Can the police legally do this while undercover?

I can't help with the actual answer, so sorry for that. Is it worth contacting the police where you live/where the story is set and asking if they'd carry out a sting operation like this or, if not, how they might do it? Just an idea.

If the villains are already linked to the evidence, that would be better accepted in court.

I would have the undercover guy get more info / Intel passively then push/incite them into an act via another criminal act. The cops might arrest them on the face of them turning up after the blackmail, but it may not be admissible since they were incited into it by the cop. And if they were clever all they would have to say is that they aren't the bad guys, someone else hired them to do it!

The police can't commit a crime, other than lying. In your scenario, the only crime is the blackmail. Paying or not paying is not against the law.

What you're talking about is entrapment.

"In criminal law, entrapment is a practice whereby a law enforcement agent induces a person to commit a criminal offense that the person would have otherwise been unlikely to commit. It is a conduct that is generally discouraged and thus, in many jurisdictions, is a possible defense against criminal liability."

It's a gray area. Because the person might not have committed the crime had they not been faced with certain circumstances, they may avoid criminal charges when entrapped by law enforcement. You may or may not be aware of a TV show some years ago called To Catch a Predator, in which sickos from chat rooms and the like were lured by a TV crew into a "sexual encounter," only to be arrested by police. It was later revealed none of those arrested were convicted because it was entrapment.

Entrapment isn't necessarily illegal, but it provides a loophole for offenders. That's why, when the ATF goes after illegal gun sales, they pose as buyers or sellers to people who have already expressed an interest. The person has already showed intent to commit a crime, and the sale is arranged only to lure the person into a position where they can be captured.

If the police are aware (or suspect) the criminals have stolen evidence in their possession, they would likely present their case before a judge in order to obtain a warrant. In an undercover situation, the UC would likely attempt to gain the trust of a criminal "in the know," and coax the information out of him. Either that, or the UC would go looking for the evidence himself. He would not be able to present the opportunity for a crime, but he would be able to respond to a stated intent to commit a crime.

You could have the UC present false information, stating he caught wind of the police being onto them somehow, and that would then send them into a panic mode. Not knowing the particulars of the story, that may not work.

Stings, lying to criminals, undercover operations, etc. are legal tactics within the realm of criminal investigation strategies. However, such tactics must fall short of entrapment, as defined by pertinent/applicable statutes, case law, agency regulations/policies, etc. (always check the legal constraints of the jurisdiction in question--it lends credibility to your tale). Most agencies have written policies and guidelines carefully crafted within the parameters of pertinent/applicable statues, case law, etc. for the planning, operation, and disposition of such tactics. In short, the deployed tactic can provide the (apparent or actual) opportunity for a subject to commit a crime, but may not induce the subject to do so.

Entrapment is one issue. Even bigger issue is whether this is an illegal search. Understand that for state and city cops, you're under both the Federal and state Constitutions. In New Hampshire, you have better rights on this issue under the state Constitution.

I think this is probably going to be an illegal search. Police would argue "consent" but I have my doubts the courts would buy it. Evidence would probably not be admissible at trial. Here's something simple you can look at on this type of issue -- https://www.fletc.gov/sites/default...endment/ConsenttoEnterorSearchbyDeception.pdf

Jim Clark-Dawe

Entrapment is a gray area, and it's often contested in court. Whether or not something consists of entrapment can be ruled on quite differently depending on who the particular judge is and how he or she interprets the law.

The basic principle is always that it's allowable to give subject the opportunity to commit a crime, but not allowable to set up a scenario where the subject would commit a crime that they otherwise would not have done.

If you have a situation where someone has been preying on the homeless, robbing them as they lay intoxicated or sleeping or both, it is not entrapment to have an undercover officer lie down and pretend to be asleep, affording someone the opportunity to rob them.

However, if the undercover officer positions himself with his wallet sticking out of his pocket and money clearly visible to any passerby, that may well be entrapment and almost assuredly is -- it temps someone who ordinarily would not have attempted to rob anyone from taking what they see as easy money.

It's true than undercover officers cannot commit felonies in the course of their work. This makes it difficult in low level drug investigations, because savvy dealers will sometimes insist that the undercover officer sell them some narcotics to prove that The officer is not a cop.

