Tagged: law enforcement

Undercover Practices: A Comparison

POST WRITTEN BY: Lissa Griffin, Professor at Pace Law School & Rafael Wolff, Federal Judge in Brazil and SJD candidate at Pace Law School.

A recent editorial and recent articles in The New York Times address the growing use of undercover agents and their necessarily deceptive practices. The New York Times now reports that the use of undercover operations has expanded “with officers from at least 40 agencies posing as business people, welfare recipients, political protesters and even doctors or ministers to ferret out wrongdoing….” The justification is the efficiency and cost-savings over traditional investigation through tips, legwork, interviews, search warrants, and surveillance. No probable cause or search warrant is required.

Is such widespread deception part of our culture?

Maybe it’s just one of the choices we have to make given our Constitution. Our historic fear of centralized authority and the accompanying protection of the individual against government intrusion makes some other more overt investigatory techniques unavailable to us. Thus, for example, in the United Kingdom, recent terrorist legislation improved the Government’s ability to investigate and prevent terrorism by extending the permissible periods of pre-charge detention. Imminent terrorist events may now be averted by simply breaking up the terrorism groups, and enhanced questioning can be accomplished early on. Our bill of rights would prevent that. Thus, instead of investigating overtly, we investigate by deception.

Up until now, rules and guidelines have been inadequate. Now, apparently in response to the “Fast and Furious” undercover operation that allowed guns to travel to Mexico, the Department of Justice has  issued internal guidelines designed to “tighten oversight” of undercover operations. Before prosecutors approve of using undercover investigation, they must consider “whether an operation identifies a ‘clearly’ defined objective, whether it is truly necessary, whether it targets ‘significant criminal actors or entities,’ and other factors.” This is good.

So, does Brazil tolerate as much deception as the United States?  Our conclusion remains that Brazil’s statutory limits restrict deception and protect privacy to a much greater extent than do the US due process clause or recent agency guidelines.  Considering the efficiency of undercover operations, but considering the risks to third party privacy and even to the agent’s security, maybe Brazil needs to use more, and the United States less, of this particularly interesting investigative tool.

These articles raise questions about the scope of undercover investigations and about fair investigative tactics by government agents. An instructive comparison can be made between limits on undercover activity in the United States and in another country, for example, Brazil.

In Brazil, the use of undercover agents requires a judicial warrant authorizing the infiltration of a criminal organization. This is expressly stated by Law 11.343/06 (Article 53, I) and Law 12.850/13 (Article 10). A judge may only issue such a warrant if the government establishes: 1) evidence of organized criminal activities or narcotics offenses; and 2) it is impossible to produce the evidence by another less intrusive way (Law 12.850/13, Article 10). Those are both federal laws, as just the Federal Congress can legislate about criminal procedure. Organized criminal activity occurs when there is a criminal organization of four or more individuals that functions in a structured way and with a division of tasks, even informally, to obtain direct or indirect criminal advantage. To be considered a criminal organization, the activity should be punishable by a maximum prison sentence of more than four years. Law 12.850/12 also allows the use of undercover agents and other special investigative tools in case of transnational crime which Brazil is internationally obliged to eradicate (for sure, when the crime occurs in Brazilian soil) and transnational terrorist groups recognized by international organizations in which Brazil is a member.

The use of undercover agents is also legal in the investigation of crimes created by Law 11.343/06, that is, in investigations into narcotics crimes. This category was included by the legislature because of the considerable risk of danger in the organized narcotics business.

In addition, Law 12.850/13 requires that the conduct of the undercover agent be proportional to the goal  of the operation and provides that the agent will be criminally culpable for any excess (art. 13). The same article makes clear that the agent will not be liable if it was not reasonable to act differently in the case.  The legislation is very vague, however, leaving it to the court to fix the limits in the warrant.  For example, it will be the judge who, based on the values prescribed by the Constitution and statutes, will have to decide if it is reasonable to allow an agent to send child porn pictures during an investigation.  This is not an easy call, especially since there is no consistent case law about it.

However, interestingly, Brazil defines “undercover operations” much more narrowly than does the United States so that these strict requirements only apply to certain undercover conduct.  Brazilian statutes (Laws 11.343/06 and 12.850/13) use the term “infiltrated agent” to define the regulated investigative activity, not “undercover agent.”  Thus, the definition only applies to those operations that involve agents assuming false identities to infiltrate criminal organizations. The use of plain clothes officers to buy drugs without the use of a false identification would not be regulated by the statute. In such cases, the need for a warrant is not even discussed in the case law. (STJ, AgRg no AREsp 1.956/SP, Rel. Ministra MARIA THEREZA DE ASSIS MOURA, SEXTA TURMA, julgado em 21/06/2011, DJe 01/07/2011). Thus, the kind of conduct reported in The Times, for example —  the presence of a police officer in the middle of a political protest —  would not be considered conduct by an “infiltrated agent,” as long as a false identity is not used to allow infiltration in a criminal organization. On the other hand, an officer who pretends to be a child to uncover a criminal organization involving pedophilia in the internet, for example, would indeed be subject to the warrant requirement.

