Selling drugs, sex, or stolen property is easy when the people you’re selling it to pay promptly and leave when asked. It can be a lot more difficult when your potential customers want to arrest you. But you know better than to sell to police officers, so you do the smart thing and ask, “are you a cop?” If they say yes, don’t sell. If they say no, it must be entrapment, because you never would have sold them anything if you knew they were a cop.
The continued existence of undercover sting operations should suggest that the police can’t be defeated merely by asking if they are police. Officers do have moments in their jobs where they cannot lie — speaking to a judge in court would be a prime example — but they are absolutely permitted to withhold facts, be deceitful, and even tell outright lies in the course of investigation or interrogation.
The US Supreme Court recognizes an officer’s ability to lie while questioning a subject. In response to police falsely telling a murder suspect that he had been implicated by a co-conspirator, the Court wrote: “The fact that the police misrepresented the statements that Rawls had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible.”1
State courts have been more specific, such as the Michigan Supreme Court which ruled: “An official may employ deceptive methods to obtain evidence of a crime as long as the activity does not result in the manufacturing of criminal behavior.”2
What constitutes entrapment varies by state, but the most relevant factor is whether the police induced you to commit a crime.3 Although they cannot order you to break the law, officers can pose as willing buyers and let you break the law on your own, and can sometimes even help you do it.
”For all the foregoing reasons we hold that the proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense? […] Official conduct that does no more than offer that opportunity to the suspect — for example, a decoy program — is therefore permissible.” People v. Barraza, 23 Cal.3d 675, 689 (1979).