From the Mafia to the Hells Angels -- What It Takes to Go Undercover {Asylum}

Aug 12th 2010 12:10PM A common urban legend, which floats frequently among prostitutes and drug dealers, as well as in the public at large, holds that if an undercover police officer is asked if he is a cop, he must admit it. Otherwise, the legend says, the police officer has committed "entrapment" and if he then arrests a person for a crime the person will be acquitted.

This scenario, propagated in part by popular police television dramas is not true. While there is an "entrapment defense" which, if established, entitles a defendant to an acquittal, the fact that a police officer lies to a suspect about being an officer does not establish the defense.

This legend is commonly believed because many people believe that police are not allowed to use deception in the course of their law enforcement duties. In fact, courts give officers wide latitude to use deception in undercover operations, interrogations, and other areas for a several reasons. First, criminal suspects are not expected to be honest with the police, so police must be allowed to use deception as well in order to "level the playing field" and allow the officers the necessary latitude to catch criminals. Second, without the use of deception, undercover operations would not be possible. The very act of an officer posing as a drug purchaser or prostitute is, in and of itself, an act of deception. Without this deception, however, courts note that it would be extremely difficult to fight drug and vice crimes. Finally, a rule which would require an undercover officer to identify himself as such to a drug dealer, upon request, would place officers in an especially dangerous situation.

In most jurisdictions, to establish a defense of "entrapment" a defendant must establish three separate and distinct factors. These factors are commonly referred to as the "subjective test" of entrapment, because they focus on the subjective intentions of a criminal defendant rather than on the conduct of the undercover officer.