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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

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Deception Operations: Police Attorney Role - 45 Minutes -

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  1. 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

  2. Rules of Engagement • Questions anytime • Silence = Understanding • Please: • Hand up • Courtroom volume The Slides The Handout

  3. 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

  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

  6. 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

  7. 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]

  8. 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

  10. A. Entrapment: Law Enforcement Mission ? Stop Crime Catch Criminals

  11. A. Entrapment: Law Enforcement Mission ? Create Crime Create Criminals

  12. A. Entrapment: Variations

  13. 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?

  14. 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

  15. 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

  16. Mild inducements: Scheme underway Reasonable offer Single offer Appeals to unsympathetic motive Merely provides opportunity Defeating Entrapment

  17. Problematic inducements: Gov’t hatches scheme Outrageous offer Excessively repeated offers Appeals to noble motive Violence Threats of violence Defeating Entrapment

  18. Defendant predisposed: Defendant hatches scheme Prior criminal history Possession of instrumentalities Criminal know-how Ready acceptance Proposes further crimes Defeating Entrapment

  19. Defendant NOT predisposed: No criminal record First offense Otherwise law-abiding Weak-willed, emotionally unstable, or otherwise easily-influenced or vulnerable Defeating Entrapment

  20. 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

  21. 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

  22. 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

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

  24. Often Tolerated Rarely Tolerated B. Deception During Interrogation Deception CONVICTION Confessions and admissions Interrogation Knowing, intelligent & voluntary waiver Miranda rights warning

  25. 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.”

  26. 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.”

  27. 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

  28. 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.”

  29. 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

  30. 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

  31. 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

  32. 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

  33. 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

  34. 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

  35. 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

  36. 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

  37. B. Deception During Interrogation Deception to Induce Rights Waiver Low Risk

  38. 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

  39. Low Risk Moderate Risk B. Deception During Interrogation Deception AFTER Rights Waiver

  40. 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

  41. LowRisk High Risk Minimization Promises / Immunity Commiseration Threats B. Deception During Interrogation Deception AFTER Rights Waiver

  42. 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

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

  44. Ruse Entry Arrest Search Knock and Announce Warrant No Warrant C. Ruse Entries to Search or Arrest

  45. 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

  46. C. Ruse Entries to Search or Arrest • NO warrant authorizing compromise of REP: • Ruse entry to search • Ruse entry to arrest

  47. 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

  48. 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

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

  50. 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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