As a criminal defense attorney, I have represented countless people charged with crimes ranging from very minor offenses to violent felonies. In almost all cases, I will have to answer questions put to me by my clients about the way they were treated by the police. More often than not, my answers surprise my clients who typically have some serious misconceptions about what the police are and are not allowed to do. Not only have I devoted my professional career to understanding the permissible contours of a police-citizen encounter, I also had the privilege of teaching a class on this material at Tufts University , a prestigious school outside of Boston, Massachusetts. This article is the first in a series of articles discussing what police are and are not allowed to do.
DOES AND UNDERCOVER OFFICER HAVE TO TELL ME IF THEY ARE A COP WHEN ASKED?
Many people have heard this myth and it is simply untrue. Were it true, undercover police work would be impossible. This myth likely stems from a misunderstanding of the legal doctrine of “entrapment.” However, “entrapment” does NOT mean simply that you were tricked into getting caught. Entrapment means that the police persuaded you to commit a crime you had no intention of committing at the outset. So, in the case of a drug dealer who is busted after selling cocaine to an undercover police officer, if prior to the transaction the drug dealer asked the prospective buyer “you’re not a cop, are you?” and the buyer (an undercover state trooper)says “no way, man” prior to the drugs exchanging hands, the dealer was not entrapped into committing a crime merely because of the officer’s misrepresentation. The dealer intended to sell the drugs all along. He just didn’t intend to get caught. There is no Constitutional right not to get caught committing a crime. What the police did was only to provide the dealer with an “opportunity” to sell drugs, not force or coerce the dealer into doing so.
There are situations where entrapment would constitute a valid defense, but they are few and far between. Typically, the undercover police officer scenario is exactly as I outlined above-an officer poses as a buyer and purchases contraband from a drug dealer. This may even happen several times before the dealer is ultimately arrested and charged with sales, called Possession with the Intent to Deliver under Pennsylvania Law.
It is true that an “entrapment” defense focuses on the actions of investigation police officers and the conduct of investigators can cross the line if they encourage somebody to commit a crime they would not have otherwise committed. However, under Pennsylvania law, a police officer or a person acting in cooperation with police perpetrates an entrapment only if, for the purpose of obtaining evidence of the commission of an offense, he or she induces or encourages another person to engage in conduct constituting such offense by either making knowingly false representations designed to induce the belief that such conduct is not prohibited, 18 Pa.C.S. § 313(a)(1), or; by employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it. 18 Pa.C.S. § 313(a)(2). According to the Pennsylvania Superior Court in Commonwealth v. Jones, 363 A.2d. 1281 (Pa. Super. 1976), entrapment allows an otherwise guilty defendant to go unpunished, because the legislature has determined that seriously objectionable police conduct may not be tolerated.
Two Pennsylvania cases illustrate this concept very well:
In Commonwealth v. Phillips, 654 A.2d. 591 (Pa. Super. 1995), the trial court dismissed charges relating to theft and receiving stolen property after it was determined that the defendant was entrapped as a matter of law where: (1) the defendant bought a VCR, in its original box with a Sears label, from undercover law enforcement officers in a reverse sting operation; (2) shortly after the transaction, the defendant called Sears and asked if any VCRs had been reported stolen or missing; (3) a Sears employee, who had assisted the undercover officers by providing the VCR, stated that none were missing; and (4) the defendant made additional calls to Sears and was given similar information. The appeals court concluded that the conduct of the police and the Sears employee(s) was clearly designed to induce the defendant to believe that his purchase of the VCR was lawful and to promote future purchases by the defendant. Accordingly, the Superior Court found that law enforcement had employed methods of persuasion and inducement to commit theft crimes by making false representations designed to induce the belief that the purchase of the VCRs was not prohibited.
In Commonwealth v. Lucci, 662 A.2d. 1 (Pa. Super 1995) a narcotics defendant was entrapped as a matter of law when, shortly after his release from a drug treatment program in which he was a voluntary participant, a government informant who had formerly been a very close personal friend approached the defendant and, appealing to bonds of friendship and to sympathy engendered by the alleged impending death of the informant’s mother, repeatedly asked the defendant to purchase cocaine on the informant’s behalf in return for a “free hit”. The Lucci court determined that the government’s conduct, in preying on the defendant’s friendship and attempting to lure him back to drug use following his release from a drug treatment program, was not a proper use of governmental power and that the police action in this case was “exactly the kind of situation that the defense of entrapment was intended to address.” Lucci, 662 A.2d. at 7 (Pa. Super. 1995).
So, in summary, an undercover police officer may lie about their identity. We expect them to. This only becomes an issue where the lies told by the police officer falsely represent to a defendant that their conduct is not prohibited or where they induce an individual to commit a crime that they would not have otherwise committed.
If you or a loved one have been charged with a crime and you think you may have a viable entrapment defense, please contact experienced defense attorney Julian Allatt at the law firm of Rehmeyer & Allatt in State College, Pennsylvania for a free consultation.