Prosecutorial Skulduggery Uncovered by Grits


I’m glad we have Scot Henson (Grits for Breakfast) keeping an eye on those Texas prosecutors for us. Here he calls our attention to this thread on the TDCAA (Texas District and County Attorneys’ Association) forum about a federal prosecutor agent trying to justify not telling the defense the fact that narcotics officers removed the license plate from an informant’s car before the informant provided it to the accused. The officers then used the missing license plate as a pretext for a stop, saw the dope “in plain view” (really? The defendant was driving around with something that is obviously drugs in plain view?), asked for and received consent to search the car, seized the dopes (the drugs and the consenting driver), and “expanded on” the case.

The prosecutorDEA agent, “Bill” (mathisfield at yahoo dot com), is trying to justify concealing from the accused the fact that there is an informant in the case.

This search might well pass muster in Federal court (New York criminal-defense lawyer Scott Greenfield writes here about Whren v. U.S. and the pretext search doctrine), or it might, in the words of one of the TDCAA commentators, “make some really bad case law.” I haven’t researched the issue, but off the top of my head, I would argue that police-created probable cause, like police-created exigent circumstances, can’t justify dispensing with a warrant. Further, this is a deliberate attempt to circumvent existing law, like the one rejected by the Supreme Court in Missouri v. Seibert, 542 U.S. 600 (2004). Also, entrapment and sentencing entrapment are well-developed areas of the law; PC entrapment would not be a stretch.

The accused would have a better chance in Texas state court. In addition to the arguments that could be made in federal court, the accused would be protected by the Texas exclusionary rule, Article 38.23 of the Texas Code of Criminal Procedure, which says that no evidence obtained in violation of the constitution or laws of the State of Texas shall be admitted into evidence against the accused. If the police removed the license plate without the informant’s consent, they stole it. There may be a good argument that the discovery of this evidence resulted from that law violation. The State might then respond that they had the informant’s permission to remove the license plate, but in order to prove that (beyond a reasonable doubt, which is the standard for them to overcome a 38.23 challenge), they might have to bring the informant in to testify.

But the defense is not likely to know to raise these issues if the government conceals the fact that the police tampered with the car; this is the concealment that “Bill” is trying to rationalize. Whether the stop was legal or not, “Bill’s” prosecutorial respondents seem to agree with me that his rationalizations are no good — that the government has a duty to reveal that it orchestrated the probable cause.

[Edit: Scott points out that “Bill” is not a prosecutor but a DEA agent. This changes lots — it’s not prosecutorial skulduggery but DEA skulduggery (which should surprise nobody). The prosecutors are in the right here, telling the DEA agent that his rationalizations stink.]

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0 responses to “Prosecutorial Skulduggery Uncovered by Grits”

  1. It was actually a DEA Agent who posed the original question on the message board. Otherwise, thanks for the link and for dropping by at happy hour the other night.

  2. I realize that often (mostly in court) “probable cause is what the cops say it is.” But wait just a dog-gone minute. If an officer can “manufacture” probable cause, what is the purpose of requiring an arrest based only on probable cause?

  3. I’m not sure I see the difference in the police removing the license plate of a car that is certainly going to be used for a felony, versus “bait cars” that are left on the street to hopefully be stolen by car thieves that are equipped with video cameras and GPS locators.

    If the car is provided by the CI, (who is now an agent of the police), to the suspect, the police should be able to modify the car anyway they see fit to make apprehension of the car as easy and safe as possible.

    IF the police tampered with the suspect’s car, prior to him receiving the drugs in hopes that they could use that PC to stop his car later, then yeah, you got a good case of manufactured PC there.

    What’s the difference in this case versus any other police operated sting operation? The AUSA could also claim a privilege in court and still not reveal the CI to the defense.

  4. If details of how the PC was orchestrated become known to the accused, I would imagine the CI will be compromised, and less than useful for future operations, regardless of privilege claimed.

  5. Lazyguy,

    Thanks for the comment. You may be right — there might be no difference.

    If there is a difference, though, it might be that what the agents did is a violation of the hog rule. They deliberately circumvented law that is already very generous toward law enforcement.

    Christopher is right — the agents are trying to conceal the fact that there was an informant as well as his identity. Even if the court allowed the government to conceal the identify of the informant (which might not happen — the court could order the government to reveal the informant’s identity on pain of dismissal), the fact that there was a police agent involved in the commission of the crime opens new doors of reasonable doubt.

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