The first issue presented here is whether the undercover police operation constituted entrapment. Law enforcement officers generally have the freedom to conduct undercover operations, and even to pose as criminals themselves if necessary. Many undercover operations involve police officers committing acts that would be crimes themselves if committed by an ordinary person. However, the police cannot provoke or coerce a defendant into committing a criminal act. Defendants can claim entrapment if they can show that undercover officer coerced them into committing a crime that they normally would not have committed.
Here, there is no evidence of entrapment. The defendant initiated all of the alleged criminal acts, not the undercover police officer. Bob asked the officer to help him murder Carl. Bob showed Art the bomb that he had started making, which he planned to use to murder Carl with. Bob took the bomb to Carl’s house, and attached it to Carl’s automobile. There is no reason to believe that he would not have committed these acts without the undercover officer.
Bob may claim that Art helped him make the bomb, and that this constitutes entrapment. However, undercover officers are not prohibited from playing along with a suspect to gather more evidence. Here, Art helped make the bomb so he could see if Bob intended to carry out his attempted murder plot. Obviously the officer would not have been allowed to make an actual bomb, but here he secretly rigged the bomb not to explode. After Bob took the bomb to Carl’s house and placed it on Carl’s automobile, the police had all the evidence they needed that Bob was attempting to murder Carl. Therefore, this undercover operation does not constitute entrapment.
The second issue presented here is whether the automobile searches violate the 4th Amendment’s ban on “unreasonable searches and seizures.” The searches were incident to a lawful arrest, since Bob had been arrested before police conducted the searches. Police do not usually need a warrant to search cars if there is probable cause. Probable cause requires evidence of a crime. Since cars can be quickly driven away, it is not realistic to expect police to obtain a warrant.
This case is a little different from typical automobile cases, since both cars here were searched by police while parked on the street. However, the police clearly had probable cause to search Carl’s car. Bob had placed a (disabled) bomb on Carl’s car, so Carl’s automobile was effectively a crime scene. Police had evidence of criminal activity in Carl’s car.
The search of Bob’s automobile is a little more difficult to justify. Bob had already been arrested, so there was no danger of him escaping. There was also no danger of him destroying potential evidence in his car. Since he was in custody, police could have obtained a warrant without endangering their case. However, the test is not if police could have obtained a warrant, but if they had probable cause to search the car without a warrant. Here, the police observed Bob strapping a bomb to Carl’s car. They had reason to believe that Bob’s car may have contained evidence of criminal activity, such as a sales receipt for the explosives. In addition, Bob’s car was merely parked across the street from where he was arrested, so it was within the area of the crime scene. Thus, the search of Bob’s car does not violate the 4th Amendment.
The final two issues presented here are whether the recorded jailhouse conversation violates Bob’s 5th Amendment right against self-incrimination or his 6th Amendment right to counsel. Whether his 5th Amendment rights were violated depends on if the conversation is considered an interrogation by the police. Statements made by a defendant to an undercover officer placed in their jail cell generally are not considered to come from an interrogation. This is for obvious reasons, since an undercover officer cannot give a Miranda warning to a suspect without blowing their own cover.
The facts in this case follow the same principle. Here, Bob believed that Art was an accomplice in his crime. He had natural reasons to discuss details of the crime with Art. This was the purpose of the undercover operation. At the same time, Bob would not have felt compelled to speak in the same way he might have in a formal interrogation. Therefore, his 5th Amendment rights were not violated.
However, after charges have been filed against a defendant the police cannot use undercover agents to obtain confessions outside the presence of counsel. A defendant’s 6th Amendment right to counsel begins after an indictment. After it begins, the police cannot try to obtain incriminating statements from a defendant unless the defendant has waived his right to counsel. Here, Bob has been indicted, and there is no indication that he has waived his right to counsel. The undercover officer engaged in conversation with Bob specifically to elicit damaging statements. There is no indication that Art simply listened as Bob made incriminating statements. As a result, the jailhouse conversation will likely be inadmissible under the 6th Amendment’s right to counsel.