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Join the conversation! There are now 29 comments on “Police vs Privacy pg 69
  1. Raen says

    One thing I’ve wondered sort of related to this… are police officers allowed to tell you that police officers aren’t allowed to tell you they’re not police officers? Because I know that happened in that one episode of Breaking Bad…

    • Have a look at the chapter on Entrapment.

      Especially here.

      But the short answer is yes, they’re allowed to lie to you like that. (But don’t you go lying to them — that’s usually a crime.)

      • That page doesn’t address the question I was asking, though, which is whether police are allowed to themselves relate the myth that that strip addresses so they can take advantage of it. I’d been wondering about it since what Clara’s lawyer alludes to in page 29, and now this… it’s not really the same as either, so there’s no reason it wouldn’t be allowed, but it’s certainly not obvious from the page you linked that it would be.

        • I got what you were asking: can the police lie to you about whether they have to admit to being cops or not.

          Yes, the police can say that. No, it’s not entrapment. No, it’s not coercion.

          Just think through what counts as entrapment or coercion: overcoming your free will, making you do something against your will. (That’s why I linked back to that section.)

          It’s hard to think of a scenario where a cop saying “I’d have to tell you if I was a cop” would overcome your free will and make you commit a crime you otherwise wouldn’t have wanted to commit.

          Similarly, it’s hard to think of a scenario where that would make you feel like you had no choice but to consent.

          Although in your scenario a police officer is lying about the law, he’s not lying about the legality of your actions. If he instead said something like “it’s totally legal to do this,” then it’d be more likely to count as entrapment. And if he said “the law requires you to consent,” then your consent would more likely be invalid.

          Does that help?

          • So, just to clarify… even if the police lie about the whole “a cop doesn’t have to identify themselves as a cop” thing, that doesn’t actually make you want to commit a crime when you don’t already have a desire to do it. So it’s not considered entrapment.

            If I’m asking a whole bunch of clever questions about “does a cop have to identify themselves if I ask”, it’s probably a safe guess that I want to commit the crime and am worried about getting caught. They aren’t overcoming my free will and making me want to commit the crime – I’m totally already thinking about doing it.

  2. Tualha says

    Nice to know the bastards still have some limits on what they can do :p

      • Not so much “how to get around” those limits, but fine-tuning what is permitted as “reasonable.”

        This is a fun area of law, because there’s always something new. Situations keep popping up that hadn’t been dealt with before, and the courts have to figure out how the Fourth Amendment applies.

        Over the years, you see more and more situations where a search is held to have been reasonable for 4th Amdt purposes, without having to get a warrant. These are somewhat glibly called “exceptions to the warrant requirement,” which leads a lot of people to think they are “eroding” the Fourth Amendment. But it’s really just fine-tuning what counts as “reasonable.”

        Of course, plenty of court decisions can be baffling, because they’re not really based on the principles outlined at the beginning of this chapter. They’re just the outcome that the judges wanted to get. Unprincipled rulings breed chaos and confusion. For the most part, however, the courts cases boil down to “is it reasonable to allow this kind of search in this kind of situation without making the cops go get a warrant?

        They’re trying to define what the law actually requires, not how to get around it.

        • I’m sorry, but isn’t that really just saying the same thing in a roundabout way?

          Let’s take a look at our rookie and veteran here. Their goal is to find out what these guys are doing and, if it’s illegal, arrest them. What’s stopping them? Their fourth amendment rights. What are they doing to get their job done? Finding ways to get around said rights. How do they get around them? By finding ways to make their searches “reasonable”.

          I’m not even saying this is wrong, nor do I mean to imply it. It just seems to me that a lot of a cop’s job has to do with sneaking past your Fourth Amendment rights without actually violating them.

          • Doing what the Fourth Amendment permits is not “sneaking past” it.

            It would be more appropriate to say that a lot of a cop’s job is figuring out the lawful way of going about getting evidence.

            Now, there certainly are sneaky methods that are lawful under Fourth Amendment law. But that’s not the same thing as circumventing the Fourth Amendment itself.

        • From what you just said, I think you need to check your definition of “fine-tune”. Fine-tuning involves small movements in both directions, not gross movement in one direction. That would be changing what is considered reasonable, which would seem to be the case if they consistently rule more things to be reasonable.

  3. Alectric says

    I’m still hung up about the scenario from the entrapment chapter, where they could wait for you to commit a crime rather than inform you that an action would be unlawful. I hope that at the very least, if you ask if something is lawful or not, they can’t lie about that…

    • I’m no law expert, but I don’t think they can lie about that. It’s not entrapment if they do, you do it, and they arrest you, but it sounds close to that.

