Chapter 50: Surreptitious Questioning Of Charged Suspects (Massiah)
Generally
The issue: In Chapter 49 we explained that officers may question a charged suspect if he waives his Sixth Amendment right to have counsel present. The issue in this chapter is how officers may utilize a defendant's friends, accomplices, or other civilians to question him surreptitiously.
The rule: Because it is not possible to obtain a waiver if the suspect is unaware that he is doing so,[1] such covert operations are permissible only if (1) the civilian was not acting as a "police agent," or (2) the civilian did not "deliberately elicit" incriminating information.[2]
Value of undercover operations: Surreptitious questioning is not only lawful, it is "one of its most effective law enforcement techniques for investigating complex crime."[3]
Miranda not applicable: Surreptitious questioning by an undercover officer or civilian does not violate Miranda. See Chapter 42 Miranda: When Compulsory (Miranda Exceptions, The undercover agent exception).
"Police Agents
": As noted, the restrictions on surreptitious questioning of a charged suspect do not apply if the civilian was not acting as a police agent.
Who are "police agents": A civilian may be deemed a police agent as follows:
Direct requests: Officers instructed or directed him to seek incriminating information from the defendant.[4]
Direct promises: Officers promised him something in return if he obtained incriminating information from a defendant.
Implied promises: Although officers did not expressly promise a particular benefit, it was reasonably likely to be interpreted as one.[5]
Compare: "We'll talk to the DA": If the civilian was a person who has criminal charges pending in another case, it is not an implied promise if officers tell him that they will notify prosecutors in that case of his assistance so long as they do not promise a particular benefit such as a reduced sentence in a pending case or outright dismissal. See this endnote for examples of police-informant discussions that did not transform the person into a police agent.[6]
Compare: Jail policy of rewards for useful information: A jail's policy of rewarding inmates who provide useful information will not render all inmates who furnish information police agents.[7]
Compare: After-the-fact assistance: An agency relationship will not result merely because the civilian received some after-the-fact benefit as the result of the officers' actions; e.g., officer later testified on civilian's behalf at penalty phase,[8] the civilian "subsequently received what appears to have been favorable treatment as to various penalties,"[9] the civilian "may have gotten the [prison] placement he desired."[10]
Providing an incentive: A civilian will likely be deemed a police agent if officers said something that made it reasonably likely that he would attempt to obtain incriminating information from the defendant.[11] In other words, "the critical inquiry is whether the state has created a situation likely to provide it with incriminating statements from an accused."[12] Also see "After-the-fact assistance," above.
Failing to intervene: Officers will sometimes become aware that an civilian had been deliberately eliciting information from a defendant on his own initiative. The question arises: Will an agency agreement result if they took no action to stop him? The cases indicate that the answer is no unless they said something that could reasonably be interpreted as encouragement to continue doing so.[13]
Targeting the suspect: Officers targeted the defendant by identifying him to the civilian as someone who had information they wanted.[14]
Compare: Prior working relationship: Although it is relevant that the civilian had worked as an informant in the past,[15] it is not a significant circumstance.[16]
Who are not police agents
Civilians working on their own: A civilian who deliberately elicited information from a defendant will not be deemed a police agent if he did so on his own initiative.[17]
Unwitting informants: A civilian does not become a police agent merely because officers arranged to place him in close proximity to the defendant at a jail or prison.[18]
Informant "hoped" for leniency or compensation: An implied agreement will not result merely because the civilian hoped he would receive something in return.[19]
"Deliberately Elicit"
: As noted, even if a police agent obtained incriminating information from a suspect, a Sixth Amendment violation will not result unless the agent had "deliberately elicited" it.[20]
Defined: The term "deliberately elicit" is broadly defined as an attempt by an undercover officer or civilian to directly or indirectly initiate or stimulate a conversation with the defendant about the crime with which was charged.[21]
Inferring deliberate elicitation: In the absence of direct evidence as to what a civilian said to the defendant, the court may find that he deliberately elicited information if an officer had given him an incentive to do so or had otherwise created a situation in which he would likely try.[22]
Who initiated the meeting? In determining whether an agent deliberately elicited information, it is immaterial that the meeting was initiated by the suspect or the agent.[23]
Compare: Passive listener: A civilian does not deliberately elicit if he acts merely as a passive listener, "listening post," or "ear," and simply reports the defendant's statement to officers.[24]
What instructions should the civilian be given? The civilian should be told exactly what he can and cannot do and say. It is not sufficient to merely tell him not to "interrogate" or "question" the defendant, or to not initiate a conversation about the charged crime, or to "act naturally."[25] Instead, officers should explain that his role is that of a listening post—an "ear"—and that he may do nothing to stimulate a conversation about the charged crime.[26] It would, of course, be unrealistic to expect an agent to say absolutely nothing while the defendant was talking. (It would also be highly suspicious.) Still, they should be instructed to keep their comments to a minimum, and to limit them to meaningless conversation fillers and acknowledgments of understanding or agreement; e.g., Yeah, OK, Sure, I hear you, Say that again.[27]
If the agent ignores the officer's instructions: If the civilian disregarded the officers' instructions, the defendant's statement will likely be suppressed if the officers had given the civilian an incentive to obtain an incriminating statement.[28]
Notice requirement: When a civilian will testify about statements made by a defendant while the civilian and the defendant were in custody, the prosecution must comply with certain notice requirements. There is also a special jury instruction that must be given.[29] In addition, Penal Code§ 4001.1 limits the consideration that may be paid to jailhouse informants.
