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Deception Operations: Police Attorney Role - 45 Minutes -. Jeff Fluck Senior Instructor Legal Division Federal Law Enforcement Training Center

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deception operations police attorney role 45 minutes

Deception Operations: Police Attorney Role - 45 Minutes -

Jeff Fluck Senior Instructor

Legal Division Federal Law Enforcement Training Center

912-554-4218 – Jeff.Fluck@dhs.gov

rules of engagement
Rules of Engagement
  • Questions anytime
    • Silence = Understanding
    • Please:
      • Hand up
      • Courtroom volume

The Slides

The Handout

the objective

Identify ways that police attorney review can improve outcomes of police deception operations

The Objective

1. Prosecutable cases 2. Winnable cases 3. Post-verdict success 4. Community relations

overview
Overview
  • Introduction
  • The Law and Deception Operations
    • Entrapment
    • Deception during Interrogation
    • Ruse Entries to Search or Arrest
    • The Undercover LEO
    • Common Elements
overview5
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
i introduction
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
i introduction7
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]
ii the law and deception operations
II. The Law and Deception Operations
  • Entrapment
  • Deception during Interrogation
  • Ruse Entries to Search or Arrest
  • The Undercover LEO
  • Common Elements
ii the law and deception operations9
II. The Law and Deception Operations
  • Entrapment
  • Deception during Interrogation
  • Ruse Entries to Search or Arrest
  • The Undercover LEO
  • Common Elements
a entrapment law enforcement mission
A. Entrapment: Law Enforcement Mission

?

Stop Crime Catch Criminals

a entrapment law enforcement mission11
A. Entrapment: Law Enforcement Mission

?

Create Crime Create Criminals

a entrapment variations
A. Entrapment: Variations
analysis of classic entrapment defense

No

Yes

Yes

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?

analysis of due process entrapment defense

No

In which case…

Yes

UNLESS [sometimes] accused NEEDS convicting

Analysis of Due Process Entrapment Defense

Government Inducement: Was Gov’t’s inducement so outrageous it shocks the judicial conscience?

Entrapment defense FAILS

Entrapment defense SUCCEEDS

defeating entrapment
Defeating Entrapment
  • How does Government defeat the defense of entrapment at trial? By showing:
    • The Government’s inducement was mild
    • The defendant was predisposed to commit the offense
defeating entrapment16
Mild inducements:

Scheme underway

Reasonable offer

Single offer

Appeals to unsympathetic motive

Merely provides opportunity

Defeating Entrapment
defeating entrapment17
Problematic inducements:

Gov’t hatches scheme

Outrageous offer

Excessively repeated offers

Appeals to noble motive

Violence

Threats of violence

Defeating Entrapment
defeating entrapment18
Defendant predisposed:

Defendant hatches scheme

Prior criminal history

Possession of instrumentalities

Criminal know-how

Ready acceptance

Proposes further crimes

Defeating Entrapment
defeating entrapment19
Defendant NOT predisposed:

No criminal record

First offense

Otherwise law-abiding

Weak-willed, emotionally unstable, or otherwise easily-influenced or vulnerable

Defeating Entrapment
defeating entrapment20
Mild inducement

Defendant predisposed

Nature and seriousness of offense:

This crime endangers community

This crime is on the increase

Lack of effective enforcement alternatives

Defeating Entrapment
defeating entrapment21
Mild inducement

Defendant predisposed

Nature and seriousness of offense

Threat posed by criminal

This criminal endangers community

This criminal isn’t slowing down

Lack of effective enforcement alternatives to convict this criminal

Defeating Entrapment
interlude o 3 experience
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

ii the law and deception operations23
II. The Law and Deception Operations
  • Entrapment
  • Deception during Interrogation
  • Ruse Entries to Search or Arrest
  • The Undercover LEO
  • Common Elements
b deception during interrogation

Often Tolerated

Rarely Tolerated

B. Deception During Interrogation

Deception

CONVICTION

Confessions and admissions

Interrogation

Knowing, intelligent & voluntary waiver

Miranda rights warning

b deception during interrogation deception to induce rights waiver
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.”
b deception during interrogation deception to induce rights waiver26
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.”
b deception during interrogation deception to induce rights waiver27
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
b deception during interrogation deception to induce rights waiver28
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.”
b deception during interrogation deception to avoid rights warning
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
b deception during interrogation deception after rights waiver
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

b deception during interrogation deception after rights waiver31
Interrogator tactics

