Journal of Criminal Law and Criminology Volume 61 | Issue 2 Article 5 1970 Police Infiltration of Dissident Groups Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Police Infiltration of Dissident Groups, 61 J. Crim. L. Criminology & Police Sci. 181 (1970) This Comment is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE JOURNAL OF CRINAL LAW, CRIMINOLOGY AND POLICE SCIENCE Vol. 61, No. 2 Copyright @ 1970 by Northwestern University School of Law Printed in U.S.A. COMMENTS POLICE INFILTRATION OF DISSIDENT GROUPS Next in importance to personal freedom is immun- agents who use disguise and deception to become ity from suspicions and jealous observation. Men accepted members of the group"--in an effort to may be without restraints upon their liberty; they obtain information regarding group motivations, may pass to and fro at their pleasure; but if their steps are tracked by spies and informers, their goals, and membership. Infiltration tactics become words noted down for crimination, their associates particularly useful to the police when group ranks watched as conspirators-who shall say that they are dosed to the general public and the identity of are free? Nothing is more revolting to Englishmen group members is not common knowledge. than the espionage which forms part of the admin- istrative system of continental despotisms. It haunts men like an evil genius, chills their gaiety, negligible control or concern over the source and back- ground of their membership. Such groups characteris- restrains their wit, casts a shadow upon their tically hold meetings open to the public and make no friendships, and blights their domestic hearth. effort to maintain the security of a limited audience at The freedom of a country may be measured by group meetings. A street comer rally might be classified its immunity from this baleful agency.' as an open group meeting. The second category of dissident groups consists of closed groups which attempt to control the make-up of Police infiltration may serve as a source of infor- their membership through screening. Closed group mation which is impossible to obtain in any other meetings are open to only a limited group of screened way. Such investigative tactics have been tradi- members. The scope of this comment is specifically limited to the constitutional issues arising from police tionally used by American law enforcement infiltration of dosed groups. agencies to obtain information about covert crimi- It is quite possible for a dosed group to exist within an open group. For example, the leadership of the nal activity such as drug traffic and organized Youth International Party anti-war demonstration at crime. In recent years, the scope of activity subject the Chicago Democratic Convention of 1968 was a to undercover surveillance has grown ever wider.2 dosed group existing within the open group structure of general anti-war dissent. Dissident factions of American society now engage 4It is assumed in this comment that the leadership in vocal and aggressive conduct demonstrating of law enforcement agencies decide which groups war- their dissent. In response, police authorities have rant undercover investigation. The factors which guide the outcome of this decision are critical when and if the adopted the practice of infiltrating dissident legality of such investigative police activity should groupss by employing planted informers--police later be questioned in court. See text at 193 infra. 5Infiltrators are often trained professionals, who 1 2 E. MAY, CONSTITUTIONAL HISTORY Or ENGLAND suffer replacement or discharge from their assignment 2752 (1863). if they fail to supply police with the information they O. W. WIISON, PoracE ADmNISTRATION 68 (1963). desire. Since the purpose of any police investigation For obvious reasons, it was difficult to obtain ac- should be to acquire accurate information, possible curate data from law enforcement agencies disclosing problems inherent in the use of infiltration tactics the frequency with which police subject dissident should be recognized. Specifically, because a secret groups to undercover surveillance. It was indicated, agent's success depends upon his ability to produce however, by reliable confidential sources that police information useful in attaining arrests or gaining in- infiltration is much more commonplace than the public sights into group activities, an agent may be tempted to generally assumes. fabricate needed information or to exaggerate facts. For the purposes of this comment, surveillance means Because of the nature of any infiltration assignment, the observation of group members and activities either there may be little opportunity for group members to from within or without the group. Infiltration of a challenge the veracity of an agent's allegations. Fur- closed dissident group is the type of surveillance to thermore, the flexibility of a group's programs and