Notes
[1] USSC: US v.
Henry (1980) 447 US 264, 273 ["the concept of a knowing and
voluntary waiver of Sixth Amendment rights does not apply in the
context of communications with an undisclosed undercover informant
acting for the Government"]. CAL: P v.
Coffman (2004) 34 C4 1, 67; P v.
Williams (1997) 16 C4 153, 203-4; P v.
Fairbank (1997) 16 C4 1223, 1247, 1249; P v.
Frye (1998) 18 C4 894, 993.
[2] USSC: Massiah v. US (1964)
377 US 201.
[3] QUOTE FROM: US v. Powe (9C
1993) 9 F3 68, 70.
[4] CAL:
P v. Almeda (2018) 19 CA5 346, 359 ["Nothing in the
record shows [that the defendant's cellmate] acted under the
direction of the government pursuant to a preexisting agreement.
Deputy Comacho did not request or ask [the cellmate] to do
anything, nor did he offer any kind of agreement [to the cellmate]
for the information he would provide."]; In re Neely (1993)
6 C4 901, 915 [informant may be a police agent as the result of
police "encouragement, or guidance"]; P v.
Fairbank (1997) 16 C4 1223, 1247 ["Specific direction from
government agents ... can establish an implicit agreement."].
OTHER: US v. York (7C 1991) 933 F2
1343, 1358 ["the relevant question is whether the FBI told [the
informant] to collect information"]. COMPARE: P v.
Pensinger (1991) 52 C3 1210, 1250 ["no one ever made [the
informant] any promise of benefit or leniency in return for his
testimony"]; P v. Martin (2002) 98 CA4 408, 420 [no
evidence of "preexisting agreement"]; P v.
Moore (1985) 166 CA3 540, 547 ["There is no evidence ...
that White was acting pursuant to instructions from the police"].
[5] USSC: US v. Henry (1980) 447
US 264, 271-72 ["The arrangement between [the informant] and the
agent was on a contingent-fee basis; [the informant] was to be
paid only if he produced useful information."]. CAL:
In re Neely (1993) 6 C4 901, 910 [officer told the
informant that he "could be charged with anything from first
degree murder to a parking ticket, depending upon the degree of
Centers's cooperation with the authorities"]. COMPARE:
P v. Martin (2002) 98 CA4 408, 420 [no evidence of
"preexisting agreement"].
[6] EXAMPLES: The following are examples
of police-informant discussions that did not transform the
informant into a police agent
• The officer repeatedly told the informant "that the
district Attorney would accept any useful information [the
informant] had to offer about [the defendant's] case but would not
make any promises of leniency." P v. Johnsen (2021) 10 C5
1116, 1153.
• The officers made no promises except to say that they would
talk to the DA about a "deal." P v. Fairbank (1997) 16 C4
375, 401.
• "I will go to the District Attorney with the information
you give me. I will make it known to the District Attorney,
whatever information you have given me in the past. And that's all
I can do." In re Williams (1994) 7 C4 572, 598-99.
• The officer told the informant that "he could not guarantee
anything, that all he could do was turn over the kites to the
district attorney and then the district attorney would contact
[him]." P v. Dement (2011) 53 C4 1, 35.
• "The interviewing officers did not suggest they could
influence the decisions of the district attorney, but simply
informed defendant that full cooperation might be beneficial in an
unspecified way." P v. Carrington (2009) 47
C4 145, 174.