Violence

Threats of violence

Bribes

Deprivation

Environmental manipulation

Deception and trickery

Susceptibility

Age

Education

Intelligence

Experience

Pain

Intoxication

Fatigue

Mental instability

B. Deception During Interrogation Deception AFTER Rights Waiver
b deception during interrogation deception after rights waiver32
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

b deception during interrogation deception after rights waiver33
B. Deception During Interrogation Deception AFTER Rights Waiver
  • Interrogator misbehavior offends two societal values:

Deception will render confession involuntary when it is calculated to produce a false statement

b deception during interrogation deception after rights waiver34
B. Deception During Interrogation Deception AFTER Rights Waiver
  • Interrogator misbehavior offends two societal values:

Deception will render confession involuntary when it is so extreme it could reasonably make an innocent person confess

b deception during interrogation deception after rights waiver35
B. Deception During Interrogation Deception AFTER Rights Waiver
  • Interrogator deception can misrepresent:
    • Past: What happened
    • Present: Strength of evidence
    • Future: Consequences

Deception will render confession involuntary when it is so extreme it could reasonably make an innocent person confess

b deception during interrogation deception after rights waiver36
B. Deception During Interrogation Deception AFTER Rights Waiver
  • Interrogator deception can misrepresent:
    • Past What happened
    • Present: Strength of evidence
    • Future: Consequences

Deception will render confession involuntary when it is so extreme it could reasonably make an innocent person confess

b deception during interrogation deception after rights waiver38
B. Deception During Interrogation Deception AFTER Rights Waiver
  • Interrogator deception can misrepresent:
    • Past What happened
    • Present: Strength of evidence
    • Future: Consequences

Deception will render confession involuntary when it is so extreme it could reasonably make an innocent person confess

b deception during interrogation deception after rights waiver40
B. Deception During Interrogation Deception AFTER Rights Waiver
  • 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

Deception will render confession involuntary when it is so extreme it could reasonably make an innocent person confess

b deception during interrogation deception after rights waiver41

LowRisk

High Risk

Minimization

Promises / Immunity

Commiseration

Threats

B. Deception During Interrogation Deception AFTER Rights Waiver
b deception during interrogation deception after rights waiver42
WHAT is the MOTIVATING VALUE the deception is designed to exploit?

HOW is the interrogator exploiting that MOTIVATING VALUE?

B. Deception During Interrogation Deception AFTER Rights Waiver

Fundamental Fairness

ii the law and deception operations43
II. The Law and Deception Operations
  • Entrapment
  • Deception during Interrogation
  • Ruse Entries to Search or Arrest
  • The Undercover LEO
  • Common Elements
c ruse entries to search or arrest

Ruse Entry

Arrest

Search

Knock and Announce

Warrant

No Warrant

C. Ruse Entries to Search or Arrest
c ruse entries to search or arrest45

Very Low Risk

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

c ruse entries to search or arrest46
C. Ruse Entries to Search or Arrest
  • NO warrant authorizing compromise of REP:
    • Ruse entry to search
    • Ruse entry to arrest
c ruse entries to search or arrest47
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

c ruse entries to search or arrest48
C. Ruse Entries to Search or Arrest
  • NO warrant authorizing compromise of REP:
    • Ruse entry to search
    • Ruse entry to arrest:
      • Entering arrestee’s premises
      • Entering third party’s premises

Low Risk

High Risk

ii the law and deception operations49
II. The Law and Deception Operations
  • Entrapment
  • Deception during Interrogation
  • Ruse Entries to Search or Arrest
  • The Undercover LEO
  • Common Elements
d the undercover leo
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
ii the law and deception operations51
II. The Law and Deception Operations
  • Entrapment
  • Deception during Interrogation
  • Ruse Entries to Search or Arrest
  • The Undercover LEO
  • Common Elements
e common elements
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

e common elements53
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

iii beyond bare legal compliance
III. Beyond Bare Legal Compliance
  • Adding Elegance to the Design
  • Adding Jury Appeal and Avoiding Jury Nullification
  • Maximizing Sentence
  • Anticipating Appeal
  • Enhancing Community Relations
iii beyond bare legal compliance55
III. Beyond Bare Legal Compliance
  • Adding Elegance to the Design
  • Adding Jury Appeal and Avoiding Jury Nullification
  • Maximizing Sentence
  • Anticipating Appeal
  • Enhancing Community Relations
a adding elegance to the design
A. Adding Elegance to the Design
  • Nailing the Elements
    • Elements checklist:
      • Mens rea
      • Circumstances
      • Actus reus
    • Corroborating weaknesses
      • Admissibility
      • Credibility
a adding elegance to the design57
A. Adding Elegance to the Design

Crime 

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

a adding elegance to the design58
A. Adding Elegance to the Design

Crime .

