There are limits to what the police can do in the attempt to detect crime. If they go too far—if their conduct is outrageous, they can violate the suspect’s due process rights.
Outrageous Conduct or Entrapment?
A claim of outrageous conduct is related to, but different from a defense of entrapment. Entrapment involves a defendant’s claim that he wouldn’t have committed the crime but for enticement by the police. The prosecution argues otherwise, asserting that the police simply provided the opportunity for the crime in question and that the defendant was inclined to commit it.
But an inclination to commit a crime isn’t central to a claim of outrageous conduct. Outrageous conduct bears more on the officers’ actions and less on the defendant’s. What really matters is whether the government overstepped its bounds.
Proving Outrageous Conduct
Because there isn’t a universal test to determine whether conduct is outrageous, courts look at the circumstances surrounding the crime and consider whether the police conduct is “shocking.”
To succeed on an outrageous conduct claim, courts typically require that the defendant show that the police were extensively involved in creating the crime or pressured the defendant into participating in it.
The prosecution often claims that the outrageous conduct of police was necessary for the "greater good," like:
- gaining a defendant’s confidence
- concealing an undercover officer’s identity
- protecting an informant, or
- protecting the public.
Example: Allowing the defendant to sample drugs or to take a small portion as payment in setting up a drug deal wasn’t outrageous because it was necessary to maintain the officer’s cover. (State v. Shannon, 892 S.W.2d 761 (1995, Mo. App.).).
It’s not easy to succeed on a claim of outrageous conduct. Even when courts don’t approve of the police conduct at issue, they usually find that it wasn’t so outrageous as to violate due process. For example, one court found that the use of an 11-year-old boy as an informant to set up his uncle on a drug charge wasn’t outrageous conduct. (Satterwhite v. State, 697 S.W.2d 774 (Tex. App. 1985).)
Similarly, another court ruled that the government using a defendant’s former attorney as an informant against the defendant wasn’t outrageous; at the time of the investigation, there was no longer an attorney client relationship between the two. (U.S. v. Hoffecker, 530 F.3d 137 (3rd Cir. 2008).).
Creating the Crime
When police orchestrate a crime from beginning to end, courts typically consider their involvement excessive.
Example: The police created a crime by:
- going to the defendant’s house in the middle of the night
- showing him a loaded gun
- accusing him of having ripped them off a month earlier by selling them powdered sugar instead of cocaine, and
- demanding drugs or money, which the defendant then gave them.
The conduct was so outrageous that the court reversed the defendant’s conviction for the sale and possession of cocaine. (People v. Shine, 590 NYS2 d 965 (1992).)
In another case, officers provided the defendants with:
- money to purchase food and supplies
- a manual on how to manufacture methamphetamine
- a government chemist to help instruct them, and
- a police vehicle to deliver the necessary materials.
The court found this behavior outrageous. (Commonwealth v. Mathews, 500 A.2d 853 (Pa. 1985).).
Crime in progress
It’s not outrageous conduct for police to involve themselves in a crime that is already happening, or to persuade a defendant to remain involved in criminal activity. In those situations, it’s okay for police to suggest the unlawful acts, to provide the supplies necessary to complete the crime, or to even act as both supplier and buyer of contraband.
Example: It wasn’t outrageous conduct for undercover agents to convince the defendants to expand their criminal activities from forging checks and selling marijuana to producing counterfeit money and manufacturing methamphetamine. Even though the agents provided the expertise and some of the supplies, it was the defendants’ idea to expand operations and they eagerly participated. (U.S. v. Dyke, 718 F.3d 1282 (10th Cir. 2013).).
Conduct can be outrageous if the police put extreme pressure on a defendant to participate in criminal activity, especially for the first time. An example of this is where a defendant was held in jail on made-up charges and excessive bail, and could only afford to pay bail by agreeing to participate in a drug transaction created by an undercover agent. (United States v. Bogart, 783 F.2d 1428 (9th Cir. 1986).).
Outrageous Conduct Against a Third Party
Typically, even if the conduct is outrageous, there’s no due process violation unless the police action directly affects a defendant. A defendant usually can’t win an outrageous conduct claim based on conduct that harmed a third party, such as an informant or a co-defendant.
Example: Even if it happened, an officer’s threatening to take an informant’s children away from her if she didn’t cooperate with a controlled drug buy wouldn't have been sufficiently outrageous, nor the cause of the defendant’s choice to behave illegally. (Pauser v. State, 609 S.E.2d 193 (Ga. Ct. App. 2005) (overruled on unrelated grounds).)
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