One of the very important (but hotly contested) issues in criminal defense is when a law enforcement officer is permitted to lie to a target or suspect – if at all.
Despite what many in the public believe, law enforcement officers are permitted under the law to use what’s called “deception” or lies in order to elicit a confession or support a hunch.
Does a Cop Have to Tell You That They Are a Cop?
Many individuals believe the myth that if you ask a law enforcement officer if they are in fact a member of a law enforcement establishment that they have to tell you.
For example, many defendants involved in the drug trade – and we’ve also seen it in the sex trade – where, before the transaction occurs, the individual stops and asks an agent whether or not they are a member of law enforcement.
When the agent says no, the target believes that if the individual is, in fact, a member of law enforcement, any transactions or statements that do occur would be deemed illegal in that context. Some may believe that these transactions and statements would ultimately be suppressed because the police officer lied. This is not true.
4th Amendment Implications
We’ve seen it also play out in a number of investigatory contexts from street crimes to white collar criminal investigations.
The fact that the matter is that the 4th amendment of the United States Constitution protects U.S. citizens from being coerced – both physically into the commission of criminal conduct and in regard to the eliciting of confessions to the criminal conduct.
However, the law does allow for law enforcement officers to utilize certain levels of deception during investigations.
Not All “Deception” will be Deemed “Coercion.”
In a legal context, when suspects claim that a particular statement or action was coerced by deception, the court then requires that the government then prove that the statement was not, in fact, a product of coercion.
“Totality of the Circumstances”
Specifically, when a court has to make an assessment of whether the admitted deception by a police officer amounted to coercion, the court will then look at the totality of the circumstances surrounding the statement or conduct.
Most recently – in New York – courts have said some pretty clear boundaries regarding the extent that police officers can go when using deception to obtain a statement from an individual.
People v. Avanti
In People v. Avanti, the court reversed a criminal conviction where a defendant had been charged with murdering his child.
In short, the court found that the police officers who had informed the defendant that:
- his child was still alive;
- that the mother of the child was at the child’s bedside; and
- that the mother would be arrested and removed from the child’s bedside if the defendant did not cooperate;
Outcome: The Court of Appeals found that this level of deception had crossed the lines of permissible coercion. The reason why the court believed that the police in Avanti had crossed the line was that the child had in fact been dead for quite some time and the mother of the child was not at the hospital and the defendant shared a unique emotional and psychological relationship with the child.
Holding: The court in Avanti went on to hold that no one may be coerced into waiving a constitutional privilege by withholding a right to engage in one’s occupation or any other substantive or fundamental exercise of life, liberty, and the pursuit of happiness. This particular portion of the decision in Avanti places restrictions on law enforcement officers that were previously not acknowledged.
Police Coercion in New York State
New York State is unable to expand on constitutional rights but not restrict them more than the federal constitution allows. New York City and New York State criminal procedure law hold that a statement will be deemed “involuntary” if it is obtained by a promise or statement of fact that creates a substantial risk that the defendant will falsely incriminate themselves.
Huntly Hearing
In New York State, generally, this issue is first heard and considered by a judge at a Huntley hearing. However, if a defendant is not successful in having a statement suppressed by a Huntley hearing, this issue can also be revisited at trial and a jury can ultimately decide whether a defendant’s statements and actions were the results of coercion by a law enforcement officer.
The issue of police deception and coercion through lies and misrepresentation takes on a much greater meaning for criminal defendants who may be facing false accusations.
The Mollen Commission
The Mollen Commission, also known as the City of New York Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department.
The purpose of the commission was to:
- examine and investigate “the nature and extent of corruption in the Department;
- evaluate the department’s procedures for preventing and detecting that corruption; and
- Recommend changes and improvements to those procedures.
According to the Mollen report, police corruption in 1994 was characterized by brutality, theft, abuse of authority, and active police criminality.”
What is “Testilying?” – Police Perjury
In the wake of the Mollen report, it was reported that false testimony given by police during judicial proceedings was so common that the police had coined a phrase called “testilying.”
Instead of following police guidelines and recognizing the constitutional requirements to justify a search, police will simply carry out their business as they please and swear that their version of events is the truth.
New York Times Survey on “Testilying”
In 2018 The New York times conducted a three–year survey regarding “testilying” by law enforcement officers in police reports and during judicial proceedings.
The New York Times found that during the period of 2015 to 2018, there were 25 cases where prosecutors had gone on record and dismissed cases based upon police officers and law enforcement officers giving false testimony under oath in New York.
List of Discredited Prosecutors
In 2019, in response to a Freedom of Information requests from various agencies, the District Attorney’s Offices in New York were required to release a previously hidden list of officers who had been found not to be credible by the particular prosecutor’s office in one or more instances. These lists were also made available on the Internet.
Cases We’ve Handled Involving Coercion
Having handled a wide variety of cases, we have experienced personal circumstances when members of our farm were in the position to have a case dismissed because the officer had misrepresented material facts.
#1) Queens County Trespassing and Attempted Burglary
One of our clients was arrested in an apartment complex in Queens.
Officer’s Alleged Claims: According to the officer’s written report, the officer had been doing a tour within the building. Then, while in the lobby of the building, the officer was able to observe our client trying to open various doors in the building. When the officer approached our client, our client attempted to flee. According to the officer, our client had no legitimate explanation or purpose for having been in the building and trying to open the various doors within the building.
