Tag Archive for: entrapment

What and Who are Confidential Informants, and What Do They Do?

Confidential Informant – a person who provides information to police about criminal activity.

The FBI, of course, conducts undercover operations, as needed, and they do so when such operation appears to be an effective means of obtaining evidence. The same is true for local and state agencies.

However, the FBI, as with other federal agencies, are held to tighter control, rules, and regulations as related to UC assignments. Small and basic details, such as the use of a confidential informant requires adhering to the strict guidelines as required by the Attorney General’s Guidelines on Use of Informants and Confidential Sources. And, believe me, this document is detailed and lengthy.

Even their definition of a confidential informant is a bit wordy.

“ConfidentiaI lnformant” or “CI”‘ – any individual who provides useful and credible information  regarding felonious criminal activities, and from whom the JLEA (Justice Law Enforcement Agency) expects or intends to obtain additional useful and credible information regarding such activities in the future.”

Once a person is selected and approved (more on this below), agents may not reveal the CI’s identity at any time, unless they’re obligated to do so by law or Court order. The rule holds true even when the agent involved in the undercover operation leaves the department for whatever reason—transfer, retirement, etc. Keep in mind that law enforcement cannot guarantee that their name will not be divulged. They’ll do all they can to protect their confidentiality, but if ordered by the courts to reveal their names, they must abide.

According to the FBI, before their CI may be put to use, several factors must be examined, such as the informant’s “age, alien status, whether the person is a public official, law enforcement officer, union official, employee of a financial institution or school, member of the military services, are presentative or affiliate of the media, or a party to, or in a position to be a party to privileged communications, a member of the clergy, a physician, or a lawyer.”

In addition, the JLEA must examine “the extent to which the person would make use of his or her affiliations with legitimate organizations in order to provide information or assistance to the JLEA, and the ability of the JLEA to ensure that the person’s information or assistance is limited to criminal matters.”

Other factors of consideration include, “the extent to which the person’s information or assistance would be relevant to a present or potential investigation or prosecution and the importance of such investigation or prosecution.”

Is Becoming a CI a “Get Out of Jail Free” card?

 

And, “the nature of any relationship between the CI and the subject or target of an existing or potential investigation or prosecution, including but not limited to a current or former spousal relationship or other family tie, and any current or former employment or financial relationship; the person’s motivation in providing information or assistance, including any consideration sought from the government for this assistance; the risk that the person might adversely affect a present or potential investigation or prosecution; the extent to which the person’s information or assistance can be corroborated; the person’s reliability and truthfulness; and the person’s prior record as a witness in any proceeding.”

Furthermore, it must be first determined as to “whether or not the person has a criminal history, is reasonably believed to be the subject or target of a pending criminal investigation, is under arrest, or has been charged in a pending prosecution; whether the person is reasonably believed to pose a danger to the public or other criminal threat, or is reasonably believed to pose a risk of flight; whether the person is a substance abuser or has a history of substance abuse; whether the person is a relative of an employee of any law enforcement agency” … and on and on and on it goes.

Other factors to consider when using CIs in your tales

When making the decision to use a confidential informant, officers must consider the risk of physical harm that could occur to the person or his or her immediate family and/or friends. Nothing is worth the risk of harm to a private citizen.

And …

  • What’s the CIs motive? Perhaps revenge for an act committed against them? If so, is it likely the CI may fabricate or plant evidence?
  • Is the CI a truthful person? Yes, even crooks tell the truth at times. Simply because they sell drugs doesn’t meant they’ll lie about it when asked. Hey, it happens.
  • Serving as a CI does not grant them the authority to engage in illegal activity.
  • They are not considered as employees of the government or local agency.

Finally, a word about entrapment.

Entrapment occurs when a law enforcement officer implants an idea into the mind of a person who would typically not otherwise commit the offense, and then encourage the commission of that offense in order to prosecute the individual.

By the way, it’s Probable Cause, NOT Probably Cause. Yes, I see and hear this (probably cause) quite often.

