reliability False Confession Evidence Erroneous convictions
Deception will render confession involuntary when
it is calculated to produce a false statement
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B. Deception During Interrogation Deception
AFTER Rights Waiver

• Interrogator misbehavior offends two societal
  values

Voluntariness -Overborne Will Due Process Shameful LEO Behavior
Reliability False Confession Evidence Erroneous convictions
Deception will render confession involuntary when
it is so extreme it could reasonably make an
innocent person confess
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B. Deception During Interrogation Deception
AFTER Rights Waiver
Deception will render confession involuntary when
it is so extreme it could reasonably make an
innocent person confess

• Interrogator deception can misrepresent
• Past What happened
• Present Strength of evidence
• Future Consequences

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B. Deception During Interrogation Deception
AFTER Rights Waiver
Deception will render confession involuntary when
it is so extreme it could reasonably make an
innocent person confess

• Interrogator deception can misrepresent
• Past What happened
• Present Strength of evidence
• Future Consequences

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B. Deception During Interrogation Deception to
Induce Rights Waiver
LEO know victim is dead, but D doesnt know victim is dead LEO know victim is dead, but D doesnt know victim is dead LEO know victim is dead, but D doesnt know victim is dead LEO know victim is dead, but D doesnt know victim is dead LEO know victim is dead, but D doesnt know victim is dead
D doesnt ask, but LEO assure Dont worry, no ones hurt. D had accidental discharge toward deserted woods didnt see victim on path on way home from school D fired warning shot toward crowd intending to miss thinks he missed D shot intending to wound victim thinks he wounded victim
D doesnt ask, but LEO assure No ones hurt bad. D had accidental discharge toward deserted woods didnt see victim on path on way home from school D fired warning shot toward crowd intending to miss thinks he missed D shot intending to wound victim thinks he wounded victim
D asks and LEO respond Dont worry, no ones hurt. D had accidental discharge toward deserted woods didnt see victim on path on way home from school D fired warning shot toward crowd intending to miss thinks he missed D shot intending to wound victim thinks he wounded victim
D asks and LEO respond No ones hurt bad. D had accidental discharge toward deserted woods didnt see victim on path on way home from school D fired warning shot toward crowd intending to miss thinks he missed D shot intending to wound victim thinks he wounded victim
D asks and LEO respond Dont worry about that. D had accidental discharge toward deserted woods didnt see victim on path on way home from school D fired warning shot toward crowd intending to miss thinks he missed D shot intending to wound victim thinks he wounded victim
Low Risk
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B. Deception During Interrogation Deception
AFTER Rights Waiver
Deception will render confession involuntary when
it is so extreme it could reasonably make an
innocent person confess

• Interrogator deception can misrepresent
• Past What happened
• Present Strength of evidence
• Future Consequences

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B. Deception During Interrogation Deception
AFTER Rights Waiver
Facts Law
Strength of Evidence Strength of Evidence
Seriousness or Existence of Offense Seriousness or Existence of Offense
Likelihood of Consequences Likelihood of Consequences
Seriousness of Consequences Seriousness of Consequences
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B. Deception During Interrogation Deception
AFTER Rights Waiver
Deception will render confession involuntary when
it is so extreme it could reasonably make an
innocent person confess

• Interrogator deception can misrepresent
• Past What happened
• Present Strength of evidence
• Future Consequences
• Promises of immunity Positive reinforcement
• Threats Negative reinforcement
• Resembles defenses of duress and necessity

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B. Deception During Interrogation Deception
AFTER Rights Waiver
Facts Degree of Coercion Law
Strength of Evidence
Seriousness or Existence of Offense
Likelihood of Consequences
Seriousness of Consequences
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B. Deception During Interrogation Deception
AFTER Rights Waiver
Fundamental Fairness

• WHAT is the MOTIVATING VALUE the deception is
  designed to exploit?

• HOW is the interrogator exploiting that
  MOTIVATING VALUE?

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II. The Law and Deception Operations

• Entrapment
• Deception during Interrogation
• Ruse Entries to Search or Arrest
• The Undercover LEO
• Common Elements

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C. Ruse Entries to Search or Arrest
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C. Ruse Entries to Search or Arrest

• Entry with warrant authorizing compromise of REP
• Primary issue Noncompliance with
  knock-and-announce statute
• General resolution No-knock execution OK IF
• Warrant authorizes OR
• Circumstances dictate OR
• Entry gained by ruse

Reality trumps prediction
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C. Ruse Entries to Search or Arrest

• NO warrant authorizing
  compromise of REP
• Ruse entry to search
• Ruse entry to arrest

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C. Ruse Entries to Search or Arrest

• NO warrant authorizing
  compromise of REP
• Ruse entry to search
• Posing as criminal visitor
• Posing as non-criminal third party
• Accompanying non-LEO government visitor on
  legitimate business
• Posing as non-LEO government visitor
• Pretending to have a search warrant

Low Risk
Higher Risk
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C. Ruse Entries to Search or Arrest

