Tagged: reasonable suspicion

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.

Second Circuit Releases Decision Raising Interesting Terry Stop Issue

BY: David Restrepo

The Second Circuit recently decided United States v. Freeman, which was on appeal from a conviction for gun possession.  On appeal, the defendant argued that the police lacked reasonable suspicion to conduct the Terry stop that produced a gun in the defendant’s possession.  The Second Circuit reversed the defendant’s conviction, mainly on the ground that the police lacked reasonable suspicion to stop and frisk so that the evidence should have been suppressed.

The interesting part about the case is the court’s in-depth discussion on what constitutes reasonable suspicion.  Initially, police responded to a pair of anonymous 911 calls from the same caller.  The caller offered a description and location of the defendant, claiming that the defendant had a gun on his person.  What makes the court’s decision newsworthy is its analysis of the phone calls and their sufficiency as a basis for reasonable suspicion given that, although they were anonymous, the 911 center recorded the phone number and the caller called twice.

The Second Circuit held that the phone calls were an insufficient basis for reasonable suspicion because the information in the calls could not be corroborated.  However, the majority and dissent both discussed an issue raised by Justice Kennedy in his concurrence in Florida v. J.L., 529 U.S. 266 (2000) – whether 911 calls are really anonymous given current police technology.  In J.L., the majority held that a mere description in 911 call is not sufficient to establish reasonable suspicion.  In his dissent in Freeman, however,  Judge Wesley disagreed, suggesting that the Supreme Court should offer “further guidance in this troubling and exceptionally important area of Fourth Amendment jurisprudence.”  Whether or not the holding in Freeman is correct, Judge Wesley poses an interesting issue.  Given the speed of advancement in technology available to law enforcement, it is an issue that deserves further clarification by the Supreme Court.

Related Readings

David Restrepo, United States v. Freeman – Second Circuit, ABA Media Alerts (Nov. 7, 2013).
United States v. Freeman, No. 12-2233-cr (2d Cir. Nov. 7, 2013).

Stop and Frisk the Statistics

BY: Annmarie Stepancic

Between 2010 and 2012, the NYPD reported 1,624,419 stops in New York City. Of those stops, slightly over 6%, or 101,688 stops, resulted in an arrest. Another 6% resulted in a summons. So – what do these statistics mean? Well, on the one hand, these statistics seem to suggest an effort to reduce the crime rate, particularly in high crime areas. This is the interpretation we hear and read about in the news as we go about our day-to-day routines. On the other hand, these statistics suggest that the stop and frisk policy is ineffective. According to the NYPD data, stops do not yield any significant results approximately 88% of the time. We rarely, if ever, study this interpretation of the statistics. I would like to suggest that it is this interpretation – the 88% view – on which we as a society should focus our attention.

A few disclosures before I continue. I am in no way suggesting that the NYPD is wrong 88% of the time or that the entire stop and frisk policy should be eradicated. It is important to understand that not every stop and frisk will result in an arrest or summons, and I am not trying to suggest that it should. Moreover, in a post-9/11 world, it is imperative for our police officers – the men and women who vow to serve and protect us each day – to have the ability to stop and frisk any individual the officers reasonably suspect of criminal activity. However, I think and hope we can do better than futile stops 88% of the time.

I think the biggest reason stops are unsuccessful 88% of the time is because there is no clear standard for conducting a stop and frisk. In Terry v. Ohio, the Supreme Court established reasonable suspicion as the standard for a stop and frisk. Terry v. Ohio, 392 U.S. 1 (1968). According to the reasonable suspicion standard, a police officer may stop an individual that the police officer reasonably suspects has committed, is committing, or is about to commit a crime. After an individual is stopped, the police officer may frisk the individual for police safety. But what exactly constitutes reasonable suspicion? The answer: your guess is as good as mine.

While recognizing the right against an unreasonable stop and frisk, the Warren Court failed to define the reasonable suspicion required, and subsequent congresses and legislatures have not done the job.  To date, scholars have helped by defining reasonable suspicion to include,  at a minimum, more than an individual’s hunch and to require specific facts that led the officer to reasonably believe that the individual has engaged will engage, or is engaging in criminal activity. These definitions, while helpful, still fall short in defining what exactly constitutes reasonable suspicion either for the courts or the police officer on the street. I understand that we live in a world of uncertainty, but that does not mean that we are to conduct our policing policies with the same uncertainty. The stakes – constitutional rights – are simply too high.

The constitutional rights of hundreds of thousands of Americans are violated on an unprecedented scale because of illegal stops and frisks. A report published by the Center for Constitutional Rights in December 2012 found that

based on the information recorded on NYPD stop-and-frisk forms by police officers themselves, more than 95,000 stops lacked reasonable articulable suspicion and therefore violated the Fourth Amendment’s prohibition on unreasonable searches and seizures.

Unconstitutional stops and frisks not only violate the constitutional rights of our fellow Americans, but also undercut the legitimacy of police officers. Illegal stops and frisks strain and, in many instances, destroy the very police-community relationships that could assist in the capture of the bad guys.

Related Readings:

Report Shows Stop and Frisk rights Violations Continue (By Center for Constitutional Rights, Dec. 2012).
Terry v. Ohio, 392 U.S. 1 (1968).
NYPD’s Stop and Frisk Practices: Unfair and Unjust (By Center for Constitutional Rights, 2012).
2011 NYPD Stop and Frisk Statistics (By Center for Constitutional Rights, 2011).
NYPD’s Stop, Question and Frisk Data (By NYPD, includes data for years 2003-2011).
Second Supplemental Report of Jeffrey Fagan, Ph.D.David Floyd v. City of New York, ___ F. Supp. 2d ___ (S.D.N.Y. Aug. 17, 2012) (No.: 08 Civ. 01034 (SAS)).