    • If you ask the police point blank, “is it lawful for me to do this?” and they tell you “yes,” and then you do it, and then they arrest you for it?

      Sounds like entrapment to me.

      You wouldn’t have done it, but for the officer’s misrepresentation. The cop tricked you into committing a crime.

      But they’re under no obligation to warn you that you’re about to do something unlawful, so they can just stand there and watch you commit a crime and then arrest you. That’s not entrapment.

      • I’m not saying that would be entrapment, I’m just saying it feels wrong. I mean, I know it’s not the officers’ duty to inform anyone whenever they might break the law, but in the comic scenario, they clearly saw those people were about to unwittingly break a law that’s not inherently obvious. Those people were trying to carry out their right to protest lawfully within the best of their knowledge, and rather than giving them a helpful warning, the officers were basically anticipating an inevitable oversight so they could shut them down. It’s so antagonistic. And since you already established that it’s impossible to know every law, all it does it discourage people from carrying out their rights or attempting to take action when they want to. It would have been easy to reorganize the protest so that it didn’t block the bridge, but instead the officers chose to go through all the trouble of arresting and charging them. That shows a bias on their part either in favor of making arrests or against civil protests. Wouldn’t most people agree that if an unintended crime could easily be prevented, that would be much preferable to letting it happen so that the perpetrators could be punished for a law they didn’t mean to break?

        • That is actually an interesting point. I mean, in the chapter about strict liability we see that the law is actually unknowable. There are just too many regulations. Not knowing the law is no excuse for committing a crime, but you actually have to be an expert to know the law. In this context, isn’t it logical to assume certain obligation to communicate that something is unlawful before people do it?

        • Cops also enjoy the right to remain silent. They can say “I don’t know”, if you ask, or simply ignore the question.

          I see two excellent points here:

          1. Assumption of intentional lawbreaking. This is how riots can happen. If, instead, you remind them that they need a permit for more than x people in a public street, and they need to be careful not to block the bridge, you’re more likely to have things work out. One of the guidelines of Wikipedia is “Assume good faith”, and I’ve seen similar sayings elsewhere. If you assume that people are evil, then that is what you’ll see.

          2. Ignorance of the law because it’s unknowable. This is an excellent reason to require cops to be proactive, and assume that people don’t know the law and should be reminded.

          • If you ask a cop if something is legal, he says “I don’t know” and then arrests you for doing it, it’s bloody obvious he’s lying through his teeth.

  4. Josh says

    could a cop tell you something is illegal when it isn’t?

    • Even if he could, there’s not much investigative incentive for him to as it’s pretty clearly entrapment (if you argue that his answer 100% could’ve stopped your criminal behavior). So lying to you and say that it’s legal when it’s not is really just inviting you to commit the crime for free.

      • He didn’t ask if a cop could tell you that something is prohibited is allowed, he asked if a cop could tell you something is allowed is prohibited. And it happens all the time – unless of course there actually are laws that say you can’t film a cop.

  5. Amar says

    Although I get the idea of evidence being suppressed, I think it’s pretty clear that, say for example your car was found to have a large amount of drugs in it, you’re probably involved in illegal activities. With that in mind, even if the drugs found can’t be used as evidence, the police can continue to monitor you to try and find out what’s really going on. My question, then, is given that the evidence has been suppressed, would it still provide valid grounds for issuing a warrant? It’s a clear indication of what’s going on, but at the same time it was only found through inappropriate methods – I guess my question is when evidence is suppressed, to what extent is it actually “suppressed”?

    • I’m pretty sure at that point, according to our friend with the big hammer, the suppressed evidense is straight-up invisible. It does NOT EXIST.

      This would apply to holding you, future warrants, the trial, etc. Anything that could be used against you during procedure.

      Now, when it comes to knowledge, the fact that you had a bunch of drugs in your car may not harm you directly anymore, but the cops STILL KNOW.

      The investigators can now look at new and old evidense with the IDEA that you traffic(?) drugs, and that could bring to light more evidense, but the fact may never be told to a jury or used for a new warrant.

  6. Prisoners Dillema says

    The answer to that is the “fruit of the poison tree” doctrine. If evidence used to get a warrant was unlawfully obtained, then not only is that evidence suppressed, but so is any evidence derived from it by way of warrants or other probable cause.

  7. Andrew Farrell says

    If a cop falsely tells you that they need your consent to search something or else someone else will die, is that coercive deception?

  8. WJS says

    What about the general perception that cops only ask out of politeness, and if you say no they’ll bust you for obstructing an investigation? That’s not anything the officer in question has done wrong, but doesn’t it kind of nullify the idea of consent?

    • That’s why it’s so important to educate people about their rights. With a few exceptions such as Miranda, police are under no obligation to inform you of your rights.

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