Meeting the Client: As you might imagine, our client advocated their innocence and, over the course of a few meetings, persuaded our firm that he was in fact innocent. This particular criminal case was very important to our client because he was not only seeking to avoid a criminal record, but he was also seeking to avoid deportation.
Visiting the Crime Scene: By visiting the alleged crime scene members of our firm learned that the building in question was a small multi–family building that did not have open-door access – nor a doorbell system. We also learned that once entering past the vestibule of the building, while you could see directly up the flight of stairs, you could not see any doors of the apartments within the building. Finally, from speaking to the tenants and management of the building, we learned that video evidence showed that the front door was locked at all times and that there would have been no way for the officer to gain access to the building without being let in.
Conclusion: We immediately contacted the district attorney’s office prosecuting the case and, after consultation with the officer, the prosecutor learned that the officer was not alleged to have been let into the building. Rather, the officer was now claiming to have been given access to the building by the door being left open.
#2) Undercover Drug Arrest and Seizure of Automobile
Our client had their vehicle seized because it was allegedly used to transport narcotics. The government held the vehicle for over 15 months. The basis for holding the vehicle was an allegation that the vehicle was used in the commission of the drug crime. Vehicles used in the commission of illegal activity or purchased with the proceeds from the illegal activity may be seized by the government.
Officer’s Alleged Claims: According to the allegations, the woman’s significant other was driving the vehicle alone when he had met up with friends. At some point, one of his friends – who was not in the vehicle but standing on the sidewalk at the time talking to the significant other through the window – was approached by an undercover police officer to purchase narcotics.
Facts of the Event: According to the officer in the seizure order, the narcotics dealer reached through our client’s vehicle, removed a handful of baggies, and ultimately walked back over to the undercover with a handful of crack cocaine. The undercover officer stated that, at that time, he was handed two vials of crack cocaine from his closed hand, and three allegedly remained on our client’s person.
Seizure of Client’s Car: The undercover officer then alerted his team. Upon the arrival of his team members, one officer attempted to approach our client’s vehicle to make the arrest while the other officers arrested the narcotics dealer. According to the officer, our client was able to make a getaway in the vehicle. the vehicle was later recovered parked inside of a garage. That is when they seized the vehicle.
Review of the Seizure Order: After reviewing the seizure order provided to our client and obtaining the criminal case file of the actual narcotics dealer, our office learned that the same officer had sworn, under oath in a criminal complaint charging a narcotics dealer with criminal sale of a controlled substance, that while he had seen the narcotics dealer speaking to our client from the sidewalk – and our client never exited the vehicle – when he approached our client to purchase the drugs, the narcotic dealer moved away from our client’s vehicle, reached into his crotch, removed five viles of crack cocaine (two of which he sold to the undercover) and placed the remaining 3 back into his crotch area. Upon the arrival of additional members of the narcotics team they recovered the remaining three viles that the client had put in his crotch area.
Getting the Vehicle Back to Our Client: In order to have the vehicle returned to its rightful owner, we were first required to have the seizure order lifted by the court. Then, we needed consent to get the vehicle released by New York City Police Department’s Legal Bureau. Upon presentation of the material conflict and documentation to the District Attorney’s Office, they moved to vacate the seizure order. We had multiple discussions and exchanges with members of New York City Police Department Legal Bureau until, eventually, not being able to reconcile the material conflicts, they were forced to return the vehicle to our client who had been making payments on the vehicle for 15 months while not being able to drive it or access it in any way.
#3) Failure to Obtain Judicial Authorization for Wiretap
This case involved a three-week trial in which a detective investigator testified under oath and in front of a trial jury that he had supervised a wiretap on our client’s phone. This wiretap resulted in the detective obtaining implicit admissions of criminal conduct by our client.
Review of the Judicial Authorizations: Before trial, our firm had obtained the judicial authorizations for wiretaps in this particular case. What we found was that no judge had ever signed a wiretap for our client’s personal phone or business phone.
Confronting the Officer in Court: When confronted with that reality in front of the jury the prosecution objected and sought permission from the trial judge to explore the issue further – out of the presence of the jury.
When the detective investigator was placed back on the stand, under oath, and asked again if he had supervised wiretaps of either our client’s personal or business form he then said no and attempted to explain the original mix up.
Reality of the Situation: In reality, what had occurred was that, in the heat of the moment, the detective had decided to enhance his testimony without realizing that wiretapping any phones in the United States without authorization from a judge is clearly a state and a federal crime punishable by incarceration.
Potential Consequences for the Detective: Well, in that instance, the officer was able to avoid the judge either terminating their proceedings in favor of the defendant or instructing a jury that a law enforcement officer had perjured himself under oath and they should consider that when assessing the evidence.
Outcome of the Case: The jury, who was very vigilant in that case, did understand what they had seen. Ultimately, the jury did not vote to convict our client because, among other things, our office was able to prove that the officer was not credible.
Takeaway
In closing, it is worth noting that while all law enforcement officers do not lie, and every defendant who’s criminally charged is not guilty of the particular crime charged (if at all), the nature of criminal defense requires a high level of vigilance and open-mindedness in order to bring the truth to the forefront.
I’ve yet to see a trial judge or pretrial hearing judge presented with the fact that a law enforcement officer has committed perjury.
This always creates an awkward, but very worthy, position for judges and criminal defense attorneys because it is at that moment that the criminal defense attorney is required to force a tribunal to accept a fact that is not popular to the public.
However, it is essential that criminal defense attorneys hold the government to their standard of proof and provide the best possible defense for their clients in these situations.