*Coming Monday May 24, 2021 – “Informants: Who’s in Your Fireplace?”

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A Drug Dealer, Undercover Ops, Entrapment, and the Future of the Writers’ Police Academy

Last week my wife Denene and I traveled to North Carolina to be with her mother during yet another surgery (you may recall that she and our daughter were each diagnosed, just weeks apart, with serious cancer). Her surgery went well and she’s now back at home.

On our way back to our own home we took a detour to visit with my brother and his wife for a few minutes. The side trip to their house took us deep in the countryside where it’s not unusual to see a black bear crossing the road, or a dozen or so deer grazing on my brother’s property.

To return to a major highway after leaving my brother’s place, we first had to trek along several narrow treelined backroads, where thick leafy canopies overhang, allowing only bits of sunlight to leak through between branches, speckling the asphalt with splashes and dots of yellow.  It was like I image it would be to travel through the twisting and turning lens of an old kaleidoscope.

Denene and I chatted along the drive with our conversation turning toward the possibility of hosting a 2020 Writers’ Police Academy. We brainstormed ideas as to how, if we decide to host a 12th event, to top earlier years and which new classes and topics we could offer.

We discussed past events and favorite sessions and activities. We also discussed that 2020 would be a year without Linda Lovely and Howard Lewis, our two key volunteers who’ve decided to move on after many years of hard work and loyal service to the WPA. Of course Denene and I are grateful to all they’ve done for us and the event over the past several years. The four of us have been together during fun times and extremely difficult hardships.

But, as it’s been said, “The show must go on.” For now, though, the head-scratcher of the day is whether or not to return to Sirchie, NWTC’s Public Safety Academy in Green Bay, or to simply call it quits after 11 wonderfully successful years. I’d love to see your preferences in the comments below.

Okay, back to the rest of the trip back home from N.C.

We twisted and wound throughout the network country roads, passing a couple of boarded-up country stores, the kind that once sold hunks of hoop cheese and slices of bologna from long tubes, hand-dipped ice cream cones, pickled eggs and pigs feet from large glass jars, live minnows and crickets, and blocks and bags of ice.

Cotton field in Virginia

Small clapboard-sided churches and fields of soybean and cotton and corn were part of the landscape, as were modest homes and barns and tin-roofed sheds cobbled together from plywood and 2x4s.

Then, we passed a house that stirred a long forgotten memory. It was a brick rancher with a gravel driveway. The entrance to the drive was flanked by two large wooden wagon wheels, one on either side. A vivid picture crossed my mind—a Virginia State Police car parked in that very driveway. Wow, how could I have forgotten about this trooper, a man who played a part in shaping me as a police officer.

Let’s Back up a Bit

I’ve worked undercover assignments in my day, most of which involved narcotics operations. My very first one took place, and it pains me to say just how long ago it was, back in the 70s. I know, I’m one of the “old guys.”

By the way, writers, that’s a term sometimes used by younger cops when referring to active-duty officers who tend to show a bit of gray hair and “donut induced belly droop” at the waistline. Old Guy is a moniker that also refers to retired cops.

I was reminded of my “old guy” status during a past WPA when I overheard instructor Rick McMahan using me as an example to emphasis a point during one of his presentations. He said something similar to, “Lee Lofland could probably tell you about how it went back then. He’s one of the old guys.”

When Denene and I passed that brick house I mentioned above, I immediately recalled sitting in a beat-up old car while two troopers placed “bugs” in the passenger side door panel and beneath the dashboard. I didn’t wear a wire in case the dealer opted to check for one, and he did. My handler, the trooper who lived in the brick house, was briefing me about my “target,” a major drug supplier who sold only large quantities of marijuana (“pot,” back in the day). Nothing smaller than five pounds, actually.

