Fri 05 Aug, 2022 Criminal Defense

Do Undercover Cops Need to Identify Themselves if Asked?

When police officers are working undercover, they are legally allowed to lie about anything, including their identity. So, if a person asks an undercover police officer whether he is a cop, he or she can lie and say they are not a cop. 

Although some people think that they can legally protect themselves by asking—and getting the answer to—the question of whether a person is a cop, the true answer cannot be known by simply asking and getting an answer. For instance, if a person is selling illegal drugs to another person and first asks whether that person is a cop, the seller cannot rely on the person’s answer to be genuine—an undercover cop can and will tell you that he is not a cop. 

If police officers were not allowed to lie about their identity, then they would not be able to successfully conduct undercover operations. Oftentimes, undercover operations are the only way for the police and prosecution to build a case against a person since some people may behave differently if they believe that police are not around.

Since society is interested in reducing criminal activity and wants law enforcement to have the tools needed to detect and prevent such activity, courts do not take issue with undercover officers lying about their identity, as those lies are used to detect and stop crime.

If you are arrested after taking part in conduct that occurred after an undercover police officer lied to you, the fact that he or she lied cannot be used as a successful defense. However, if the police induced or encouraged you to do something that you would not normally do, then you may have a successful entrapment defense available. An experienced criminal defense lawyer in New York City can evaluate your case to determine the best strategy for your case.

When Do Police Officers Operate Undercover?

In New York City, the NYPD has different units that operate undercover for different purposes.

Narcotics Units

The NYPD has narcotic units throughout the city, and those units use undercover officers to conduct undercover operations. Their undercover activity often includes “buy and bust” operations that involve a team of officers who have the mission to arrest people on the street for selling drugs—typically heroin or crack cocaine.

With a “buy and bust” operation, an unmarked NYPD van goes to a location where drug selling activity is suspected. Inside the van are officers who are ready to make an arrest if a drug transaction occurs. The status of the operation is monitored by an officer in the van who communicates with undercover officers on the ground. Outside of the van are at least two undercover officers. One officer will act as a buyer, and the other officer is known as the “ghost.” 

The officer acting as a buyer will interact with a seller. If the officer finds someone who will sell drugs, the officer will give money to the seller. The money given is always pre-recorded buy money, meaning that the police documented the serial numbers of the cash at the beginning of the operation. When a defendant is arrested later and has the pre-recorded buy money in his possession, the fact that he is in possession of that money is strong evidence that can be used by the prosecution to show that the defendant was the seller of the drugs.

With more sophisticated street-level sales, oftentimes the seller will receive money from the buyer and then disappear to go into a building somewhere on the block. Inside of the building—and out of public view—the person hands off the money to someone else and picks up the drugs to provide to the seller. This prevents the seller from having the pre-recorded buy money in his possession at the completion of the transaction, and it also prevents the seller from having other drugs to sell in his possession if he is arrested.

When the seller returns to the undercover buyer to hand off the drugs, the undercover buyer then makes a discreet signal to the “ghost” that a drug sale occurred. The “ghost” is an undercover officer who is within sight of the drug transaction. The ghost is there to help ensure the safety of the undercover officer who is acting as the buyer, and the ghost can also notify the rest of the buy and bust team if a sale has occurred so that other officers can make an arrest. The “ghost” also provides a description of the seller so that the arresting officers can know who to stop and arrest.

In addition to “buy and bust” operations, NYPD narcotics units perform undercover operations that involve large-scale drug traffickers. These investigations often involve coordination with the Drug Enforcement Agency (DEA) of the federal government. With these operations, undercover officers are in “deep cover” and assume a false identity for a much longer period of time, which allows them to develop relationships with drug traffickers in an effort to build a case against them.

In all these undercover situations, if any of the undercover officers are asked whether they are a cop, they would say “no,” and their lie is not a fact that could be used as a successful defense. However, many defenses exist with drug cases, and the police can—and do—arrest innocent people, whether the police know it or not. If you are charged with a crime involving an undercover officer, a skilled New York City criminal defense attorney can assess your case to determine the best path forward.

Anti-Crime Units

In 2020, the NYPD disbanded their undercover anti-crime units—and for good reason. The NYPD anti-crime units were notorious for disproportionately harassing communities of color, and many incidents that involved the death of innocent civilians occurred at the hands of plain-clothes police officers. In the wake of the national conversation about police brutality after the brutal death of George Floyd, the NYPD faced significant backlash over their anti-crime units. Consequently, the NYPD police commissioner shut down the units in June 2020.

In 2022, Mayor Eric Adams—a former NYPD officer—decided to reinstate the plain-clothes anti-crime units. Citing an increase in gun violence, Adams declared that the purpose of having undercover anti-crime unit officers is to stop gun violence. However, early data already suggest that most arrests made by undercover officers in the anti-crime unit are not for gun offenses. In fact, most arrests have been for non-violent offenses. Although it remains to be seen whether the plain-clothes anti-crime units will remain, until they are disbanded again, undercover officers will be patrolling the streets of New York City. 

Undercover Cops Involved with Your Arrest? Speak to a Knowledgeable Criminal Defense Attorney Today

Although undercover cops can legally lie about their identity when operating undercover, you may still have many successful defenses if you have been arrested for an incident that involves undercover officers. An experienced criminal defense lawyer can assess your case to determine all available defenses. Contact Cody at his New York City office today to schedule a free consultation and develop a strategic defense.