• The officer told the suspect his cooperation would be
brought to the DA's attention "for consideration." P v.
Ramos (2004) 121 CA4 1194.
• "[The detective's] promise to talk to the district attorney
about 'special consideration' for appellant, and his statement
that one such consideration might be for the district attorney to
charge only one burglary, was no more than the pointing out of
benefits which might result naturally from a truthful and honest
course of conduct. [The detective] expressly informed appellant
that he could make no guarantees of leniency." P v.
Groody (1983) 140 CA3.3d 355, 359.
• "The detective's offers of intercession with the district
attorney ['telling the district attorney that defendant had been
honest'] amounted to truthful implications that his cooperation
might be useful in later plea bargain negotiations." P v.
Jones (1998) 17 C4 279, 298.
[7] CAL: P v.
Williams (1988) 44 C3 1127, 1141 ["a general policy of
encouraging inmates to provide useful information does not
transform them into government agents"]; P v.
Gonzalez (1990) 51 C3 1179, 1240 ["a general policy of
encouraging inmates to listen and report" does not establish an
agency relationship].
[8] CAL: P v. Pensinger (1991) 52
C3 1210, 1249-50.
[9] CAL: P v.
Williams (1997) 16 C4 153, 204.
[10] CAL: P v.
Howard (1988) 44 C3 375, 401.
[11] USSC: US v.
Henry (1980) 447 US 264, 271 ["paid Government informant"].
CAL: P v. Whitt (1984) 36 C3 724, 744 ["The
detectives' offer to speak to the prosecutor on [the informant's]
behalf raises a serious concern as to whether the state gave [the
informant] an incentive to extract further statements from
Whitt."]; In re Neely (1993) 6 C4 901, 917-18 ["promise
(implied if not express) of some form of leniency"]; P v.
Memro (1995) 11 C4 786, 828 [informant was promised safe
housing "after he obtained defendant's statements"].
9th CIR: Randolph v. California (9C 2004) 380 F3
1133, 1139 ["it is not the government's intent or overt acts that
are important; rather, it is the likely result of the government's
acts"]. OTHER: US v. York (7C 1991)
933 F2 1343, 1358 ["informal agreement with [the informant] to
assist his parole application"]. COMPARE:
P v. Pensinger (1991) 52 C3 1210, 1249-50 [informant
was not a police agent merely because officers and a prosecutor
later testified in his behalf at the penalty phase of his capital
trial]; P v. Williams (1997) 16 C4 153, 204 [agency
relationship not established merely because the informant
"subsequently received what appears to have been favorable
treatment as to various penalties"]; P v.
Howard (1988) 44 C3 375, 401 ["although [the informant] may
have gotten the [prison] placement he desired, he had not been
promised any quid pro quo in return for evidence"].
CAL: In re Neely (1993) 6 C4 901, 915 [informant may
be a police agent as the result of police "promises"];
P v. Gonzalez (1990) 51 C3 1179, 1241 [an informant
will be a police agent if officers gave him "direct motivation" to
provide information].
[12] CAL: P v. Whitt (1984) 36
C3 724, 742. ALSO SEE: US v. Ocean (1C 2018) 904 F3
25, 33 ["Deliberate elicitation occurs when the government
intentionally creates a situation likely to induce a defendant to
make incriminating statements without the assistance of
counsel."].
[13] CAL: P v. Almeda (2018) 19
CA5 346, 360 ["Villa faults the government for not 'reigning in'
[the cellmate] or directing him to avoid raising the case with
Villa. However, any such actions by the government would have
demonstrated [that the cellmate] was its agent."];
P v. Pensinger (1991) 52 C3 1210, 1250 ["though the police
interviewed Howard about defendant's statements on six occasions,
each interview was at Howard's instigation" and furthermore the
investigators told him "he was not their agent, and to expect no
reward"]; P v. Dominick (1986) 182 CA3 1175, 1198 ["The
investigator told him to 'stay in touch' but at no time instructed
him to seek out any information from inmates concerning criminal
activity."]; P v. Williams (1997) 16 C4 153, 204
[officers testified that "they in no way asked or even suggested
that Cox should be their agent"]; P v.
Coffman (2004) 34 C4 1, 67 [jailhouse informant was not a
police agent merely because deputies knew she was routinely
engaging other inmates in "mock fortunetelling" in order to elicit
incriminating information, and there was no evidence that deputies
had encouraged her to do so].