The cops have gotten around this in some jurisdictions where it has been ruled allowable to trade up – they can't sell narcotics to someone, but they can trade lesser for greater – in other words the cop could "trade" marijuana (from the evidence room) for an equivalent amount of cocaine, giving the dealer a good deal of course.

In the situation you describe, the cops would certainly run it past the DAs office and get a legal opinion as to whether it was allowable. My feeling is that it would be an acceptable tactic, because they are not using pressure to get the subject to commit a crime -- they are simply trying to panic him into making a mistake.

Clearly if they were attempting to blackmail him in an effort to get him to sell them drugs, that would be not only entrapment but quite likely a crime in itself.

ironpony said:

Okay thanks, but I researched entrapment in law and there is a difference in my scenario though. Entrapment is when the police get a criminal to commit a crime, he would have not committed otherwise, and then arresting him on that crime.

In my scenario, the police are blackmailing the criminals, with the intention if sending them into a panic, and then having them go to uncover evidence, of a murder, and be caught with that evidence, and the murder was already committed in the past. The crooks have already committed the murder, and would be re-incriminating themselves on it, and be arrested for the re-incrimination of a past crime.

So this is different from entrapment, because the crime they would be caught incriminating themselves, on and then arrested, has already been committed, as oppose to the police tricking someone into committing a NEW crime.

So I read that that is different and does not count as entrapment, if the murder they are incriminating themselves, on, has already been committed. Is that true?

Click to expand...

Nope. It is entrapment in my opinion.

ironpony said:

Okay thanks, but I researched entrapment in law and there is a difference in my scenario though. Entrapment is when the police get a criminal to commit a crime, he would have not committed otherwise, and then arresting him on that crime.

In my scenario, the police are blackmailing the criminals, with the intention if sending them into a panic, and then having them go to uncover evidence, of a murder, and be caught with that evidence, and the murder was already committed in the past. The crooks have already committed the murder, and would be re-incriminating themselves on it, and be arrested for the re-incrimination of a past crime.

So this is different from entrapment, because the crime they would be caught incriminating themselves, on and then arrested, has already been committed, as oppose to the police tricking someone into committing a NEW crime.

So I read that that is different and does not count as entrapment, if the murder they are incriminating themselves, on, has already been committed. Is that true?

Click to expand...

My apologies. I read your first post incorrectly. It's not entrapment. It's not illegal to pay a blackmailer cash. It's illegal to blackmail someone for cash. Consequently, what you've described is a sting operation. Even if the criminals paid the ransom, they've done nothing illegal there as victims of the blackmail. The destruction of evidence of a previous crime they've committed, however, only adds to their criminal activity.

You stab a guy. You bury the knife. Someone calls you up, says they have a photo of you doing the stabby thing, and unless you pay a thousand bucks, the photo of the stabby thing will make it to the police. Even if you paid the thousand bucks, you haven't done anything illegal outside of the murder. If you then go to dig up the knife to get rid of it and are arrested for the murder based on that, then you'd be charged with the murder and possibly other things, but nothing to do with blackmail.

That's pretty much how stings work. Good call.

My question is what happens to the legal situation if the criminals put their head together and decide that it would be better for them to buy the blackmailer's silence. I'm not well versed in criminal law, but this seems like a slippery slope because when the UC officer informs the criminals of the blackmail it's a lie, but once they pay up, whether or not the officer had evidence it's essentially the same thing as blackmail.

The police can definitely lie that they possess evidence they don't, but I have a gut feeling that there are too many variables in a pretend blackmail operation for them to know that it won't turn into an actual crime.

However, as far as I can tell, it does sound like your situation is different from entrapment since the criminals are not being pressured to commit a new crime.

L. OBrien said:

My question is what happens to the legal situation if the criminals put their head together and decide that it would be better for them to buy the blackmailer's silence. I'm not well versed in criminal law, but this seems like a slippery slope because when the UC officer informs the criminals of the blackmail it's a lie, but once they pay up, whether or not the officer had evidence it's essentially the same thing as blackmail.

The police can definitely lie that they possess evidence they don't, but I have a gut feeling that there are too many variables in a pretend blackmail operation for them to know that it won't turn into an actual crime.

However, as far as I can tell, it does sound like your situation is different from entrapment since the criminals are not being pressured to commit a new crime.

Click to expand...