From the defense perspective, there is protection against entrapment (article 17 of the Brazilian Criminal Code). For example, a defendant will not be liable for possessing a child porn photo sent by an undercover agent if the court finds the defendant was entrapped. However, this defense will not protect the Defendant if he possesses other photos, for example.

In the United States, of course, police and prosecutorial use of undercover agents is limited only by the broad and permissive boundaries of the due process clause. SeeUnited States v. Cuervelo, 949 F.2d 559 (2d Cir. 1991). Unlike Brazil, in the United States there is no requirement of a warrant or of judicial supervision of any kind regarding undercover agents. In fact, the Supreme Court has made clear that the use of undercover agents – even when the agent wears a wire – does not constitute a “search” under the Fourth Amendment. Lopez v. United States, 373 U.S. 427 (1963); On Lee v. United States, 343 U.S. 747 (1952); Hoffa v. United States, 385 U.S. 293 (1966); and United States v. White, 401 U.S. 745 (1971). As the Court has reasoned, betrayal by ones associates is always a risk, so there is  no  expectation of privacy in those interactions if they involve an undercover agent. Given that there is no “search,” there is no warrant requirement or a requirement even of probable cause or reasonable suspicion to use undercover agents to obtain evidence. Nor are there any statutory limits to the practice. The only limitation is whether an undercover officer’s behavior “shocks the conscience” of the court. Readers will remember the stomach-pumping case that actually did shock the conscience of the Supreme Court. Rochin v. California, 342 U.S. 165 (1952).

The Sixth Amendment right to counsel, which attaches after arraignment, may limit the use of undercover agents – but only after charges have been brought and the defendant has been arraigned. That is because, under Massiah v. United States, 377 U.S. 201 (1964), and its progeny, law enforcement may not contact a defendant without going through defense counsel.

In the United States, now, there is not likely to be a consensus for restricting the use of undercover agents, although the discussion of this issue in the press is interesting. New York Times reports that the use of undercover agents is widening and now extends anywhere from sending fake protesters to demonstrations in front of the Supreme Court to creating false identities for doctors and ministers to investigate welfare or other fraud. Until now, at least, we have balanced our interests in privacy, our separation-of-powers-based willingness to give our prosecutors and police tremendous discretion in law enforcement, and our desire for crime control in favor of discretion and crime control. Brazil’s restriction of undercover intrusions to cases involving organized crime, narcotics, terrorism and other transnational crimes that are the object of international treaties – to seriously dangerous organizational criminal behavior that is – should command our attention. Maybe we should tailor the intrusion to protect against serious criminal conduct while protecting the increasingly shrinking sphere of privacy for the rest of us. Certainly, Brazil’s requirement of a showing that there is no less intrusive means to secure the evidence sought should not be a seriously difficult evidential burden. Given the U.S. courts’ willingness to impose only the most nominal restrictions, the way to do this, of course, would be the way Brazil accomplished it – through legislation.

5 Ways Technology Boosts Crime-Fighting

POST WRITTEN BY: Daphne Holmes*

Technology helps law enforcement agencies and justice personnel stay one step ahead of criminals, furnishing new ways to detect and prevent crimes, as well as helping prosecutors convict offenders. And since emerging technology is available on both sides of justice, the cat-and-mouse game between perpetrators and police is never-ending, requiring continual adjustments from law enforcement agencies.

The good news for public safety is that crime rates have generally decreased over the past two decades, due in part to advancements in crime detection and deterrent technology. Since effective policing leans heavily on the rapid sharing of sensitive crime-related data; the recent explosion in information technology is a positive development for law enforcement agencies. Identification technology, social media, and mobile capabilities also enhance public safety, enabling justice staff to do their business more efficiently and respond to unfolding investigations in real-time.

While technology poses challenges for law enforcement agencies, which continually strive to keep up with technology-based criminal enterprises; it does more good than harm in the fight against crime. Tech advancements in law enforcement include the following capabilities, which illustrate how quickly things change alongside technology.

Sharing Information
Law enforcement agencies are spread throughout a national criminal justice system that involves, regional, state, and local authorities, each administering their policing efforts independently. Too often in the past, lack of access to timely information prevented various agencies from coordinating their efforts adequately. Advances in the way agencies share information and use criminal identification systems have led to tighter connections between independent law enforcement organizations and universal enforcement standards across jurisdictions. Sharing information about offenders also has a positive preventative impact, helping keep guns out of the hand of dangerous criminals and barring offenders from certain types of employment.