[14] USSC: Kuhlmann v.
Wilson (1986) 477 US 436, 439 [informant "agreed to listen
to respondent's conversations and report his remarks to [the
officer"]; Maine v. Moulton (1985) 474 US 159.
US v. Henry (1980) 447 US 264, 271, fn.8
["[The FBI agent] singled out Henry as the inmate in whom the
agent had a special interest."]. CAL:
In re Neely (1993) 6 C4 901, 915 ["Circumstances probative
of an agency relationship include the government's having directed
the informant to focus upon a specific person, such as a cellmate,
or having instructed the informant as to the specific type of
information sought by the government."]. OTHER: US
v. York (7C 1991) 933 F3 1343, 1358 ["[The FBI
agent] told [the informant] the type of information he was
interested in receiving; that statement was tantamount to an
invitation to [the informant] to go out and look for that type of
information."]; Schmitt v. True (E.D. Va.
2005) 387 FS2 622, 650 ["[The officer] had freighted his
instructions to [the informant] with cues as to what information
the police desired"].
[15] CAL: In re Williams (1994)
7 C4 572, 598 [prior working relationship "may, depending on the
circumstances, give rise to an inference that the police
encouraged the informant to elicit incriminating information"];
In re Neely (1993) 6 C4 901, 920 [evidence of a
"preexisting relationship between [informant and officer] should
have alerted competent counsel of the strong possibility that [the
informant] was acting as a police agent"]; P v.
Fairbank (1997) 16 C4 1223, 1248 ["an informant's prior
working relationship with police may imply an agreement,
particularly when police knew from the circumstances that the
informant likely would take affirmative steps to secure
incriminating information"].
[16] CAL: P v. Johnsen (2021) 10
C5 1116, 1153 ["And unlike a repeat informant, [the informant] had
never given authorities information about another inmate, so there
is no indication that [the informant] was working under a
preexisting agreement or continuing practice of collaboration with
law enforcement."]; In re Williams (1994) 7 C4 572, 597-98
["we reject petitioner's suggestion that a Sixth Amendment
violation is established if only he can show that the police had a
prior working relationship with [the informant]"]; P v.
Memro (1995) 11 C4 786, 828 ["A history as an informant]
does not automatically make an informant a state agent. In our
view, no constitutional question arises unless the informant is an
agent of the state at the time he or she elicited the
statements"].
[17] CAL: P v.
Dement (2011) 53 C4 1, 35 [officer "specifically told him
that he was not to elicit information from defendant on our
behalf"]; P v. Keo (2019) 40 CA5 169, 181 [questioning by
social worker re child dependency issue]; P v.
Catelli (1991) 227 CA3 1434, 1442 ["When on his or her own
initiative, rather than at the state's behest, an informant
obtains incriminating information from an accused, there is no
[Sixth Amendment violation]"]; P v. Whitt (1984) 36
C3 724, 742 ["if an informant interrogates an accused, but acts on
his own initiative rather than at the behest of the government,
the government may not be said to have deliberately elicited the
statements"]; P v. Fairbank (1997) 16 C4 1223, 1247
["If an informant acts on his own initiative, even if he
interrogates the accused, the government may not be said to have
deliberately elicited the statements."]; In re Neely (1993)
6 C4 901, 915 ["a jailhouse inmate" is not a police agent "where
law enforcement officials merely accept information elicited by
[him] on his or her own initiative, with no official promises,
encouragement, or guidance"]; In re Wilson (1992) 3 C4 945,
952 ["petitioner does not allege that either the police or the
district attorney requested at that time that [the informant]
solicit information from petitioner"]; P v.
Memro (1995) 11 C4 786, 828 ["[The informant] was gathering
information on his own initiative, not that of the state."];
P v. Coffman (2004) 34 C4 1, 67 ["[Defendant] fails
to demonstrate that the government did anything more than accept
information that Long elicited from Coffman on her own
initiative."]. OTHER: US v. Ocean (1C 2018) 904 F3
25, 35 ["there is no evidence of an effort by the Government to
get incriminating statements from Ocean"]; US v.
York (7C 1991) 933 F2 1343, 1357 ["There is a distinct
difference between passively receiving information provided by
enterprising inmates and striking deals with inmates—whether based
on coercion or enticement"].
[18] CAL: P v.
