If you ask a cop if they are a cop, do they have to tell you?

In the highly acclaimed and Emmy award-winning television show, Breaking Bad, a season two episode illustrates an interesting and often-occurring scenario in the criminal justice system.  In this episode, Badger is seen selling methamphetamine from a park bench when he is approached by a skinny young man looking to purchase his product.  Badger is suspicious and asks the man if he is an undercover narcotics detective.  When confronted with this accusation, the man denies that he is undercover and tells Badger, “If you ask a cop if he’s a cop then he has to tell you.  It’s in the Constitution.”  Badger, who is no legal scholar, trusts this statement and proceeds to sell to the man.

As it turns out, Badger’s suspicions were correct and as soon as product and money exchange hands, the man flashes a badge and Badger finds himself face down on the ground, handcuffed, and under arrest.  So much for free legal advice.

As you can probably surmise by now, law enforcement officers have no legal duty to tell the truth when asked if they are, in fact, the law.  Unfortunately, however, most people erroneously believe that police officers must tell you who they are if asked and thus find themselves in a situation much like Badger’s.

So, are law enforcement officers allowed to lie to you?  The short answer is yes.  Police officers do not have to tell you that they are police officers, even when asked.  As long as the officer is lying in the course of performing his or her official duties (like an undercover drug buy), there is no law prohibiting them from doing so.  Many people falsely believe that if you ask a cop if they are a cop and they say no, and then you go ahead and sell to them, then this is entrapment and the arrest must be thrown out.  This could not be further from the truth.

Entrapment is a legal defense to an arrest and is defined as conduct by law enforcement that induces a person to commit an offense that he or she would otherwise have been unlikely to commit.  In order to prove entrapment, the following three conditions must be fulfilled:  (1)  The idea for committing the crime came from government agents/law enforcement and not from the person accused of committing the crime; (2)  Government agents/law enforcement then persuaded the accused into committing the crime; and (3) The person committing the crime was not ready and willing  to commit the crime before interaction with government agents/law enforcement.  It is important to remember that there is no entrapment when a person is ready and willing to break the law and law enforcement merely gives him or her an opportunity to do so, as in Badger’s case.

As you can probably tell, it is incredibly difficult to prevail on a defense of entrapment and the vast majority of undercover operations are merely officers giving people the “opportunity” to break the law, and not inducing the same.