Courts & Crime

As in Levy case, police can use trickery — up to a point

WASHINGTON — Detectives repeatedly tried to trick the man they believe killed former Modesto resident Chandra Levy. It sounds underhanded, but that's the crime-fighting biz.

Lies, false documents and deceptions are tools of the trade for law enforcement investigators. Though there are limits to their use, courts have often blessed them. That's good news for investigators in the Levy case, now facing bitter complaints from defense attorneys.

"(The Constitution) does not forbid mere strategic deception," Supreme Court Justice Anthony Kennedy concluded in a 1990 case, adding that "ploys to mislead a suspect or lull him into a false sense of security ... are not within (constitutional) concerns."

The deceptions practiced in the Levy investigation include falsely telling accused murderer Ingmar Guandique that DNA evidence linked him to the 2001 killing. During 2004 and 2005, prosecutors recently revealed, investigators also pretended to be a pen pal named "Maria Lopez" in hopes that Guandique would write self-incriminating letters.

"This (shows) the lengths to which they've gone to prosecute Mr. Guandique," defense attorney Santha Sonenberg declared Thursday, calling the deception "illegal" and "unethical."

Assistant U.S. Attorney Fernando Campoamor-Sanchez retorted that while defense attorneys "may not like" the deceptive correspondence, "that doesn't mean it's improper and unethical."

While the false pen-pal ruse sounds unusual, investigators nationwide have deployed similarly creative deceptions in their efforts to lure confessions and solve crimes. Sometimes, judges must sort out when police have gone too far.

Detectives in Richmond, Calif., for instance, told a mentally unstable murder suspect named Robert Lee Smith in 1991 that a fictitious "Neutron Proton Negligence Intelligence Test" proved he had recently fired a gun. The purported test involved soapy water that automatically turned color when treated with chemicals.

"It does not appear that the tactic was so coercive that it tended to produce a statement that was involuntary or unreliable," a California appellate court ruled in 2007.

Smith currently awaits execution on San Quentin's death row.

Smith, like Guandique, is a poorly educated man; the kind, potentially, that investigators might think is susceptible to having the wool pulled over his eyes. Unlike Smith, though, Guandique didn't fall for the police ploys — at least, so far as is known.

If evidence arises that Guandique did fall for some police tricks, prosecutors could summon the 1990 Supreme Court case called Illinois v. Perkins involving a prisoner's confession to an undercover agent posing as a sympathetic cellmate.

"You ever do anyone?" the undercover agent asked.

"Yeah, once in East St. Louis, in a rich white neighborhood," the suspect, Lloyd Perkins, replied, court records show.

"How did it go down?" the undercover agent asked.

"I walked up to this guy's house with a sawed-off (shotgun) under my raincoat," Perkins replied.

The incriminating conversation with a man he considered a fellow prisoner helped convict Perkins of the slaying.

Similarly, in a 1969 Oregon murder case called Frazier v. Cupp, the Supreme Court concluded that prosecutors could use the confession of a man who had been tricked into believing that an accomplice had already confessed. The court determined that while the deception was "relevant," it was not "sufficient" to legally undermine the confession.

False documents can be more complicated.

In a 1989 case, investigators showed a false lab and police report to a 19-year-old Florida man suspected of sexually assaulting and killing his 5-year-old niece. The man confessed, but a Florida appellate court later threw this out while voicing "spontaneous distaste" for use of falsified documents.

On the other hand, a California appellate court last year upheld the first-degree murder conviction of a Sacramento man named Darious Antoine Mays despite police trickery. Detectives had pretended to hook the 17-year-old Mays up to a polygraph, and then told him he had failed the fake test.

Mays then admitted he was present at the shooting.

"Police officers," the California appellate court concluded, "are at liberty to utilize deceptive stratagems to trick a guilty person into confessing."

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