Hartsch (2010) 49 C4 472, 492 ["the record does not suggest
an implicit agreement between [the unwitting informant] and the
police"]; P v. Champion (1995) 9 C4 879, 909-11
[defendants transported together and separated from other
prisoners in a bugged vehicle]; P v. Lucero (1987)
190 CA3 1065, 1067-68 [officers placed defendant and codefendant
in a bugged police car together]; P v. Frye (1998)
18 C4 894, 993 ["There is no evidence Warsing was acting as a
government agent when police arranged for defendant to speak with
her in the jail's visiting facility."]. ALSO SEE:
P v. Fairbank (1997) 16 C4 1223, 1248 [informant not
a police agent merely because "a deputy district attorney
intervened to prevent the sheriff's department from moving
defendant away from [the informant]."].
[19] CAL: P v. Johnsen (2021) 10
C5 1116, 1154 ["The fact that [the informant] ultimately received
leniency in return for the information he elicited did not
transform him into a government agent because the district
attorney did not offer a leniency deal or even say a deal was in
the works]; P v. Fairbank (1997) 16 C4 1223, 1248
["Of course, [the informant] may have hoped to receive some
benefit in exchange for his ongoing receipt of information, but he
nevertheless continued to act on his own initiative."].
OTHER: US v. York (7C 1991) 933 F2
1343, 1357 ["That inmates realize there is a market for
information about crime does not make each inmate who enters the
market a government agent."]; US v.
Watson (DCC 1990) 894 F2 1345, 1348 ["[The informant] was
acting as an entrepreneur; he may have hoped to make a sale to the
Government when he spoke with Watson, but that does not make the
Government responsible for his actions."].
[20] USSC: Kuhlmann v.
Wilson (1986) 477 US 436, 459 ["the primary concern of the
Massiah line of decisions is secret interrogation by
investigatory techniques that are the equivalent of direct police
interrogation"]; Brewer v. Williams (1977)
430 US 387, 399 ["[The detective] deliberately and designedly set
out to elicit information from Williams just as surely as and
perhaps more effectively than if he had formally interrogated
him."]. CAL: P v. Williams (2013) 56 C4 165, 188-89
[no deliberate elicitation when an officer asked the defendant
questions about reported threats to his safety];
In re Neely (1993) 6 C4 901, 915.
[21] USSC: Fellers v.
US (2004) 540 US 519, 524 [The Court of Appeals erred in
holding that the absence of an 'interrogation' foreclosed
petitioner's claim that the jailhouse statements should have been
suppressed [under the Sixth Amendment]."]; Massiah
v. US (1964) 377 US 201, 206 [a violation will
result from "indirect and surreptitious interrogations" in which
officers or others merely "deliberately elicit" incriminating
statements]; US v. Henry (1980) 447 US 264,
272, fn.10 ["Whether Massiah's codefendant questioned Massiah
about the crime or merely engaged in general conversation about it
was a matter of no concern to the Massiah Court."];
Maine v. Moulton (1985) 474 US 159. CAL: P v. Fayed (2020) 9 C5 147, 166 [the informant "asked
defendant specific, and arguably leading, questions about Pamela's
killing, including probing whether it was defendant's idea to take
the company's rented car which was used in the killing. [The
informant] also appeared to ingratiate himself by expressing
sympathy for defendant and commiserating with defendant on how
Moya and his cohorts bungled Pamela's murder"];
In re Neely (1993) 6 C4 901, 915 [Massiah violation
results "where a fellow inmate, acting pursuant to a
prearrangement with the government, stimulates conversation with a
defendant relating to the charged offense or actively engages the
defendant in such conversation."]; P v.
Catelli (1991) 227 CA3 1434, 1444 ["In repeatedly querying
defendant about his proposal to silence the victims, [the officer]
clearly undertook a course of conduct deliberately designed to
elicit incriminating statements from defendant."]; P v.
Roldan (2005) 35 C4 646, 735-36 [sheriff's deputy did not
deliberately elicit when she asked a county jail inmate if he was
going to " stay out of trouble"]; P v. Frye (1998)
18 C4 894, 994 ["[The informant] neither questioned defendant
about the murders nor encouraged him to discuss the pending
charges."].
[22] USSC: US v.
