Expert: Loren Stevens - 1/5/2009

Question
Hello,
While I'm aware of police officers posing as both prostitutes and johns to
arrest people on both sides, but for writing purposes, I was curious about
how far undercover officers can go in more important cases, eg. to investigate
a string of murders. If it was believed that it could benefit the case, would
undercover female police officers actually sleep with johns? If not, what about
FBI agents? If neither, how kosher is it to enlist the help of actual prostitutes
to sleep with specific people?

Thanks for your help in advance.

Answer
Hello Cory,
I'll try to respond in no particular order.
There are essentially three categories of informant: passive, unwitting and directed. The passive require little if any regulations, as they merely pass on that which they have seen, heard, or information they have come across. The officer/agent simply listens, and maybe some Q&A to make sure they have harvested all the intelligence as possible. Next comes the unwitting informant. Not alot of rules here either, as the informant does not know the officer represents the government. However, the officer/agent cannot represent themselves as a medical Doctor, or member of the Clergy etc. That, is unacceptable.
Where the heartburn comes into play, is with "directed informants". You see, it is the directed informants that are viewed in the eyes of the court, as an EXTENSION of the agency doing the directing. With that, there are constitutional issues, and other legal and civil, and agency protocol issues.
Clearly, an informant cannot be directed to engage in a reckless, negligent and perilous manner.
Even a prostitute cannot be directed ie., told to turn tricks at the behest of the government, in furtherance of a governmental interest.
What if they end up with a "John" who is a physically abusive trick? or possibly HIV positive? or a number of other issues?
The agency has a responsibility the those in their charge, and a directed informant can arguably be included in that position.
All agencies have directives on covert ops. This includes parameters of the operative. Also, the officer runs the risk of muddying the prosecutorial waters, if they compromise their professionalism, during the course and scope of the investigation. In the eyes of a jury, even the appearance of impropriety can be enough to hinder the officer's testimony.
Other dangers and risks are plentiful, e.g.., use of controlled substances etc.
Or participation of crimes, in furtherance of an investigation involving more serious offenses, or "CCE" (continuing criminal enterprises). All that is weighed as the case progresses. Sometimes, it requires the prosecutor to prepare immunity status for the officer, other times it may require approval from a supervisor, depending on the gravity of the behavior. The courts realize the covert ops means engaging with criminals, that are not choirboys, and recognize that as an inherent challenge for police.
But even in murder cases, there are limits on how far a stretch the officer can go. Have officers crossed the appropriate lines in the past?? Yes, but it doesn't make it a good decision, or helpful to the case involved.
And, you might be interested in knowing, that "generally", local police have a wider stretch than do fed agencies. The authorization levels in fed LE are substantial, and in granite.
You might find it helpful in knowing why a decision for undercover ops in the first place, over conventional methods.
Covert ops is used, if no other practical approach is available, and/or, a cost-effectiveness is a consideration, or time frame is an issue.
Covert ops are only for specific purposes: gathering evidence of a crime that has happened, is happening, or is going to happen. Or, criminal intelligence.
Otherwise, conventional methods are employed.
As a reference, you might want to read "Under Cover" by Marx.
I don't necessarily subscribe to all of Mr. Marx's positions, but it will broaden your horizons on the subject.
Hope this is helpful.
Good Luck, and Regards,
loren
Now, on what the police, FBI or any other local, state or federal law enforcement officer/agent can or cannot do.