  • 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
iii beyond bare legal compliance59
III. Beyond Bare Legal Compliance
  • Adding Elegance to the Design
  • Adding Jury Appeal and Avoiding Jury Nullification
  • Maximizing Sentence
  • Anticipating Appeal
  • Enhancing Community Relations
b adding jury appeal and avoiding jury nullification
B. Adding Jury Appeal and Avoiding Jury Nullification
  • From a juror’s 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
b adding jury appeal and avoiding jury nullification61
B. Adding Jury Appeal and Avoiding Jury Nullification
  • From a juror’s 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.
b adding jury appeal and avoiding jury nullification62
B. Adding Jury Appeal and Avoiding Jury Nullification
  • From a juror’s 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?
b adding jury appeal and avoiding jury nullification63
WHAT is the MOTIVATING VALUE the deception is designed to exploit?

HOW is the investigator exploiting that MOTIVATING VALUE?

B. Adding Jury Appeal and Avoiding Jury Nullification

Fundamental Fairness

b adding jury appeal and avoiding jury nullification64
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

B. Adding Jury Appeal and Avoiding Jury Nullification

Fundamental Fairness

b adding jury appeal and avoiding jury nullification66
Be a little wary of appealing to group loyalty to sympathetic groups:

HOW is the investigator exploiting that MOTIVATING VALUE?

B. Adding Jury Appeal and Avoiding Jury Nullification

Fundamental Fairness

Religion or veteran vs. Street gang or Aryan Brotherhood

b adding jury appeal and avoiding jury nullification67
Be more wary of falsely affiliating with suspect’s membership in sympathetic groups:

Religion

Veteran

HOW is the investigator exploiting that MOTIVATING VALUE?

B. Adding Jury Appeal and Avoiding Jury Nullification

Fundamental Fairness

b adding jury appeal and avoiding jury nullification68
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

B. Adding Jury Appeal and Avoiding Jury Nullification

Observations Specific to Interrogation

iii beyond bare legal compliance69
III. Beyond Bare Legal Compliance
  • Adding Elegance to the Design
  • Adding Jury Appeal and Avoiding Jury Nullification
  • Maximizing Sentence
  • Anticipating Appeal
  • Enhancing Community Relations
c maximizing sentence
C. Maximizing Sentence
  • Statutory Aggravating Factors
  • Sentencing Guidelines
    • Offense conduct
    • Adjustments
      • Victim impact
      • Role in offense
    • Departures
      • Aggravation
      • Mitigation
  • Common-sense aggravation
iii beyond bare legal compliance71
III. Beyond Bare Legal Compliance
  • Adding Elegance to the Design
  • Adding Jury Appeal and Avoiding Jury Nullification
  • Maximizing Sentence
  • Anticipating Appeal
  • Enhancing Community Relations
d anticipating appeal
D. Anticipating Appeal
  • Issue du jour
  • Issue du demain
  • Corroborating the proof
iii beyond bare legal compliance73
III. Beyond Bare Legal Compliance
  • Adding Elegance to the Design
  • Adding Jury Appeal and Avoiding Jury Nullification
  • Maximizing Sentence
  • Anticipating Appeal
  • Enhancing Community Relations
e enhancing community relations
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
e enhancing community relations75
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.
fruit of the poisonous tree missouri v seibert s ct 28 june 2004
Fruit of the Poisonous Tree: Missouri v. Seibert (S.Ct. 28 June 2004)
  • Facts:
    • Patrice’s 12-year-old son, Jonathan, had cerebral palsy and died in his sleep
    • Fearing neglect charges because Jonathan had bed sores, Patrice’s 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
fruit of the poisonous tree missouri v seibert s ct 28 june 200478
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
fruit of the poisonous tree missouri v seibert s ct 28 june 200479
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 Patrice’s arm repeatedly while saying, “Donald was also to die in his sleep.”
    • Patrice implicates herself
fruit of the poisonous tree missouri v seibert s ct 28 june 200480
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
fruit of the poisonous tree missouri v seibert s ct 28 june 200481
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 she’s already provided once.’”
    • Initial, unwarned admission suppressed, but later, warned admission admitted
    • Patrice convicted of second-degree murder
fruit of the poisonous tree missouri v seibert s ct 28 june 200482
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.”
fruit of the poisonous tree missouri v seibert s ct 28 june 200483
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