The police would likely do all but be in a position to take the money. The blackmail statement is offered, the criminals come up with the cash and go to the drop point, but the blackmailer has disappeared into the ether. No harm, no foul, so to speak. Of course, the police would observe the criminals covertly, from the arranged "payment point" to wherever they go. If I'm being blackmailed over a murder I committed and I can't pay the cash because I can't find the blackmailer, my next concern is whether or not they decided to get the evidence I know about. I'd be paranoid. I'd probably do exactly what the police want me to do: go try to destroy the evidence.

Pennguin said:

You stab a guy. You bury the knife. Someone calls you up, says they have a photo of you doing the stabby thing, and unless you pay a thousand bucks, the photo of the stabby thing will make it to the police. Even if you paid the thousand bucks, you haven't done anything illegal outside of the murder. If you then go to dig up the knife to get rid of it and are arrested for the murder based on that, then you'd be charged with the murder and possibly other things, but nothing to do with blackmail.

Click to expand...

This would result in a search in violation of the defendant's Fourth Amendment rights if done by the police. The knife would not be admitted at trial. The police have tricked the defendant into uncovering the gun. Where Constitutional rights are concerned, tricking people is very, very difficult to do and not end up losing the evidence.

Jim Clark-Dawe

jclarkdawe said:

This would result in a search in violation of the defendant's Fourth Amendment rights if done by the police. The knife would not be admitted at trial. The police have tricked the defendant into uncovering the gun. Where Constitutional rights are concerned, tricking people is very, very difficult to do and not end up losing the evidence.

Jim Clark-Dawe

Click to expand...

Interesting. I wasn't aware that is considered illegal search, since it's not so much a search as it is the person being caught in the act of digging up the evidence. Thanks for the info. That's really odd, but interesting.

One of the favorite cases is the cops who hooked a couple of wires between a defendant and a copier. The wires weren't hooked up to anything, but the defendant was told the copier was a lie detector. (We won't discuss the intelligence of many criminals.) Every time the defendant gave an answer the cops thought was a lie, one of them would hit the print button, without the defendant seeing it, and out would pop a piece of paper with "LIAR!" printed on it.

There's lines here as Ironmikezero describes. It's a balance between coming up with tactics that deceive and tactics that trick. We have Constitutional protections as to how far the cops can go.

To give a simple example. The police have reason to believe that on your ten acre property that you buried a body. The police have sufficient evidence to get a search warrant. The police can strip off the top ten feet of your property, or even more, searching for that body. They can announce in the papers that they know you have a body on the property and know where it is (they don't) and are going to be out tomorrow to dig it up. If you decide to go out that night and dig it up, they've got you.

However, if a cop goes up to you at a bar, doesn't say he's a cop, and says he's got a picture of you burying the body, and for $10k he'll destroy the picture, and you decide to dig it the body rather than pay, that would be self-incrimination and the body would not be able to be used as evidence. (The worst of this is that it actually makes sense to me.)

Obviously the cops need some scope in trying to suppress crime. For example, if you're in a marked cruiser, it's unlikely a hooker or drug dealer is going to go up to you to make a deal. But a cop can't go around asking people if they want him to kill their boss.

Jim Clark-Dawe

jclarkdawe said:

One of the favorite cases is the cops who hooked a couple of wires between a defendant and a copier. The wires weren't hooked up to anything, but the defendant was told the copier was a lie detector. (We won't discuss the intelligence of many criminals.) Every time the defendant gave an answer the cops thought was a lie, one of them would hit the print button, without the defendant seeing it, and out would pop a piece of paper with "LIAR!" printed on it.

Click to expand...

As seen on Homicide: Life On the Street and The Wire. Both based on David Simon's book, of course, where I think it popped up as well. But, IIRC, that's not legally problematic - it's obtaining a confession through subterfuge, which is perfectly OK. A cop can tell a suspect "you're buddy's over there saying you did it all" when he actually isn't or say "you're DNA's all over the crime scene" even if it isn't. I think the "lie detector" would fall under the same heading.

I'd be interested in a case cite that would support the conclusion that the phone call to the murder that leads him to uncover evidence would violate the Fourth Amendment. Sounds like the kind of thing that would produce a lot of outrage during one of our case status meetings, but once I'd go off and research it we'd be disappointed (that happens with depressing regularity).

And on entrapment - one thing to keep in mind is that to successfully use entrapment as a defense that defendant usually has to prove a lack of predisposition to commit the crime. Thus if the people being set up in OP's work are criminals, it's unlikely they could plead entrapment (or that the cops would worry about it).

