How Far Will an Undercover Go to Sell You on Their Story?

Posted by: Allen Hoffmann, JD

May 11, 2015

Following on from the framework of ‘Mr. Big’ and the Canadian Technique, and the fairly recent decision in Hart, we can review the case literature which helps us to build a better understanding of just how the police go about enacting their story time adventures and selling their shit to their target. The cases listed below are aimed specifically at making murder cases, not dope cases – but that doesn’t mean that a component of one of these scenarios or cases couldn’t be used in a dope case. This article simply looks at just how sneaky the cops can be when they want to be.

Keep in mind, first, that the types of scenarios the cops can involve you with are varied and complex. The litany of different things someone being worked by an undercover may think they are involved in is conveniently set out in a number of Australian court cases.

What UC police scenarios have involved previously, according to court records.

For starters, look at R v Karakas (Ruling No 1) [2009] VSC 480, at paragraph 19; “In this case eighteen separate scenarios were played out which involved the accused and which led him to believe that he was participating in offences such as blackmail, illegal payments of large sum of cash, dealing in firearms and cigarettes, money laundering, payments to corrupt police and judges, burglary and the importation by plane of a large amount of hashish.” Sounds like the cops are inviting you into quite a world of mayhem, doesn’t it? Oh no, that’s not it, there’s still more.

In Lauchlan v The State of Western Australia [2008] WASCA 227 at paragraph 17, the list provided includes “the collection of moneys from protection rackets and prostitutes, the handling of firearms, including automatic weapons and submachine guns for delivery to outlaw motorcycle gangs, the reconnaissance of suitable landing grounds for an aircraft involved in drug importation, the collection of ‘diamonds’ from a jewel robbery, the preparation of parcels of drugs for distribution into a supply chain, and the collection of moneys from another “gang” member who had supposedly double-crossed the gang and is being forced to repay money owed.”

Interesting stuff, huh? Complex, intricate scenarios, well thought out and prepared. “Naw man, I could never be tricked by no cops” you may be saying to yourself – you’re quite sure you’ve got an array of solid methods for knowing who an undercover cop is. But do you really? Here are some more aspects that the cases reveal which are part of rapport development and intended to ingratiate themselves with you, and likewise.

1. The cops may pay you.

Following on from the recent decision in R. v. Hart, 2014 SCC 52 Hart was, according to the court, unemployed. At paragraph 38 of Hart, – “he stayed in hotels and dined frequently in some of the country’s finest restaurants.  In total, the respondent was paid $15,720 for his work.  The police also paid an unknown amount for the respondent’s hotels, room service, dinners, trips to the casino, and transportation.” The cops gave him $15,000 CAN for the criminal work he did for the fictitious criminal organization and also paid for his living expenses. Not a bad lever to get closer to someone, huh?

2. An undercover operation won’t just be overnight – it could go on for months and involve many scenarios.

At paragraph 38 of Hart – “During the course of the Mr. Big operation, the respondent participated in 63 “scenarios” with the undercover officers, the operation saw him travel to Halifax, Montreal, Ottawa, Toronto and Vancouver.” As we’ve discussed before, looking at manpower and resources, this is an expensive proposition as re man hours. But when it comes to making serious cases, this is what happens.

3. The cops can work VERY hard to buddy up to you.

A very helpful description of exactly what takes place during initial contact is provided in the State of Western Australia v Lauchlan and Anor [2005] WASC 266 at paragraph 35;“ An undercover police officer known as “John” made contact with Darren Lauchlan at a hotel in Queenstown and, after striking up an initial acquaintance, explained that he was looking for his ex wife “Sue” whom he believed to be living and working in the Queenstown area. He asked for the assistance of Lauchlan in telling him of hotels and clubs in the area where he might make enquiries about her and asked if Lauchlan would accompany him on the search. The meeting was successful in establishing a rapport between “John” and Lauchlan and together they traveled to Zeehan to search for “Sue”. “John” gave a total of $100 in cash to Lachlan and Hammond to cover certain expenses and for their assistance.” – Seems pretty innocuous, right? The progression from here into the ‘criminal gang’ and how the 16 scenarios in this case, leading up to the targets arrest, are played out in the subsequent paragraphs (ending at paragraph 55). According to the court in Hart, he was “socially isolated — he rarely left home and when he did, he was in the company of his wife”. That they got him not just to talk about the murder of his kids, but to actually go and ACT IT OUT, gives an indication as to how far into his life they had gotten.

