If you are a drug dealer and sell an undercover police officer some of your ‘product’, the officer can arrest you and use your ‘product’ as evidence, even though said officer just committed an illegal act. The same goes for an officer soliciting a prostitute; while the act of soliciting is illegal, as long as it is done during the investigation, the evidence gathered during the solicitation can be used as evidence.
Defense attorneys know this is case law and usually won’t argue about it unless there are extenuating circumstances.
But the Washington State Bar Association wants the state supreme court to make it illegal for officers to pose as attorneys when they are attempting to gather DNA evidence pertaining to a murder investigation.
The detectives in the case in question sent a letter to a murder suspect, posing as lawyers, asking if the suspect wanted to join in a class-action lawsuit. The suspect filled out the form, licked the envelope and sent the suit paperwork back to them. The detectives took saliva samples from the envelope lid and tested it against other DNA found on the victim. It matched and the suspect was arrested.
It is a gross misdemeanor in Washington to practice law without a license, but if you read this link and everything that went on in the case that is being looked at, I can’t see this as being any different that the two examples I gave in the opening paragraph.
I remember an episode of COPS where detectives sent out letters to people with outstanding warrants stating that they had won a free TV set in some made up sweepstakes contest. The detectives had a 95% response rate that day, no one got hurt and no ‘No Knock’ forced entries had to be made to apprehend the criminals.
Maybe if criminals weren’t so greedy and stupid, we wouldn’t have to worry about cops posing as lawyers.
To me, when the people enforcing the law use what is tantamount to entrapment, they are acting no better than the criminals they hope to catch in the act. “The ends justifies the means” doesn’t work here, mostly because criminals use the same logic, like a drug dealer selling dope because he has kids to feed; his little ones might have food to eat and get a shiny new bike for Christmas, but that doesn’t justify the lives affected by the chemicals they distribute. The people enforcing the law have an obligation to hold themselves to a higher moral standard than those living outside of it, even if it costs them a few arrests.
Is it wrong to be an idealist?
Bullfrog,
Entrapment is a specific legal concept that I really haven’t considered since law school, so I won’t get into the specifics of what is or is not unlawful entrapment under the law. However, I’m guessing that what you mean by “entrapment” is a situation in which the undercover police officer, by his actions, causes the criminal to commit a criminal act that he or she otherwise would not have committed.
Now, if the criminal is habitually committing crimes (as in the case of a dealer), and the police officer is just posing as another customer to obtain the required evidence, there’s nothing objectionable about that, it’s just routine police work.
But in this case, the police weren’t even asking the fellow to commit a criminal act, they were just getting him to provide critical evidence (DNA) that would otherwise be harder (but certainly not impossible) for them to obtain. For example, all it would take is to swear out a warrant to search the suspect’s apartment or car for DNA evidence related to the murder victim. Even if the police didn’t find any, they would likely find plenty of the suspect’s DNA (on, say, his toothbrush). And they’d be able to use that against him. But instead of costing taxpayer dollars with an expensive search, they were able to get the evidence in a clever way. Bravo!
On the general point of police unlawfully posing as attorneys, seems to me that this sort of argument would apply to any profession if adopted. So police couldn’t also pose as doctors, accountants, and (if in California) estheticians (hairdressers), contractors, massage therapists, and the 100 or so other licensed occupations in California. That would put quite the crimp in undercover operations, wouldn’t it?
On the other hand, I’m very leery of the idea that someone might engage a criminal defense attorney and find out later that he’d spilled his guts to a cop posing as an attorney as part of a sting operation. That would truly be unlawful entrapment, in addition to a whole host of other things. But it doesn’t seem to me the cops in this case came close to that sort of behavior.
It appears that my understanding of entrapment was incorrect. The point you made about:
“causes the criminal to commit a criminal act that he or she otherwise would not have committed.”
changes my perspective a bit. Thanks.
What about in a broader sense, using deception to catch someone in a crime? For instance, if you applied it to the drug dealer scenario, is it wrong for an undercover detective to pose as a civilian, even to the point of denying his status as a law enforcement officer when asked, is that acceptable? We have all seen COPS where a criminal gives himself a false sense of security by asking, “Are you a cop?” and takes the undercover officers answer at face value just before the handcuffs go on.
That all being said, I am just raising what I think is an intriguing point but in no way do I feel that we should give our officers them the authority to enforce the law then hamstring them at the same time. That is counter-productive.