• NO warrant authorizing
  compromise of REP
• Ruse entry to search
• Ruse entry to arrest
• Entering arrestees premises
• Entering third partys premises

Low Risk
High Risk
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II. The Law and Deception Operations

• Entrapment
• Deception during Interrogation
• Ruse Entries to Search or Arrest
• The Undercover LEO
• Common Elements

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D. The Undercover LEO

• Focus upon what UC does
• Entrap
• Interrogate
• Enter, search and seize
• Actual identity seldom
  an issue
• Chosen role can impact
  legal resolution

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II. The Law and Deception Operations

• Entrapment
• Deception during Interrogation
• Ruse Entries to Search or Arrest
• The Undercover LEO
• Common Elements

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E. Common Elements

• Legality turns on totality of circumstances and
  is determined case-by-case
• Factors deemed relevant by judges also affect
  juries and communities
• Examples
• Targeted crime or criminal is
  WORTHWHILE TARGET
• Deception is NECESSARY because other enforcement
  alternatives are markedly less
  likely to succeed

Totality of Circumstances
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E. Common Elements

• Legality influenced by due process and
  fundamental fairness considerations
• Examples
• Misrepresentations do NOT encroach upon
• Trial judge rulings on admissibility
• Prosecutorial discretion
• Misrepresentations do not
  facilitate UNDUE COERCION
• Deception MOTIVATES target
  in UNSYMPATHETIC way

Due Process and Fundamental Fairness
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III. Beyond Bare Legal Compliance

• Adding Elegance to the Design
• Adding Jury Appeal and Avoiding Jury
  Nullification
• Maximizing Sentence
• Anticipating Appeal
• Enhancing Community Relations

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III. Beyond Bare Legal Compliance

• Adding Elegance to the Design
• Adding Jury Appeal and Avoiding Jury
  Nullification
• Maximizing Sentence
• Anticipating Appeal
• Enhancing Community Relations

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A. Adding Elegance to the Design

• Nailing the Elements
• Elements checklist
• Mens rea
• Circumstances
• Actus reus
• Corroborating
  weaknesses
• Admissibility
• Credibility

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A. Adding Elegance to the Design

• Connecting the Dots
• Crime
• Lesser-included offenses
• Kindred crimes
• Pre-empting defenses
• Criminals
• Co-conspirators
• Accessories

? Crime ? ?










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A. Adding Elegance to the Design

• Right-sizing Consequences
• Right crime
• If we just can prove
• Right criminal
• Criminal customers vs.
  criminal suppliers
• Little fish vs. big fish
• Dabblers in crime vs.
  criminal multi-taskers

? Crime .
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III. Beyond Bare Legal Compliance

• Adding Elegance to the Design
• Adding Jury Appeal and Avoiding Jury
  Nullification
• Maximizing Sentence
• Anticipating Appeal
• Enhancing Community Relations

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B. Adding Jury Appeal and Avoiding Jury
Nullification

• From a jurors perspective, are we targeting the
  right crime?
• This crime is harmful
• This crime is big
• Large-scale,
• Pervasive
• Otherwise aggravated?
• This crime is being committed more often

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B. Adding Jury Appeal and Avoiding Jury
Nullification

• From a jurors perspective, are we targeting the
  right crime?
• Realistically, there are no effective enforcement
  alternatives to reduce the incidence of this
  particular crime or convict this particular
  criminal.

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B. Adding Jury Appeal and Avoiding Jury
Nullification

• From a jurors perspective, are we targeting the
  right criminals?
• Criminal otherwise dangerous to community?
• Minor crime to catch
  major criminal?
• Minor crime to catch
  law-abiding citizen to
  
  improve enforcement statistics?

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B. Adding Jury Appeal and Avoiding Jury
Nullification
Fundamental Fairness

• WHAT is the MOTIVATING VALUE the deception is
  designed to exploit?

• HOW is the investigator exploiting that
  MOTIVATING VALUE?

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B. Adding Jury Appeal and Avoiding Jury
Nullification
Fundamental Fairness

• WHAT is the MOTIVATING VALUE the deception is
  designed to exploit?

• Some motivating values engender jury sympathy
• Suspect trying to pro-tect others more
  sym-pathetic than if acting only out of
  self-interest

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B. Adding Jury Appeal and Avoiding Jury
Nullification
Motivating Value Motivating Value
Ethics or Conscience Ethics or Conscience
Religion Religion
Family Honor Family Honor
Status or Reputation Status or Reputation
Punitive Consequences Punitive Consequences
Money Money
Self Others
Higher Risk
Low Risk
Higher Risk
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B. Adding Jury Appeal and Avoiding Jury
Nullification
Fundamental Fairness

• Be a little wary of appealing to group loyalty to
  sympathetic groups

• HOW is the investigator exploiting that
  MOTIVATING VALUE?