Security and Surveillance Upgrades
Property crimes continue to decrease statistically, so security and video surveillance upgrades have improved public safety dramatically. Camera technology, for example, produces modern models with higher image quality than past versions, and the size of high-quality cameras has also diminished, allowing them to be concealed for covert surveillance. Face-recognition technology is particularly rewarding, enabling law enforcement officials to literally pick faces from crowds.  In fact, the technology is so accurate as to create privacy-rights controversies among those who feel it is too intrusive.

Social Media
Though it is a social trend as much as it is a technological breakthrough, social media use nonetheless furnishes law enforcement advantages for agencies that use the technology effectively. For example, criminals leave trails using social media platforms, so justice agencies turn to Facebook, Twitter and other channels for vital clues and insight into criminal behavior. The technology also enables officers to distribute information directly to concerned citizens, informing them of unfolding crimes and dangerous developments.

Social media links law enforcement directly to the public at large, so it is a great tool for spreading descriptions, videos and other information about criminals. Communicating in real-time closes the crucial gap between the point at which crimes occur and when investigations begin, enabling citizens to respond with timely information.

Crime Mapping Technology
Modern computing power speeds up data analysis and enables law enforcement to track crime trends geographically. What was once accomplished through countless man-hours pouring over data is now a matter of a few mouse clicks. Crime mapping enables agencies to zero-in on problem areas, stepping-up enforcement efforts and assisting in bringing in fugitives. Like highly sophisticated “pin-maps” highlighting crime location, mapping and geographic profiling give enforcement officers clear snapshots of crime trends.

Mobile Technology
Mobile technology furnishes an electronic trail of texts, emails, calls and GPS location information that law enforcement uses to solve cases. Smartphones are so widespread the contact information and other data they contain give officers a starting point for their investigations, which often unfold in arrests directly related to information gleaned from mobile devices and usage. Using advanced digital forensics technology, investigators find links between suspects and their crimes, which might go unnoticed without mobile connections. In addition to investigative benefits, mobile technology speeds communication between officers, agencies and citizens.

Technology will never replace solid investigative work, but modern advances assist law enforcement efforts to stay ahead of criminals. Mobile technology, social media, and rapid access to information contribute to better enforcement and prevention. And crime-mapping and video surveillance breakthroughs also increase public safety, enabling justice agencies to direct resources to where they are needed most.

*Daphne Holmes is a writer from ArrestRecords.com. She can be reached at daphneholmes9@gmail.com.

Opinions expressed in this post are those of the author and do not reflect the position of the Pace Criminal Justice Center or its Board of Advisors.  

DOJ Adopts New Policy Requiring Electronic Recording of Statements

The Justice Department has announced a new policy that will require federal law enforcement agencies to electronically record interviews with suspects.  According to Attorney General Eric H. Holder Jr.,

Creating an electronic record will ensure that we have an objective account of key investigations and interactions with people who are held in federal custody. It will allow us to document that detained individuals are afforded their constitutionally protected rights.

The new policy will require federal law enforcement agencies to record interactions with a detained suspect during the time between the suspect’s arrest and initial appearance before a judge. Notably, the new policy also suggests that officials should consider using electronic recording devices during other investigative situations, including witness interviews.

This is a stark change from the Department’s prior policy, which expressively prohibited the use of recording equipment by law enforcement agencies when conducting interviews with suspects. The Justice Department was previously concerned that the use of recording devices would undermine investigative techniques of federal agencies, and would discourage suspects from talking. The Department also once expressed that jurors may frown upon FBI interviewing techniques, and have “unfavorable impressions of agents” had they heard verbatim accounts of such interrogations.

Mr. Holder discounted these concerns, explaining that federal officials should be more committed to a process that exemplifies evenhanded enforcement of the law, and the new policy would “provide verifiable evidence that our words are matched by our deeds.” He noted that it is of great importance for federal agencies to ensure that the statements of suspects are accurately recorded, and that suspects are afforded their constitutional rights during interrogations with federal agents.

National Association of Criminal Defense Lawyers President Jerry J. Cox was pleased to hear about the Justice Department’s policy change, noting that the use of electronic recording during interviews

protects the accused against police misconduct, protects law enforcement against false allegations, and protects public safety by ensuring a verbatim record of the interrogation process and any statements.

Mr. Holder has already begun the implementation of the new policy, and has instructed United States attorneys and agency field offices to begin training sessions. As of July, the new policy will apply to the FBI, DEA, ATF and U.S. Marshals Service.

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