Unauthorized Immunity Agreements: Honesty Is the Best Policy
| Publication year | 2013 |
| Pages | 25 |
November, 2013
Joshua L. Marrone.
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Introduction
The criminal justice system is often a game of “us vs. them.”[1] Understandably, it is difficult to avoid falling into an ends-justifies-the-means mentality. Confidential informants are crucial to the investigation and apprehension of the most noteworthy criminals among us. We need informants. And because confidential informants are necessary, it is important to ensure that the procedures that law enforcement officers use to recruit them are honest. Confidential informants and law enforcement officers may not like each other, but they often must work together in the interest of a greater good. For that to continue, trust is necessary.[2]
In cases of unauthorized immunity offers, three important considerations are at stake: a defendant’s right to a fair trial, the need for law enforcement to work within its authority, and the protection of the public from those that would violate the law. And importantly, the courts are tasked with ensuring that the government plays by the rules regardless of whether citizens do.[3] Law enforcement officers know, or should know, that they do not have the authority to grant anyone immunity from prosecution.[4] On that point the law is clear; only prosecutors have the authority to grant immunity from prosecution.[5] Occasionally, however, law enforcement officers neglect to make that distinction clear to the suspects they encounter. Sometimes, the prospect of recruiting an informant to catch a “bigger fish” leads an officer to make an offer of immunity that a soon-to-be defendant cannot refuse. So what happens when informants do their part of the bargain but the government fails to perform?
Courts across the United States have gravitated toward two analytical frameworks to handle cases involving broken, albeit unauthorized, immunity agreements. First, courts rely on contract theories such as apparent authority, ratification, or detrimental reliance to analyze the cases. But these contract theories aren’t suitable for resolving criminal law issues—the justifications for contract law and criminal law are different. Second, courts sometimes apply the concept of “fundamental fairness” to dismiss cases or enforce otherwise unauthorized agreements. Case law, however, does not make clear when courts should apply “fundamental fairness, ” other than when a court feels like applying it. Kansas courts have existing tools more suited to handle the situation—motions in limine and suppression. And suppression is justified for two distinct reasons: (1) to exclude unreliable evidence and (2) to deter law enforcement officers from taking inappropriate actions.[6] Either of these justifications, depending on the facts of a case, may make suppression appropriate.
Prosecutors, Let Law Enforcement Officers Know They Shouldn’t Make Promises They Have No Authority to Keep
Sometimes dealing with an unauthorized promise of immunity is relatively simple, and Kansas courts resolve the issue under the first of the suppression justifications—excluding unreliable evidence. In fact, the Kansas Court of Appeals recently addressed the problem in State v. Ralston.[7] Ralston got a call requesting that he bring some marijuana to a hotel room. Unfortunately for Ralston, he made the delivery to a room full of law enforcement officers.[8] After officers arrested him and read him his rights under Miranda, an officer told Ralston that if he helped them out, they would help him out. Ralston, eager to please, admitted that he brought marijuana to the hotel room to sell it. He also provided officers with names of other drug dealers and attempted to get another dealer to bring a larger quantity of marijuana to the scene. But Ralston failed to get any bigger fish to bite. And a while later, prosecutors charged Ralston for his drug crimes.[9]
Ralston filed a motion to suppress the incriminating statements—which included a confession— that he made after the vague offer of immunity. In addition, he filed a motion to dismiss that depended on enforcement of the alleged immunity agreement.[10] Although the district court suppressed the statements, it did not grant his motion to dismiss. Despite suppression of the incriminating statements, Ralston was convicted for possession.[11] Ralston appealed, alleging that the district court should have enforced the agreement and dismissed the case.[12]
The Court of Appeals made clear the law in Kansas—law enforcement officers do not have the authority to grant immunity. So they cannot, by themselves, make binding promises to a suspect.[13] Yet the court did believe that Ralston suffered a wrong. The promise coerced Ralston into making incriminating statements he otherwise may not have made, which in turn created unreliable evidence. Naturally, suppressing the incriminating statements solved that problem; enforcing the agreement and dismissing the case would have been overkill.[14]
Sometimes the facts of a particular case are particularly egregious such that suppression of coerced statements isn't enough. Sometimes a caught criminal bets more than a confession on (1) the reasonable belief that law enforcement officers have the authority to make promises of immunity, and (2) the belief that the officers will keep that promise. Consider the following hypothetical:
Billy is driving down the street. Officers are watching him because Billy sold an undercover agent a bit of marijuana in the not too distant past. Not paying attention, Billy fails to stop at a stop sign, so the officers go ahead and pull him over. An officer tells Billy that they are aware of his illicit business and inform him that he had, in fact, sold some marijuana to the officer currently looking at him through the passenger window. Despite Billy’s memory loss (probably drug induced), [15] he remembers that particular sale. The officers do not arrest Billy or read him Miranda—they had been planning the whole time to negotiate a deal.