Religion or veteran vs.
Street gang or Aryan
Brotherhood
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B. Adding Jury Appeal and Avoiding Jury
Nullification
Fundamental Fairness

• Be more wary of falsely affiliating with
  suspects membership in sympathetic groups
• Religion
• Veteran

• HOW is the investigator exploiting that
  MOTIVATING VALUE?

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B. Adding Jury Appeal and Avoiding Jury
Nullification
Observations Specific to Interrogation

• Qualitative Unsympathetic motives
  affiliations
• Timing Deception is NECESSARY because of
  repeated lies or evasions

• HOW is the interrogator exploiting that
  MOTIVATING VALUE?
• Quantitative Sparing use to avoid excessive
  jury identification

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III. Beyond Bare Legal Compliance

• Adding Elegance to the Design
• Adding Jury Appeal and Avoiding Jury
  Nullification
• Maximizing Sentence
• Anticipating Appeal
• Enhancing Community Relations

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C. Maximizing Sentence

• Statutory Aggravating Factors
• Sentencing Guidelines
• Offense conduct
• Adjustments
• Victim impact
• Role in offense
• Departures
• Aggravation
• Mitigation
• Common-sense aggravation

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III. Beyond Bare Legal Compliance

• Adding Elegance to the Design
• Adding Jury Appeal and Avoiding Jury
  Nullification
• Maximizing Sentence
• Anticipating Appeal
• Enhancing Community Relations

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D. Anticipating Appeal

• Issue du jour
• Issue du demain
• Corroborating the proof

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III. Beyond Bare Legal Compliance

• Adding Elegance to the Design
• Adding Jury Appeal and Avoiding Jury
  Nullification
• Maximizing Sentence
• Anticipating Appeal
• Enhancing Community Relations

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E. Enhancing Community Relations

• Departmental public affairs
  officer in loop
• OPSEC concerns
• Publicized veiled warning
• Post-operation publicity
• Maintaining public trust in law enforcement
  agencies, operations and personnel

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E. Enhancing Community Relations

• Entrapment
• May lower community trust department reputation
• May look like targeting disparate impact
• May pose ancillary risks
• Deception during interrogation
• Widespread deception may lead to reduced waivers
  by suspects and informant cooperation
• Ruse Entries
• Can endanger or reduce efficiency of other
  agencies, etc.

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Conclusion
?
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Fruit of the Poisonous Tree
Missouri v. Seibert (S.Ct. 28 June 2004)

• Facts
• Patrices 12-year-old son, Jonathan, had cerebral
  palsy and died in his sleep
• Fearing neglect charges because Jonathan had bed
  sores, Patrices 2 teenage sons and 2 of their
  friends decided to burn the trailer
• Patrice was present when they decided to leave
  Donald, a mentally ill teenager living with the
  family, in the trailer when they set it afire to
  avoid charges of neglect

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Fruit of the Poisonous Tree
Missouri v. Seibert (S.Ct. 28 June 2004)

• Facts
• Darian and a friend set the fire, and Donald died
• Five days later, Rolla police picked up Patrice
  at the hospital Darian had been burned at 3 am
  and took her to Detective Hanrahan

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Fruit of the Poisonous Tree
Missouri v. Seibert (S.Ct. 28 June 2004)

• Facts
• Patrice is left alone for 15-20 minutes
• Detective Hanrahan questions her without warnings
  for 30-40 minutes
• Detective Hanrahan squeezes Patrices arm
  repeatedly while saying, Donald was also to die
  in his sleep.
• Patrice implicates herself

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Fruit of the Poisonous Tree
Missouri v. Seibert (S.Ct. 28 June 2004)

• Facts
• Patrice given 20-minute coffee and cigarette
  break
• Hanrahan returns, turns on tape and gives Miranda
  warning
• Patrice repeats admission

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Fruit of the Poisonous Tree
Missouri v. Seibert (S.Ct. 28 June 2004)

• Facts
• Hanrahan testifies that he made a conscious
  decision to withhold Miranda warnings, thus
  resorting to an interrogation technique he had
  been taught question first, then give the
  warnings, and then repeat the question until I
  get the answer that shes already provided
  once.
• Initial, unwarned admission suppressed, but
  later, warned admission admitted
• Patrice convicted of second-degree murder

82
Fruit of the Poisonous Tree
Missouri v. Seibert (S.Ct. 28 June 2004)

• Issue
• Does the question-first technique violate the
  constitutional character of the Miranda warning
  requirement sufficiently to require suppression
  of both admissions?
• Held 5-4 Yes
• Rationale
• The manifest object of question-first is to get
  a confession the suspect would not make if the
  suspect understood his rights at the outset.

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Fruit of the Poisonous Tree
Missouri v. Seibert (S.Ct. 28 June 2004)

• Distinguishing Elstad
• Completeness and details of questions and answers
  in the first round of questioning
• Degree to which the two statements overlap
• Timing and setting of first and second rounds
• Continuity of interrogators
• Degree to which second
  round interrogator
  treated
  the second round as a
  continuation of the first
  round

Seibert Deliberate vs.
Elstad Mistake
Cleansing warning