Henry (1980) 447 US 264, 274 [the agents had created "a
situation likely to induce Henry to make incriminating
statements"]. CAL: P v. Whitt (1984) 36 C3
724, 742 ["the critical inquiry is whether the state has created a
situation likely to provide it with incriminating statements from
an accused"]; In re Neely (1993) 6 C4 901, 917-18 [a deputy
told the informant that he "was seeking specific information from
[the defendant] as to the whereabouts of the murder weapon," and
the deputy "encouraged and instructed [the informant] as to the
means by which [he] could procure this information from [the
defendant]"]. OTHER: US v. Sampol (DCC
1980) 636 F2 621, 638 [court inferred that an informant
deliberately elicited incriminating statements from the defendant
because the terms of his probation required that he "go all out"
in obtaining such statements].
[23] USSC: Maine v.
Moulton (1985) 474 US 159, 174-75. CAL: P v.
Whitt (1984) 36 C3 724, 741; In re Wilson (1992) 3
C4 945, 953; P v. Cribas (1991) 231 CA3 596, 605.
[24] USSC: Kuhlman v.
Wilson (1986) 477 US 436, 459 ["a defendant does not make
out a violation of [the Sixth Amendment] simply by showing that an
informant, either through prior arrangement or voluntarily,
reported his incriminating statements to the police. Rather, the
defendant must demonstrate that the police and their informant
took some action, beyond merely listening, that was designed
deliberately to elicit incriminating remarks"]. CAL:
In re Wilson (1992) 3 C4 945, 950 ["no violation of
Massiah occurs where an informant-cellmate is simply a
'listening post' and does not ask questions or solicit
information"]; P v. Williams (1997) 16 C4 153, 205
["[The informant] acted as a mere governmental listening post"];
P v. Pensinger (1991) 52 C3 1210, 1249 ["passive
listening post"]; P v. Hovey (1988) 44 C3
543, 561 ["[The informant] asked no questions of defendant nor
forced any information from him."]; P v.
Pitts (1990) 223 CA3 606, 848 [informant "merely overheard
them talking"]; P v. Superior Court (Sosa) (1983)
145 CA3 581, 596 ["[The informant's] testimony falls short of
making an effort to stimulate conversations about the crime
charged"]; P v. Martin (2002) 98 CA4 408, 422 ["the
officers only told her to turn on the tape recorder whenever
defendant called."].
[25] USSC: Maine v.
Moulton (1985) 474 US 159, 177, fn.14 [insufficient that
officers told the informant to "be himself," "act normal," and
"not interrogate" the defendant]. CAL: P v.
Whitt (1984) 36 C3 724, 742 ["[The state] may not disclaim
responsibility for this information by the simple device of
telling an informant to 'listen but don't ask.'"].
[26] CAL: P v. Almeda (2018) 19
CA5 345, 359 ["When [defendant's cellmate] asked if there was
something they wanted him to ask Villa, the prosecutor
unequivocally said there was not. They told [the cellmate] that
if Villa volunteered anything, he could just listen, but he
was not to risk his safety."]. OTHER: US v.
Lentz (4C 2008) 524 F3 501, 517-18 ["First, they instructed
[the informant] that he should be only a 'listening post.' In
other words, [the informant] was told that he should not directly
solicit any information from Lentz or ask questions about Lentz's
case. Yet, if Lentz wishes to speak about his came without
prompting from [the informant], [the informant] certainly was free
to listen. And [the informant] could report that information back
to the government, but he was not instructed that he was under an
obligation to do so. The instruction to be a listening post was
repeated two or three times to ensure that [the informant]
understood. Second, [the FBI agent] told [the informant] that he
could 'personalize' the conversation. In other words, he could
talk with Lentz about 'subjects of common interest'—e.g., family,
children, or the difficulties of being locked-up—but he could not
engage Lentz in any conversations about his case."].
[27] USSC: Kuhlmann v.
Wilson (1986) 477 US 436, 460 [informant merely told the
defendant that his story "didn't sound too good"]. OTHER:
US v. York (7C 1991) 933 F3 1343 [informant
did not deliberately elicit when he observed, "You must have been
pretty mad at the bitch"].
[28] USSC: US v.
Henry (1980) 447 US 264, 270-72. BUT ALSO SEE:
Michigan v. Tucker (1974) 417 US 433, 447 ["The deterrent
purpose of the exclusionary rule necessarily assumes that the
police have engaged in willful, or at the very least negligent,
conduct which has deprived the defendant of some right."];
Illinois v. Krull (1987) 480 US 340, 348 ["evidence should
be suppressed only if it can be said that the law enforcement
officer had knowledge, or may properly be charged with knowledge,
that the search was unconstitutional under the Fourth Amendment"].
[29] CAL: Pen. Code§ 1127a(b).