It was my job to gain the man’s confidence and work my way into his trusted circle. The goal was to become one of his dealers. I was brought in from another area to prevent the possibly of recognition. It was a tough assignment for a couple of reasons. One – No one had been able to gain the man’s trust. Two – He was a black man who generally didn’t associate with white people, and I’m obviously white. And he didn’t, as a rule, sell to white people. Didn’t trust them. Not at all. So my assignment was an uphill climb from day one.

But, at the time was hair was quite long and my daily attire was often grungy jeans, t-shirts, and Converse tennis shoes. I definitely looked the part and I walked the walk and talked the talk.

Me completing paperwork at the time of this operation.

Long story short, I did indeed manage to work my way inside the “team” and was soon given five pound packages of “pot” to sell. I was easily successful at unloading the drug because I simply turned it over to my handler, and the Commonwealth of Virginia, through the Va. State Police, kindly forked over the cash/buy money.

To my supplier, I was a fantastic “employee.” He assumed I was selling to white folks from Richmond to Norfolk and Virginia Beach, to Raleigh and everywhere in between. He even accompanied me on a couple of sales to undercover Va. State Police troopers. We arranged these sales to prove that I was not an undercover agent.

So, the day came to make the arrest. Since I was then working other assignments I was not part of the raid team. In fact, I didn’t see the man again until we came face to face in court during his trial, and if looks could kill I’d have been butchered, burned, and fed to wild hogs and hungry lions.

When I took the stand to testify about, in great detail, the operation that brought us to the point of the arrest and subsequent criminal proceedings, his high-priced, fancy-dressed defense attorney tried his best to discredit me. But, it didn’t work. Not even close. To pat myself on the back a bit, I remained calm, cool, and sharp.

Entrapment?

The attorney tried every trick in the book, including the old standby of entrapment. But this one failed miserably. You’ve probably heard someone somewhere say that undercover (UC) police officers absolutely must identify themselves as officers at some point during the operation, otherwise the, as the myth goes, the suspect’s constitutional rights are violated. It is incorrectly believed that if a UC does not identify themselves then they have entrapped the person who committed the crime in question.

Well, hogwash. This is without any doubt whatsoever, a myth of epic proportion. It’s fake news spewed by people who do not know the law.

Yet, this highly-educated and quite successful attorney, well, he sort of went there, asking me this question during his cross examination. “Did you tell my client what you were going to do with the marijuana he gave you? 

I sat in silence for a moment to allow the prosecutor to butt in, object, or whatever,  but he elected to not do or say anything.

Therefore, my response to this dumb question was the first thing that popped into my somewhat warped mind. “No I did not. And I didn’t because I don’t believe he’d have given me large quantities of marijuana to sell if he knew I was handing it over to Va. State Police Troopers for the purpose of building a solid case against him.”

Laughter then roared from the courtroom, and even the judge chuckled before asking the defense attorney if he had any further questions for me. He replied, “No, sir. I don’t believe so.” Then he turned and took a seat.

The drug dealer was found guilty and was handed a lengthy prison sentence.

Entrapment

“Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.” ~ Jacobson v. United States, 503 U.S. 540(1992).

 

Again, I’d truly like to hear you thoughts regarding a potential 2020 Writers’ Police Academy—return to Sirchie, NWTC’s Public Safety Academy in Green Bay, or to simply call it quits.

So please do post your thoughts in the comments section below. Also, if we are to continue hosting this wonderful event we may need volunteers to help out, especially people with experience in planning large events with lots of moving parts. We also may need a few people to fill smaller roles during the event—help with raffle, check-in, reception, banquet, etc.

Working as a WPA volunteer involves lots of hard work and no pay (sounds tempting, I know). However, the experience is extremely rewarding in many ways. If you should consider becoming a WPA volunteer, please keep in mind that the Writers’ Police Academy is not a typical writers conference. There are no craft sessions, agent and/or editor panels, nor are there pitch sessions with agents and/or editors.

The WPA is a hands-on learning event whose focus is solely on teaching writers about law enforcement, forensics, and crime-solving. It’s an event that welcomes everyone, and it’s a place that’s free of politics. It’s fun. It’s exciting. And it truly is a Disneyland for writers of all genres, from beginning writers to top bestselling authors. Fans and readers, journalists, librarians, booksellers, etc. are also welcome to attend.

