Undercover Police Rules

Undercover police officers take assumed identities and often commit crimes in an effort to apprehend criminals. These long-term investigations allow police officers to collect information and gather evidence without the impediment of identifying themselves as police officers. However, officers who go undercover still must abide by rules in pursuit of justice.

Very few rules exist to guide undercover police officers in the field beyond basic police regulations, and even fewer rules are known to the public about the conduct of undercover officers. When an event occurs to spotlight the rules of undercover officers, that is generally when minimal information is revealed about undercover procedures. For example after a deadly shooting in New York involving undercover officers in 2007, The New York Times reported that rules allow undercover officers to consume no more than two drinks in order to maintain their cover. Many of the rules that do exist for undercover police officers allow them to commit certain crimes in an effort to maintain their undercover identities.

The Supreme Court held in 1984 that undercover police officers posing as inmates are not required to real Miranda rules suspects prior to getting statements. Although the case began in Illinois, the Supreme Court decision makes it the law of the land that undercover officers are not required to Mirandize suspects already in prison. However, any suspect that has already been indicted by a grand jury or appeared in court to face or hear charges against him cannot be interrogated by an undercover officer to get incriminating statements, as the court held in U.S. v. Henry. The reason for this is that once indicted or appearing in court, all suspects have a Sixth Amendment right to be represented by counsel.

Probable cause is the officer's rationale for wanting a search warrant or to conduct an undercover investigation. That rationale must include evidence or facts that would lead a reasonable person to conclude that a crime has been committed, was committed or is about to be committed. The Fourth Amendment requires that all searches of a person, her home and her property be done with a warrant issued based on probable cause. This means that undercover police officers may not conduct searches or initiate undercover investigations without probable cause; however in Pearson v. Callahan, the Supreme Court held that such investigations are legal.

Because police officers engage in undercover investigations to target victimless crimes like prostitution, drug dealing, and dog fighting, they sometimes face charges that a suspect was coerced or trapped into committing a criminal act. These crimes by their nature are difficult to prosecute because there are no victims to file a complaint and police officers have to infiltrate the community to apprehend those who violate the law. Although undercover police officers are not allowed to coerce confessions or trap suspect in situations where the only option is to violate the law, the Supreme Court has allowed undercover officers to engage in his behavior if the defense cannot prove the police induced the crime and the defendant was not predisposed to commit the crime.