4. Not only might the cops offer you a place to live…

Again referring to The State of Western Australia v Lauchlan and Anor [2005] WASC 266, the target of the operation had moved from the jurisdiction where a murder took place to another, where he was then targeted by police from yet another jurisdiction (at the request of police where the murder took place), who got him to move to that police agency’s jurisdiction, and then, at paragraph 21, put the target and his girlfriend in an apartment to live in, fitted with listening devices.

5 the cops may even have you LIVE WITH THEM…

In R v Marks [2004] VSC 476, at paragraph 37 – “at the commencement of the exercise, the accused was offered, and accepted, free accommodation in [an undercover cop’s] flat. His only obligation was to inform [the undercover cop] of mail deliveries.” Once again, a good way of getting you close to them

6. and you might even MEET THEM WHILST IN CUSTODY.

I know people professionally who don’t trust anyone with whom they haven’t been in jail. Could LE insert an undercover into a prison? Maybe. We’ll take a look at R v Favata [2004] VSC 7  to finish off, commencing at paragraph 7; “On 18 August, the search warrant organised by [a cop] was executed. Other goods that had been the subject of the burglary that [aforesaid cop] was investigating were located. The accused was interviewed. He was charged with burglary. He was transferred to the cells at the Mill Park Police Station. Before he was placed in a cell there, ZZ [an undercover] went into that cell.

From the time that he entered the cell and thereafter in the presence of the accused, ZZ played his role as a member of a criminal group. He talked in appropriate terms to the accused. The conversation between the two in the police station cell was not recorded. There was discussion about the desirability of the two men meeting up again. There was an exchange of telephone numbers. ZZ left the cell. The accused was later granted bail. Over the next few days, there was telephone contact as to arranging a further meeting.” Guess how that all ended up for him?

Conclusion

How are you feeling about your capacity to pick out a cop now? Someone you live with? Someone with whom you were in county? Someone you thought you were doing drug deals with, or paying bribes? Are these the only tactics that undercover cops use? Not by an incredibly long shot. But talking about tactics and techniques used by LE without being able to back them up with hard evidence of their use does no one any good, and for the most part, complex tactics and techniques used by police are often obscured during the court process. The nature of the Canadian Technique, that its shaping and inducements cannot be readily concealed, is integral to the investigative tactic, and as such, its machinations have come out in case after case in multiple jurisdictions. Are you likely to come up against such a concerted effort? No, but it should be food for thought and discussion about how far is too far, and what you regard as being sufficient proof that someone is who they say they are – or, in actual fact, aren’t.

“Mr. Big” – A look at how “top tier” undercover investigations can work

When paranoia gets the better of some people, they can think there might be a helicopter following them, or perhaps that there’s an undercover cop in their midst. We’ve all seen the movies where LE goes deep cover – “Point Break”, “Donnie Brasco”, “The Departed”, “Miami Vice”, and perhaps we’re conditioned that such things are frequent or common place in policing. As has been discussed in previous pieces, police resources are finite, and the need to allocate and reallocate resources is an exercise which is an ongoing one. Despite this, on the criminal calendar, murder is regarded as the worst offence there is, and when LE believes it is on to a viable suspect, all the stops will be pulled out and things will get done which otherwise wouldn’t get done, including, in some jurisdictions, some very creative undercover work – sneaky, sneaky shit where the cops get you to admit to some serious dirt you did. There’s a particular method to this that we’ll be looking at in-depth, which uses not one, but a whole cast of undercover cops.

One of the most beloved of the tools in the undercover cop toolkit, which has been used by police in Canada, England (a slightly modified version which targeted stolen goods, not murders), New Zealand, and Australia, is known as “Mr. Big” in Canada, or the “Canadian Technique” elsewhere. The Mounties came up with it back in the 1990s, the Australian picked it up in 1999, the New Zealanders first saw it (as far as the court records go) in 2006 and its still being used today. Such was the sensitivity of the technique not long after its conception, the Canadian authorities attempted (and failed) to have details of it suppressed in R v Mentuck (2000) 143 Man R (2d) 275, 279, as did the Australians when they were using it later, in Application by Chief Commissioner of Police (Vic) for leave to appeal [2004] VSCA 3.

R. v. Hart– now the leading case.

In the Supreme Court of Canada, the case of R. v. Hart, 2014 SCC 52 gives a look at just how far the cops can and will go in some jurisdictions to make a case. Nelson Hart was suspected of drowning his twin daughters – a particularly heinous crime, and the sort of thing which arouses utter contempt in the hearts of the wider community generally, and LE specifically. He was targeted using a Canadian Technique investigation, and confessed his sins to an undercover cop. However, it was beaten, in that instance, on appeal.