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Entrapment: Inducement is the Key Word

I’ve heard the word entrapment spoken to or shouted at officers, including me, at least a thousand times over the years, especially when undercover ops came to a close and the bad guys discovered the true identity of a person, an undercover police officer, they’d admitted to their inner circle. That it was the undercover agent to whom they’d spilled their deepest secrets. And it was the sneaky cop to whom they’d trusted enough to sell mounds of illegal goods such as cocaine and/or guns. Those officers who, while during the course of their assignments, concealed their identities to infiltrate criminal enterprises.

And it doesn’t stop there, with undercover operations. No, not at all. I’ve had the word tossed at me during traffic stops and during investigations of murders, burglaries, white collar crimes, and even B&Es.

Entrapment is often a go-to word when a bad guy is caught with his hand in the cookie jar. It’s almost as if some people think it’s a “get out of jail free” card.

So what exactly is entrapment?

For starters, it’s more than simple trickery, such as when undercover cops grow long hair and beards, and wear jeans, t-shirts, and tennis shoes as part of a disguise so that they’ll fit in with a certain crowd. Or, when a female officer wears a tight, short skirt and 10-inch heels while parading along sidewalks pretending to be a hooker who’s fishing for “customers.”

A person is “entrapped” when he is persuaded by police, or their agents—someone acting on their behalf, such as an informant—to commit a crime that he had no previous intention of carrying out. In simpler terms, the officer or agent of the police convinced the person to commit a crime he otherwise would not have committed. Cops may not plant the “commit the crime seed” into the mind of an innocent person.

A defendant who is the victim of entrapment may not be convicted of the crime.

The DOJ – Entrapment

The Department of Justice details entrapment as …

“Entrapment is a complete defense to a criminal charge, on the theory that ‘Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.’ Jacobson v. United States, 503 U.S. 540, 548 (1992). A valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant’s lack of predisposition to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988). Of the two elements, predisposition is by far the more important.

Inducement is the threshold issue in the entrapment defense. Mere solicitation to commit a crime is not inducement. Sorrells v. United States, 287 U.S. 435, 451 (1932).”

Solicitation of a Crime is NOT Entrapment!

It’s perfectly legal for police officers to pretend to be someone they’re not in order to get to the bottom of a criminal case. For example, the undercover officer who pretends to be a an arms dealer who requests to purchase illegal firearms from a suspected criminal.

It is not entrapment when a person is ready and willing to commit a crime when approached by an officer, undercover or not.

The mere providing of an opportunity to commit a crime is not entrapment. In order to find entrapment, there must be persuasion to commit a crime by the entrapping party.

Entrapment is a legitimate defense. However, the burden of proof is squarely on the shoulders of the defendant. To claim inducement, a defendant must prove that police conduct absolutely created a situation where a law-abiding citizen (the defendant) would commit an offense. The defendant must prove to the court that he was unjustly persuaded, coerced, threatened, and/or harassed into a situation where he committed the crime for which he was charged.

Again, an undercover officer who merely approaches someone to ask if they’d be willing to sell the officer a quantity of drugs, and they do, this is not entrapment. The officer in no way unjustly persuaded, coerced threatened, and/or harassed the subject. Instead, he asked for a product and the subject delivered the goods.

For example, the case of Officer Ima Agent and cocaine seller Willie Deal:

Officer Ima Agent, dressed in jeans, a Grateful Dead t-shirt, and scuffed, red Chuck Taylors, sees Willie Deal, a suspected drug runner, standing on a street corner. She sees Deal make several exchanges with people—cash for small, pebble-shaped pieces of aluminum foil. So she approaches Deal and their conversation goes something like this.

“What’s up?” says Agent.

Deal gives the female undercover cop a head to toe once over. “Just chillin’. Know what I’m sayin’, Shorty?”

