When Does Police Trickery Cross the Line?

          On March 4, 2008, I wrote an article on this blog entitled "Are the Police Allowed to Lie to Get You to Confess?"  I answered that question by saying, "[Y]es, the police are allowed to lie to you to get you to confess.  The law in Florida is that the use of tricks or factual misstatements by the police do not by themselves make a confession involuntary."

          Although that was a correct statement of the law, there are, nevertheless, interrogation techniques which the police are not allowed to use in obtaining evidence from a suspect. 

          For example, in the case of State of Florida v. McCord, a Detective Cahir focused his attention on a person named Foskie McCord as being a possible suspect in several armed robberies in Palm Beach County, Florida.  While McCord was in jail on unrelated charges, Cahir met with him, gave him Miranda warnings, and told McCord that he was a suspect in a rape case.  He also convinced McCord to provide him with a DNA sample by telling him that such evidence would prove whether or not he committed the rape.

          The problem with all of this was that there was no rape!  Cahir made that up in order to trick McCord into giving him a DNA sample so that he could compare that sample with a sample of DNA that was found at the scene of one of the robberies.  In addition, Cahir never mentioned to McCord that he was a suspect in any armed robberies.

          After McCord was charged in the robbery cases, he filed a motion to suppress the DNA evidence on the ground that his consent was involuntary and obtained in violation of his due process rights because Cahir used deceitful tactics to acquire it.

          The trial judge who head the motion agreed with McCord and suppressed the DNA evidence.  However, the State Attorney's Office appealed the judge's decision to Florida's Fourth District Court of Appeal--which also agreed with McCord and suppressed the DNA evidence!

          The Fourth District Court began its analysis by noting that in the case of Schneckloth v. Bustamonte the United States Supreme Court stated that a warrantless search does not violate the Fourth Amendment to the U.S. Constitution if the search is conducted pursuant to a freely and voluntarily-given consent.  However, said the Fourth District Court, such consent can be rendered involuntary if an interrogating officer makes misrepresentations regarding the nature of the investigation.  The Court also observed that insofar as confessions are concerned, "the use of police trickery may result in the exclusion of the confession depending upon the level of trickery employed." 

          According to the Fourth District, a "critical factor" in Mr. McCord's case was whether Cahir's deception undermined the voluntariness of McCord's consent.  In concluding that Cahir's deception did indeed undermine the voluntariness of McCord's consent, the appeals court found it particularly troubling that the detective made up the rape charge in order to obtain McCord's DNA.  The Court distinguished this case from those cases cited by the Attorney General's Office in which the police used trickery but did not make up stories about nonexistent crimes.