Its an entertaining, controversial, and to some, a deeply unsettling, pathway to an unwitting confession; after a chance meeting or two between the target and police officers or those assisting them, who will then introduce the target to others, from Hart – “A Mr. Big operation begins with undercover officers luring their suspect into a fictitious criminal organization of their own making.  Over the next several weeks or months, the suspect is befriended by the undercover officers.  He is shown that working with the organization provides a pathway to financial rewards and close friendships.  There is only one catch.  The crime boss — known colloquially as “Mr. Big” — must approve the suspect’s membership in the criminal organization.  Built on trust, through elaborate scenarios during which the target believes they’re committing offences, and developing their belief that they will need to confess the truth of whatever the relevant offence was (typically murder) to a ‘corrupt cop’ who is on the organization’s payroll. Think that because someone commits a crime with you, you can trust them? How do you know that what just happened was a crime at all? Again, from Hart – “The operation culminates with an interview-like meeting between the suspect and Mr. Big.  During the interview, Mr. Big brings up the crime the police are investigating and questions the suspect about it.  Denials of guilt are dismissed, and Mr. Big presses the suspect for a confession.”

Pushing for a result

In some instances, the police will add some extra pressure by, for example, contacting the target out of nowhere, and asking them to get in touch. Don’t for a minute think that such tactics are not part of a more concerted approach to getting a confession; on such a tactic’s use in another Australian Canadian Technique case, R v Tofilau [2003] VSC 188. At paragraph 11; “ It was intended by the undercover operatives that [use of trigger tactic] would trigger further statements by the accused about the death of the deceased. The notice acted as a trigger in three ways. First, it demonstrated the investigation was active. Second, it indicated the accused was a suspect and the police might have evidence against him. Third, it demonstrated the accused had been less than frank in previous discussions with gang members including operative P whom he had befriended.”

More from Hart – “As Mr. Big’s questioning continues, it becomes clear to the suspect that by confessing to the crime, the big prize — acceptance into the organization — awaits.  If the suspect does confess, the fiction soon unravels and the suspect is arrested and charged.”

 How it ends

The confession is recorded, details which no one else but the perpetrator could know are elicited, and blam – you’ve made a murder case. Regardless of what you may have heard from you cousin’s roommate who took half a year of pre-law, entrapment is very much allowed in common law jurisdictions, and even if this kind of game were run in the US, the objective may be intelligence development allowing for the parallel development of external evidence. It’s a game of manipulation and careful shaping of a suspect’s conduct, but time and again, courts in the jurisdictions where its been employed have come back to the inescapable reality that the perp’s confession was not obtained through duress, and usually gives sufficient details (or indicates the location of further evidence not already detected) to crush any hope of beating the charge.

The costs involved in an operation such as one of these murder cases are substantial (the investigation into Hart cost, according to the police, in excess of $400k CAN). They simply can’t be used for everyone – only people who they are pretty sure are guilty, and guilty of some serious dirt. But an investigation which doesn’t span multiple cities and involve 60 or more separate scenarios over 4 months; for example, despite also being a murder, the case in R v Marks [2004] VSC 476 in Australia involved 16 scenarios and went for all of one month before the evidence needed was obtained. A short term operation with fewer people involved may be just the ticket for other suspected perpetrators of other crimes.

An interesting aside – in the jurisdiction of Victoria, Australia, where the majority of these scenario cases are made owing to the Victoria Police’s experience in using the technique, police were still using the same name, if not the same actual man, for the gang boss in 2012 as they were in cases being made back in 2002. If you’re in Australia and you ever thought you knew a criminal gang boss named “Gary Butcher”, think long and hard about calling him again. (Sidebar – Same name/guy for 10 years? Talk about finite resources…)

Using Mr. Big cases to categorize UC conduct

You can read more about the ‘Mr. Big’ method on Wikipedia if you want, and for the more legally inclined, you can even read this article that an officer tasked with Target Development at the Australian Federal Police so kindly put together about the legal ramifications in the Aussie context, seeing as most readers are not likely to be targeted for a long term cold case murder investigation any time in the near future. The purpose is to provide the framework in which we can learn what the method teaches us about how far undercover cops can and will go in pretending to be criminals or get into and stay in a target’s life from a number of cases where the Mr. Big matrix was employed.

Updated: 2015-05-11