“I’m in town for the weekend visiting my boyfriend. He’s in the county lockup and one of his friends, Joe Blow, said I might be able to hook up around here. He point me in the right direction?”

“Depends, Shorty. Whatcha’ looking for?”

“Just a rock or two. All I got is thirty bucks, though.”

Deal gives her another look. Thinks for a minute. Looks around. Another look. “Okay, Shorty. Let me see the thirty and see what I can do.”

Officer Agent shows Deal a crumpled ten and twenty (undercover cops always wrinkle “buy money.)” New bills are dead giveaways to bad guys, that they’re dealing with a rookie undercover cop.

Deal produces two small foil-wrapped packages. Agent opens one to inspect the goods and determines that it is indeed crack cocaine. Then she signals to her partners with a quick a scratch to the right side of her head, the sign to move in to make the bust.

The scenario between Agent and Deal is a legal arrest. No entrapment.

Deal was absolutely ready and willing to sell drugs. Agent in no way unjustly persuaded, coerced, or threatened Deal to sell her the drugs.

 

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Trapping the Trappers: Police Integrity Tests

Integrity tests are designed to watch and evaluate an officer’s conduct in various situations.

The purpose of these exercises to determine if an officer’s conduct is appropriate. A few departments incorporate these evaluations into their regular daily operations.

The operations/stings are simple. An official from internal affairs, or similar office, plants a “drop item,” such as a wallet containing money, in a location where the officer can easily discover it.

Then, while under surveillance, the officer is judged by how he handles the “find.” Does he turn the wallet and contents over to the department?

Lincoln’s watching!

Does he attempt to locate the owner? Or, does he keep the cash and simply toss the wallet into a nearby garbage can? It’s a test of the officer’s integrity/honesty.

Random Testing

Integrity tests are conducted randomly, unless officials suspect an officer of dishonesty. Then he/she becomes a target of the test. Otherwise, the goal is to ensure that law enforcement officers do not abuse the powers granted to them by local governments.

Officers who fail these tests are fired and sometimes prosecuted, if warranted.

But is this a form of entrapment?

Entrapment

Black’s Law Dictionary defines entrapment as “the act of officers or agents of the government in inducing a person to commit a crime not contemplated by him/her for the purpose of instituting a criminal prosecution against him/her. Typically entrapment only applies to overbearing official conduct seen in the form of flattery, pressure, harassment and fraud.”

To avoid entrapment investigators must address the threshold question courts consider when examining this point—was the individual pre-disposed to commit the crime?

Therefore, the tests must be conducted randomly, or the department must have credible information regarding a target’s criminal activity.

The basis for the entrapment law/rules is this:

A 1992 Supreme Court ruling, Jacobson v. United States, stipulated that police “may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the government may prosecute.” The Court went a step further further in Jacobson, stating that, “When the governments’ quest for convictions leads to the apprehension of an otherwise law abiding citizen who, if left to his own devices, likely would never run afoul of the law, the Court should intervene.ii

You Can’t Make Me!

So yes, the Court was quite specific—police officers may not induce a crime and then arrest someone for the idea/act they initiated. The same holds true when investigating police officers who run afoul of the law.

I know, if an officer does nothing wrong then he/she has nothing to worry about. Simply pick up the wallet and turn in to lost and found, with the contents still in place. Easy, right?

Well, sure it is. But the idea that one’s own department has people running around planting items all over the city in an attempt to catch an officer, any officer, doing something wrong is horrible for morale, especially among the 99.9% (I made up this number, but it’s super high) who’d never in a million years do anything wrong, on purpose. Therefore, sometimes it’s best to call on an outside agency, such as the FBI, to assist with the sting/integrity testing. Doing so eliminates the distrust of fellow officers, and to help ease the problem of low morale caused by these often thought of as distasteful operations.

But, as long as there are officers who pocket ill-gotten gains, there will be another officer lurking in the shadows waiting to catch them. It’s the nature of the beast.

“The Beast”

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