Tagged: probable cause

May Decisions from the NY Court of Appeals

Several interesting criminal procedure decisions were handed down in May by the New York Court of Appeals:

People v. Stone2017 N.Y. Slip Op. 03559, 29 N.Y.3d 166 (May 4, 2017) (Court’s PDF) – Conviction affirmed where the defendant argued his right to confrontation was violated where a detective was permitted to testify that an unavailable witness had identified the defendant. The Court held that the trial court “eliminated any prejudice to defendant by striking the offending testimony from the record and instructing the jury to disregard the statements.”

People v. Bushey29 N.Y.3d 158, 53 N.Y.S.3d 604 (May 4, 2017) (Court’s PDF) – In this case, the Court held that a police officer may run a car’s license plate number through the government database without any suspicion of wrongdoing; that this does not constitute a search, and that any information obtained as result of such inquire may form probable cause for the police officer to stop the vehicle.

People v. Smalling, 29 N.Y.3d 981, 75 N.E.3d 665, 53 N.Y.S.3d 248 (May 2, 2017) (Court’s PDF) – In this case, the Court reversed a conviction and ordered a new trial where the trial court had agreed not to give a jury instruction on constructive possession but then ultimately did give such an instruction.

Prof. Gershman on “Parking While Black”

In his most recent Huffington Post piece titled Parking While BlackProf. Bennett L. Gershman reviews a recent Circuit Court decision, United States v. Johnson, which is currently pending re-hearing at the 7th Circuit after it initially upheld the lower court’s decision. Prof. Gershman raises a fair question: “[Are the courts] about to decide if police have another legal method for harassing black citizens[?]”

In the middle of a Wisconsin winter with streets covered in snow, local Milwaukee police decided to harass a parked car with four black passengers inside after one just returned from a liquor store, citing Milwaukee parking ordinance (alleging the car was parked too close to a crosswalk), pulling all passengers out of the car, handcuffing them, searching the entire car and finding a gun as a result.

While the court’s majority sided with the government and held that the police did not violate the defendant’s Fourth Amendment rights and reasoned that police had probable cause (based on the parking ordinance) and as such “could forcibly detain the car and search the occupants,” Judge David Hamilton delivered a worth-to-read dissent, calling the police conduct “terrifying,” “outrageous,” and “extraordinary.” As Prof. Gershman points out, Judge Hamilton carried on by saying:

Imagine that the police tried that approach in Milwaukee’s affluent east side. Citizens would be up in arms, and rightly so.” … “No police officer could expect to keep his job if he treated a standing car as worthy of a [forcible] stop.”

Prof. Gershman concludes that:

The panel decision was vacated last month, and reargument has been ordered. It remains to be seen whether the entire circuit court will see it as Hamilton did or whether “parking while black” will sadly become as common a phrase as “driving while black.”

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.