Having the police involved in an apparent blackmail scheme, whether sanctioned or not by the relevant prosecutorial authority, is going to be staggeringly problematic for the inevitable court proceedings. I seriously doubt a pragmatically-minded prosecutor would approve any such tactic that is guaranteed to become a legal tar-baby--unless, of course you're trying to write a convoluted courtroom drama.

Let me make a suggestion; have a real blackmailer, another criminal, get into the act. Craft a character, a sinister opportunist (fence? hacker? cyber data broker?) who typically preys upon and/or offers services to other denizens of the underworld. This guy becomes aware of the murder and hears sufficient scuttlebutt to suspect the actual perpetrator. The initial blackmail attempt is a feasibility probe that bears a fruitful response, and now his interest is piqued. Since he's already known to the police, he may be under periodic surveillance, or be the subject of a court ordered wire (or could just as easily be identified via another wire on another subject--the possibilities are only limited by your imagination). That scenario gets the police involved with a clear and legal explanation.

Ironpony -- You're putting several different legal issues together and not understanding that each legal issue has its own legal history.

The police are allowed on nearly all public property, just like the rest of us. The police aren't allowed on private property, although there are lots of exceptions, just like the rest of us. That's the issue you're addressing and is the Fourth Amendment.

The Fifth Amendment gives us the right to not incriminate ourselves. This is the issue I'm presenting. As a judge wrote in an uncited decision on a case of mine, the police can mislead but can't lie. I don't quite understand the difference, but that's actually probably sort of close to the dividing line. Raelwv comments that a police officer can tell a suspect that his buddy confessed. But in New Hampshire, a police officer can't show a suspect the buddy's "written" confession, unless the buddy actually wrote it. By the way, in New Hampshire, a police officer who is caught doing questionable stuff goes on a list, and defense counsel, as part of the discovery they receive, will know about an officer who messes around on this stuff.

Even if the prosecutor wins the legal battle, it's going to be long, messy, and unpleasant.

There used to be a state trooper in New Hampshire, that during routine motor vehicle stops, would check your license for cocaine if the license looked frayed around the edges. His argument was that frayed licenses are a sign of a drug user. If you have your license for awhile, and it's near money, it will probably show some traces of cocaine. Lots of positives, and he'd charge the guy with a felony drug possession. Then at the probable cause hearing, he'd offer a misdemeanor drug, no jail, no supervised probation, and the defendant would grab the deal. He made this work for several years, until he hit someone who had no drug history, and the guy fought it. Hard. Ended up with the state trooper fired. He had, as every defense attorney knew, no probable cause to search the person's license by chemically testing it. However, he offered really good deals.

Are most books and movies accurate on this stuff? No.

But Ironmikezero was a federal investigator for many years, I believe Raelwv works as a prosecutor in West Virginia, and I represented a whole raft of criminal defendants. You've got something that is on the line. It might work, it might not. But anyone in the know is going to know that this is the type of thing that ends up in appeals courts. Or a really good plea deal.

However, it's up to you how you write your book. I like NCIS, a show that would end up in most cases being thrown out. For example, they're able to investigate on occasion federal income tax filings. Yeah, right. It's next to impossible. We're seeing the problems of tapping into phones in the real world that never seem to crop up on NCIS.

Jim Clark-Dawe

I think the very fact that people with some expertise in the area have some disagreement on whether this would be legal makes it perfectly acceptable for a work of fiction.

It also depends on exactly what type of book one is writing. My very first book, a thriller about a police officer is meticulous in every detail about both police procedures and how cops would actually act in a given situation. It was written pre Internet, if you can imagine such a thing, which gave it a huge edge in terms of credibility – at that time only people in law enforcement or close to it really could write about it with accuracy.

But the latest that I'm just finishing up is a lot looser. It's aimed at a different audience, and although there's nothing in it that is actually impossible – nothing that is factually incorrect, i'm taking a lot of liberties. I really think that unless you're writing a scenario that is absolutely impossible, involving stuff no cop would ever do, you'll be all right.

You could just look up the details of ABSCAM, then change time, place, and names.

It strikes me that if the police know enough about the evidence that they can realistically pretend to blackmail the bad guys, they know enough about it to get a legitimate warrant without any need to play games.