Undercover investigations involve covert means of discovering information based on the actions of a human agent. The agent may be a sworn police officer or an informer with unique access to criminal milieu. The informer may provide information and serve to introduce the police officer to the milieu, in return for leniency, financial benefits, or other benefits. The defining characteristic of such investigations is secrecy with respect to the true identity or purposes of the actor(s). Undercover means are often used in conjunction with other covert means such as hidden video and audio recorders and location tracking devices. But the presence of an active human agent who can influence the course of events sets the undercover investigation apart from more passive means of secretly gathering information.
The interaction may be impersonal. Consider the case of a police agent acting as a fence in a property theft sting, who pretends to be interested in purchasing stolen goods from whomever enters the storefront. Alternately, the interaction can be of a more intimate nature, involving friends (or one who pretends to be a friend) and even family members who covertly gather evidence against those with whom they have a personal relationship. The interaction can occur in places that are legally public and visible to the public, as on a street corner, or it may occur on private property and/or in places that are not visible. In such private settings an overt investigation requires a search warrant, but in the undercover context the search is deemed to be voluntary and hence there is no warrant requirement.
The police use of deception as a tool for gathering evidence can be viewed as a necessary evil in a context in which police face legal and logistical limitations when investigating crimes of a consensual nature that do not involve a direct victim as with vice or bribery; those in which victims may be unaware and thus not complain, as is frequently the case with white collar crimes such as consumer fraud; those where witnesses and victims are intimidated, rewarded, or indifferent and do not report crimes or cooperate with authorities; and those where there are well-organized and well-insulated criminal groups engaged in complex violations, against whom it is difficult to gather evidence. In such contexts the law is likely to be underenforced relative to more easily discoverable and prosecutable offenses. Undercover means offer a way of bringing some equity to that pattern.
The challenge is of course to prevent secret police means from becoming an unnecessary evil, serving private goals apart from the investigation of crime or by violating the spirit, if not the strict legality, of laws limiting police powers and protecting civil liberties and civil rights.
Undercover methods are a more common feature of conventional criminal investigations in the United States than in Europe. Police in the United States face very few restrictions in their use of deception before an arrest has been made. Even then, the use of jailhouse informers is not uncommon. Police can go very far in offering temptations and encouragement to those they suspect. Unlike police in much of Europe, police in the United States are generally exempt from criminal prosecution when their undercover role involves them in work-related violations of the criminal law.
However, in the American context, in contrast to many countries in Europe, those arrested can use the defense of entrapment. This was initially recognized by the Supreme Court in the 1932 Sorrells case. The government must carefully walk the line between laying a trap for the “unwary innocent” and the “unwary criminal” (a distinction noted in the 1958 Sherman case). But the entrapment defense is not commonly used. To successfully use this defense, arrested persons must convincingly argue that they were not otherwise predisposed to the violation that occurred. This permits the prosecution to introduce any relevant prior criminal record to prove the opposite. This subjective standard refers to the motivation of the person arrested rather than the objective behavior of police, who on occasion may go to extremes to induce, or contribute to, the violation. In principle, a constitutional standard of due process might be applied in support of the objective defense, but this is extremely rare.
Beyond the courts, covert police means are subject to varying degrees of control by legislatures. There are also internal means of control involving policy guidelines, review boards, personnel selection, training, and supervision.
Several types of undercover operation as defined by their basic objective can be noted: intelligence, preventive, and facilitative investigations. Intelligence undercover efforts may be postliminary or anticipatory. The former involves seeking information after the fact. Police know that a crime occurred and seek to learn the identity and location of those responsible. Anticipatory intelligence undercover efforts are more diffuse and open ended and involve an effort to learn about events that may be planned but have not yet occurred. Informers are central to such efforts.
Investigations with prevention as their main goal can involve strengthening a potential victim (sometimes called target hardening) or suspect weakening. Prevention is sought by making the victim less vulnerable, weakening the ability of suspects to act, and/or increasing the likelihood that they will be identified and apprehended. The latter is intended to deter. In place of formal arrest and prosecution in which actions taken are subject to court procedures and review, preventive undercover actions sometimes involve the legally and morally gray areas of disruption and subversion.
A form of prevention can also be seen when charges involving conspiracy are brought. These are difficult to prove and often controversial, since only the planning of the action, rather than its being carried out, is involved. The latter brings a presumption of guilt on someone’s part after an event has occurred. In contrast, some planned actions stopped via conspiracy charges might not actually have been carried out even absent law enforcement attention. Those in law enforcement face difficult questions in deciding whether and when to take preventive actions.
Facilitative undercover operations are far more common than preventive ones. Perhaps ironically, their goal is to encourage the commission of a crime rather than to prevent it. This may be done to make arrests, remove contraband such as drugs or weapons from the street, recover stolen property, or generate leverage over an informer. In contrast to preventive efforts, we may see victim weakening and/or suspect strengthening.
Undercover operations can be very costly to other values and have the potential for unintended consequences and abuse, relative to overt means such as when those identified as police carry out interviews, do searches, and interrogate suspects. Civil liberties, privacy, and a general societal sense of trust may be undermined. The practice of making deals with criminals is troubling to some observers.
In addition, if not done cautiously and competently, the use of covert means can increase crime and cause events that would never have happened, absent police intervention. This could occur as a result of providing a motive or temptation for a crime, persuading or coercing an otherwise nonpredisposed person, providing a scarce skill or resource without which the crime could not be carried out, creating a market for the purchase or sale of illegal goods and services, and the indirect provision of resources used for other illegality. Resources can also be wasted in preventing actions that would never have occurred anyway. The tactic may also harm the undercover agent and innocent third parties.
With appropriate legal and departmental restrictions and supervision, problems can be reduced. Problems are more likely as we move from intelligence gathering to more active efforts aimed at deceptively shaping an event creating criminal milieu. Offering a target for victimization usually raises fewer problems than does carrying out preventive or coconspirator-ial actions. Investigations based on prior intelligence or complaints that are close to real-world criminal environments are likely to raise fewer questions than those involving random integrity testing or the creation of an artificial criminal environment with unduly attractive temptations.
Even with the best of intentions, personnel, and policies, the use and control of covert tactics are more difficult than is the case with overt tactics. Undercover work is paradoxical and of necessity involves certain risks and tradeoffs.
Consider efforts to do good by doing bad (for example, lies, deceit, trickery), to try to reduce crime yet unintentionally increase it, to restrict police use of coercion associated with increased use of deception; consider seeing criminal informers act as police and police act as criminals. There are also conflicts between gathering intelligence and taking action that gives the intelligence away, between rigid bureaucratic efforts to eliminate or reduce discretion and the need for creativity and flexibility in ever-changing situations, between prevention and apprehension, and between the operational advantages offered by secrecy and the need for accountability.
The many contexts and types of undercover tactics and the different roles that informers and police agents may play prevent any sweeping conclusions. However, given the unique characteristics of undercover work such as secrecy, prevention, temptation, immersion in criminal worlds, and entrapment, the tactic should generally be one of last resort, used only for serious offenses and subjected to intense oversight at all stages. There must be proportionality between the seriousness of a problem and the risks associated with the means. Sometimes the risks or costs of taking action will be greater than not taking action.
