Undercover operations involve a variety of deceptive investigative tactics and techniques that are used to collect information leading to arrests. A number of factors make the use of undercover operations necessary including an absence of complainants or witnesses, conditions that make many crimes such as drug trafficking difficult to overtly detect or investigate, and the ability of criminals to conceal evidence of their crimes. Following their increased use since the 1970s, undercover operations have been heralded by public officials and the media as being effective at combating a variety of crimes, which would otherwise not be possible with the use of traditional policing tactics. According to police ethics scholar Gary Marx, the broad enthusiasm for undercover operations in the United States has in effect contributed to the widespread acceptance, legitimacy, and growing use of deceptive tactics by U.S. law enforcement agencies.
Proponents of undercover operations have a tendency to assume that these operations are free of ethical concern because these practices have been upheld by state and federal courts. Furthermore, proponents tend to ascribe to the utilitarian philosophical belief that the deception used in undercover operations is acceptable because the end result of arresting criminals justifies its use. After all, targets of undercover operations do in fact willingly choose to break the law. Or do they? These common misconceptions concerning the ethics of undercover tactics are perpetuated by the secrecy that surrounds undercover operations, and the fact that most lay people are uniformed and unaware of the actual tactics that are being used. According to criminal justice ethics scholar John Kleinig, the lack of transparency results in the frequent entrapment of unwary innocents who are induced by unrealistically attractive promises. In some cases suspects would not otherwise engage in such crime absent of police inducements and influences.
A number of tactics and techniques that are commonly used in undercover operations pose serious ethical challenges in a democratic society. Undercover tactics often involve the use of trickery and coercion by undercover officers, the targeting of particular individuals or groups based upon the ulterior motives of law enforcement officials, the tempting of suspected criminals using peer influences including friendship and seduction, and setting traps by staging a scene for illegal activities to occur. Despite common misconceptions that the practice of (en)trapping targets constitutes unlawful entrapment, trap-setting is a common and lawful undercover practice; however, the legality of trap-setting does not negate the fact that the practice warrants ethical scrutiny.
Undercover Tactics and Techniques
Police ethics expert Peter Villiers differentiates between two general levels of undercover operations which consist of: casual undercover activities and sustained undercover activities. In causal undercover activities an officer temporarily conceals his or her identity, but is not given a cover story and does not have an organized plan of deception. For example, an officer is given the detail of dressing as a civilian to investigate a place of business that is reported to be a front for illegal activities. Alternatively, sustained undercover activities involve a well-prepared, skillful, and sustained plan of deception for the purpose of detecting and infiltrating patterns of criminal activity that may not be attainable without deceptive means. Sting operations are a common form of sustained undercover activity. These deceptive operations often involve an officer or civilian informant who poses as a criminal or potential victim and goes along with the criminal activities in order to collect evidence of wrongdoing. The following list provides several additional examples of common undercover tactics:
- Having an officer pose as a prostitute to raid illegal solicitation, or pose as a solicitor of sex to raid illegal prostitution
- Having an undercover officer solicit illegal contraband such as drugs or child pornography from a supplier
- Posing as a child in a chat room or social networking Web site to lure a child predator
- Arranging for a minor to attempt to purchase alcohol or cigarettes from a retailer
Undercover operations often employ a variety of deceptive investigative techniques to infiltrate criminal activity that include, but are not limited to, the use of unmarked patrol cars, concealed radar traps, and photo/radar traffic enforcement devices; the use of civilian informants, undercover agents, and decoys; using deception to gain warrantless access to premises; using fencing fronts (sting operations); and a variety of surveillance activities such as wiretapping, bugging, global positioning system (GPS) tracking, photos, and videos. Although these undercover activities are for the most part socially acceptable, legal (with the exception a few grey areas), and legitimate tools of law enforcement, this does not necessarily mean that these clandestine activities are immune from ethical dilemmas or controversy.
Trickery
In 1985, Gary Marx observed three common methods of trickery that officers use in undercover operations: (1) offering the target(s) an unrealistically attractive and legitimate benefit in exchange for participating in a minor illegal activity, (2) simply hiding the illegal activity in a manner that the target(s) may not be fully aware of the crime(s) in which they are participating, and (3) choosing a suspect who is weak and vulnerable to the deceit of the operation.
With the first method targets are lured into a minor criminal activity under the pretext of some greater desirable benefit. The Federal Bureau of Investigation’s (FBI) sting operation titled ABSCAM, which was implemented in the late 1970s, exemplifies this method. ABSCAM was a public corruption investigation that ultimately led to the conviction of a number of public officials including a U.S. senator, five members of the U.S. House of Representatives, and members of the Philadelphia City Council. In the ABSCAM case federal agents induced members of the Philadelphia City Council to commit bribery by telling them that wealthy investors would build a convention center in Philadelphia and possibly invest in other areas, but the deal would not go through unless the officials accepted bribes. Neither of the officials solicited the bribes and both indicated that money was not necessary.