plans which this comment is particularly directed. may become an easy rationale for explaining away any 3 For purposes of this comment a dissident group is group activity inconsistent with the agent's predictions defined as a voluntary association which espouses a view and allegations. Because there is no absolute means by differing from an established view held or accepted by a which to measure the accuracy of an agent's accounts of majority within the community. otherwise secret group activity, what appears to the Dissident groups may be divided into two categories. police and public to be apparent reliability in past The first category consists of open groups-groups with investigations is dubious assurance of an agent's credi- COMMENT [Vol. 61 There are basically three groups of cases which The second group of cases apply the Fourth seem to relate to undercover infiltration of dosed Amendment to evidence obtained by means of dissident groups. The first group consists of cases electronic eavesdropping apparatus.9 These cases which limit the investigatory power of legislative indicate that evidence obtained in such a manner bodies6 and which suggest that surveillance or the without complying with the Fourth Amendment threat of surveillance imposes a chilling effect on represents the fruit of an unreasonable search and the exercise of free speech and assembly and there- seizure. fore represents an unconstitutional infringement of The third group of decisions assert the existence these First Amendment rightsY These cases restrict of a right to privacy protected by the Bill of Rights legislative investigation of groups and group mem- from governmental interferenceY' These cases hold bership to those situations where the government that a legitimate governmental objective to control can show a compelling state interest to justify its or prohibit activities subject to official regulation restrictive actions.' may not be achieved by means which sweep too broadly and thereby invade the area of freedoms bility in fact. D. Parr, SPiS AND INroRRs IN protected by the Bill of Rights. WiTNEss-Box 14 (London 1958). It is the purpose of this comment to consider the A particularly successful agent may even infiltrate a group's hierarchy and be called upon to participate in application of these cases to police infiltration and substantive decision making. The functioning of a planted informer on this level within the group gives rise to related questions regarding the defense of en- Justice Douglas hold that application of a balancing trapment. See e.g. Sherman v. United States, 356 U.S. test is inappropriate in cases when governmental action 369 (1958). For the purposes of this paper, however, directly infringes upon First Amendment rights. See consideration is restricted to circumstances where the e.g. Scales v. United States, 367 U.S. 203, 262, 271 infiltrator limits himself to mere surveillance and pas- (1961) (Douglas & Black, JJ., dissenting). Since sur- sive participation in group activity, thereby avoiding veillance or the threat of surveillance is best classified the role of group provocateur, and, consequently, the an indirect infringement on First Amendment rights, issue of entrapment is beyond the scope of this com- the balancing test is indeed appropriate to any deter- ment. Cowen, The Entrapment Defense in the Federal mination of the constitutionality of dissident group Courts and Some State Court Comparisons, 49 J. Cmm. surveillance. L.C. & P.S. 447 (1959). 9 Katz v. United States, 389 U.S. 347 (1967) (elec- r DeGregory v. Attorney General of New Hampshire, tronic eavesdropping held to constitute a violation of 383 U.S. 825 (1966) (state committee's investigation defendant's justifiable reliance on privacy of his sur- into defendant's prior affiliation with Communist Party roundings and therefore held to be an unreasonable held to be a violation of First Amendment right to search and seizure prohibited by the Fourth Amend- associational privacy because state showed no nexus ment); Silverman v. United States, 365 U.S. 505 between defendant's conduct and the compelling state (1961) (use of electronic device to listen to defendant's interest of self-preservation); Gibson v. Florida Leg. conversations within the privacy of his home without a Investigatory Comm., 372 U.S. 539 (1963) (legislative valid warrant held to constitute an unreasonable search investigation into group membership must yield to and seizure); Olmstead v. United States, 277 U.S. 438 First Amendment right to freedom of association where (1928) (Brandeis, J., dissenting) (use of evidence ob- no subversive or illegal activity is shown); Sweezy v. tained by wiretapping is in violation of the constitu- New Hampshire, 354 U.S. 234 (1957) (because state tional right to be let alone protected by the Fourth failed to show nexus between Progressive Party and a Amendment from governmental intrusion).