Undercover Interrogation

The admissibility rule of Miranda v. Arizona generally dictates that you give the standard warning and get a voluntary waiver before interrogating a suspect in custody. But not always.

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The admissibility rule of Miranda v. Arizona generally dictates that you give the standard warning and get a voluntary waiver before interrogating a suspect in custody. But not always.

One exception that has been in your investigative toolbox for 14 years is undercover questioning of a prisoner that occurs before the prisoner has been indicted or made his first court appearance on the case. This exception comes from a U.S. Supreme Court case called Illinois v. Perkins.

The Perkins Scenario

In 1984, Lloyd Perkins murdered Richard Stephenson in East St. Louis, Ill. The case was unsolved for two years, until a confidential informant who had done time with Perkins fingered him. Perkins was in jail in another county in an unrelated battery case. If officers had gone to the jail to try to interrogate Perkins about the murder, Miranda warnings would have been required since Perkins was “in custody.” (Mathis v. U.S.) Because the officers felt that Perkins would be unlikely to waive Miranda and give them a statement about the killing, they used another approach.

An officer who was unknown to Perkins posed as a fellow inmate, and he and the informant were placed into the same cell with Perkins. The informant vouched for the officer as a fellow killer and the three began talking about how to break out of the county jail. When the possibility of having to kill someone during the escape was discussed the officer asked Perkins if he had ever “done” anybody. Perkins then bragged about killing Stephenson and gave a lengthy description of the circumstances.

Charged with the murder, Perkins moved to suppress his statements on Miranda grounds because he had been questioned by a law enforcement agent while in custody without warnings and waiver. The state courts bought this argument and suppressed the statements, but the U.S. Supreme Court reversed.

Miranda Rationale Does Not Apply

Pointing out that the purpose of Miranda procedures is to neutralize the compulsion felt by a suspect in custody facing obvious police interrogation, the court said that an undercover situation does not present this same risk of coercion, since the inmate is unaware he is talking to the police:

“The use of undercover agents is a recognized law enforcement technique, often employed in the prison context to detect violence against correctional officials or inmates, as well as for the purposes served here. The interests protected by Miranda are not implicated in these cases, and the warnings are not required to safeguard the rights of inmates who make voluntary statements to undercover agents.

“We hold that an undercover officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response.”

Applying the ruling of Perkins, other federal courts have also upheld the practice of using undercover agents to conduct unMirandized interrogation of inmates. In a federal case in Iowa, the U.S. Court of Appeals pointed out the obvious: If the undercover agent had to give the Miranda warning before conversations began, “the whole purpose of the undercover operation would be destroyed.” (U.S. v. Johnson) In a Wisconsin case, the Court of Appeals noted that, “Planting informants is not an unconstitutional method of collecting evidence for use in criminal trials.” (U.S. v. Kontny)

State courts, too, have applied the Perkins rule, e.g., People v. Williams (California), Norrid v. State (Texas), and Commonwealth v. Boggs (Pennsylvania). Some states refuse to follow the U.S. Supreme Court rule, citing state constitutional due process or self-incrimination grounds under which criminals may be given greater protections than under the federal constitution. See, e.g., Walls v. State (Florida). Before using the Perkins technique, it is advisable to check with a local prosecutor or legal advisor in your jurisdiction to be sure there are no limitations imposed as a matter of state law.


Remember that once a suspect has been indicted by the grand jury or has made his first court appearance on a case, his Sixth Amendment right to counsel attaches and, unless waived, precludes the use of undercover agents to elicit incriminating responses on that case (U.S. v. Henry). This will generally mean that the Perkins technique cannot be used on an indicted suspect, and in other cases should be used within the first day or two after arrest, before arraignment.

Also, as a concurring opinion in Perkins pointed out, if the prisoner has already been Mirandized and has invoked, this technique could violate the invocation. Therefore, if you contemplate using the Perkins strategy on a suspect because you believe he would invoke if warned, do not warn. Just put the suspect into a cell with your undercover officer or agent, and see what develops. And the procedure can also be used if the suspect previously waived Miranda but denied involvement in the crime.

Also, don’t forget about voluntariness. Separate and apart from Miranda and the Sixth Amendment, the due process clause forbids the use of actual coercion to produce a statement. Interrogators must avoid physical or psychological mistreatment of a prisoner, threats of adverse consequences, and coercive promises of more lenient treatment in exchange for a confession. Interrogation cannot be productively used against someone who has been deprived of sleep, food, water, or restroom access, or is subjected to other coercive practices.

Strategic Deception

Obviously, not everyone in jail is going to open up to some stranger on the next bunk. It may be necessary to use some ploy to motivate him to talk. In Perkins, it was the phony escape plan and the challenge that someone might have to do some killing that got Perkins to start talking about his crime. Any ruse that would not cause a false confession is acceptable, as the Perkins decision said:

“Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect’s misplaced trust in one he supposes to be a fellow prisoner. Ploys to mislead a prisoner into a false sense of security that do not rise to the level of compulsion to speak are not within Miranda’s concerns.”

For example, the undercover officer might be “getting released on bail soon,” and offer to take a message to the suspect’s confederates about how to dispose of evidence or weapons, or offer to retrieve and sell the suspect’s drugs or stolen property to raise bail money. In murder cases, it’s not uncommon to arrange a “hit” on the witnesses and bring back phony “proof” that they’re dead. Depending on the circumstances of the crime, devise a ploy that offers the best hope of motivating the suspect to trust the undercover officer and to confide details of the crime.

Also, it’s a good idea to tape the conversations if it can be done without safety risk and without violating local statutes. Neither the Fourth Amendment nor federal eavesdropping laws prohibit jailhouse recording, but some state statutes do. Again, this issue has to be confirmed with a local authority to determine guidelines for electronic surveillance.

Although the Perkins tactic will not always be needed, it is a legitimate investigative option that can sometimes be used in lieu of giving an immediate warning to a suspect and risking an invocation of silence or counsel.

Attorney Devallis Rutledge, a former police officer and prosecutor, defends officers and agencies at Manning & Marder,Kass, Ellrod, Ramirez.

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