The ABSCAM case also demonstrates the second form of trickery by which the undercover officers hide the illegal activity in a manner that the target(s) may not be fully aware of the crime(s) in which they are participating. In several of the cases defendants were led to believe that they could make money as a consulting fee without having to deliver on any promises. They were told that the money should not be construed as an unlawful bribe, but alternatively they were told that the money was legitimate compensation for consulting services. The third form of trickery involves choosing suspects who are vulnerable to the deceit of the operation. This issue is particularly problematic in situations in which the targeted suspects have diminished capacity that may exist due to being a juvenile, having a mental disability, or being under emotional, financial, or physical distress (e.g., illness or influence of drugs).
Targeting
Undercover work frequently raises ethical concerns pertaining to how or why targets are initially chosen for secret investigation. The potential for bias, misuse, and even abuse of police investigatory power is much greater for covert operations than overt police operations. In conventional police investigations many cases are followed in response to reports made by witnesses and complaints made by victims. In undercover operations these democratic controls are not present, especially when decisions to initiate an investigation are solely based on the discretion of law enforcement officials. It is true that this discretion is necessary in a variety of situations including unreported crimes, organized crime, white-collar crime, and victimless crime (e.g., vice crimes), but along with this discretion comes the risk of abuse. According to Gary Marx, in the 1980s undercover investigations for drug trafficking and a variety of other crimes were often motivated principally by the political activities of the suspects in question. One case in point involved a top Los Angeles mayoral aide who became the target of a Los Angeles Police Department (LAPD) investigation presumably because of his role in reforming the LAPD. Although the aide was not convicted of the trumped-up charge, he did lose his job due to the shadow that the investigation cast on his reputation.
Temptation
Proponents of undercover operations tend to believe that targets who fall for undercover traps are criminals who have a propensity to commit crime and they will commit the crime regardless, whereas law-abiding citizens would not be tempted under the same circumstances. In many undercover situations this assumption is simply not true. Temptations are commonly used in undercover operations to induce targets to commit crimes; unfortunately, this practice does not receive the degree of ethical scrutiny it deserves.
Temptations used in undercover operations typically involve promising the target attractive benefits or unrealistic sums of money in exchange for committing crime. For instance, in the ABSCAM case undercover federal agents told Philadelphia City Council members that they would build a convention center in the city only if the council members accepted their bribes. Another common practice is to befriend targets, encourage, and aid them in committing a crime. In rare cases undercover officers or informants develop sexually intimate relationships with targets. Gary Marx refers to these practices as “false friend deception.”
False friendships and intimacy have also been used in a variety of cases to seduce targets and collect evidence from suspects in criminal investigations. It is not uncommon for female officers or agents to go undercover and develop intimate relationships with suspects in order to collect evidence. Furthermore, another practice is for male undercover officers to play the role of the “john” and solicit sex from prostitutes, which in some cases involves the consummation of sexual acts.
Coercion and Entrapment
The use of coercion and trap-setting are common practices in undercover operations. Trap-setting involves staging a scene for illegal activities to occur. Trap-setting is legal and is commonly used in undercover operations including decoy and sting operations. According to B. G. Stitt and G. G. James, when coercion and inducements are used to draw suspects whom otherwise would not engage in the unlawful activity into a trap, the practice becomes entrapment. Coercion involves the use of intimidation or threats to induce a suspect to commit a crime. When coercion is mixed with inducement and other temptations the incentive to commit a crime is difficult to overcome, even for noncriminals. Although coercion is commonly used in sting operations the degree of coercion that is acceptable before the practice becomes entrapment constitutes an ambiguous and grey area of the law.
The use of excessive coercion and unlawful entrapment was evident in the federal case against former Assistant U.S. Attorney General Donald Robinson. Robinson was accused of taking a bribe from a federal agent who at the time he thought was a criminal involved in organized crime. Robinson later won his case on the grounds of unlawful entrapment. Although Robinson accepted the bribe he initially refused the bribery offer and only accepted the offer after both he and his wife received persistent threatening phone calls, which included a threat against his personal safety.
Bibliography:
- Einstein, S. and M. Amir, eds. Police Corruption: Paradigms, Models, and Concepts—Challenges for Developing Countries. Huntsville, TX: Office of International Criminal Justice, 2003.
- Heffernan, W. C. and T, Stroup, eds. Police Ethics: Hard Choices in Law Enforcement. New York: John Jay Press, 1985.
- Kleinig, J. The Ethics of Policing. New York: Cambridge University Press, 1996.
- Marx, G. T. “Who Really Gets Stuck? Some Issues Raised by the New Police Undercover Work.” In Moral Issues in Police Work, F. A. Ellison and M. Feldberg, eds. Totowa, NJ: Rowan & Allanheld, 1985.
- Miller, S., J. Blackler, and A. Alexandra. Police Ethics. Sydney, Australia: Southwood Press, 1997.
- Prenzler, T. Police Corruption: Preventing Misconduct and Maintaining Integrity. Boca Raton, FL: CRC Press, 2009.
- Stitt, B. G. and G.G. James. “Entrapment: An Ethical Analysis.” In Moral Issues in Police Work, F. A. Ellison and M. Feldberg, eds. Totowa, NJ: Rowan & Allanheld, 1985.
- Villiers, P. Better Police Ethics: A Practical Guide. London: Kogan Page, 1997.
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