Billy’s options here would make Hobson proud.[16] “Negotiation” is probably not the best term to describe the situation.[17] Billy knows he has been caught; he has no plausible deniability. Billy has no lawyer. No one has informed Billy of his rights. Billy does not know the punishment he will face or where he will be spending the night. The only thing Billy knows is that his life seemed a whole lot better a half an hour earlier. And in this moment of adrenaline, panic, and disbelief, he gets an offer he can’t refuse. The officers say they can make this all go away. All Billy has to do is help officers catch his supplier, who they are really after anyway.
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Law enforcement officers tell Billy to call them later and they let Billy go home, as promised. Faithful Billy calls the next day and a law enforcement officer tells him to contact his supplier, Sally, to set up a supply purchase. Billy sets up the deal and notifies officers of the details. To document the deal, officers have Billy come down to the station and they wire him with a device to record the transaction. Billy complies with the request. He makes the purchase, officers make the arrest, and later Billy assists prosecutors by testifying in Sally’s trial.
Billy never contacts law enforcement again after making the controlled buy from Sally because a couple of Sally’s associates threaten Billy and his family. Officers do not feel like Billy did enough. So, not hearing from Billy, law enforcement officers send his file over to the prosecutor’s office. The prosecutor in Sally’s case had since retired, and the newly elected prosecutor files a complaint against Billy for the original charges. Shortly thereafter, Billy files a motion to dismiss in which he begs the court to enforce his alleged deal.
Considering the law in Kansas, the district court does not have many options. Only the prosecutor has the authority to enter into immunity agreements—not law enforcement officers.[18] Immunity agreements are essentially contracts between a citizen and an authorized representative of the government.[19] Without proper authority, an individual cannot enter a contract.[20] As such, enforcing any deal between a law enforcement officer and a confidential informant is not an easily available remedy.
Yet suppression as the court used it in Ralston does not sufficiently cure the ill effects of Billy’s detrimental reliance on the officer’s offer. Officers caught Billy; they had plenty of evidence against him and weren’t looking for a confession when they confronted him. They wanted something more from Billy, and Billy put his and his family’s lives in real danger when he became an informant, as is the nature of the bargain. Regardless of the fact that Billy broke the law, considering the risks he took, it seems unfair for the state to completely disregard the agreement.
Importantly, this entire situation is best dealt with by prevention. In any immunity discussion, law enforcement officers should tell suspects the truth—make sure a suspect’s reliance on their proposition is not reasonable. In United States v. Wilson, federal agents picked up Wilson in a large scale ecstasy conspiracy.[21] Wilson agreed to help the agents in their investigation after they hinted at possible immunity.[22] Despite Wilson’s efforts to obtain a promise of immunity, the agents consistently told Wilson that only prosecutors had the authority to grant immunity.[23] Wilson could not reasonably rely on any suggestions of immunity because he knew he was not speaking with the people with the authority to grant it to him.[24] Even so, the prospect of immunity was enticing enough for Wilson to help.[25] So prosecutors should inform law enforcement officers to be up front about their lack of authority to grant immunity.[26] Honesty really is the...
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