Two recent appellate decisions have revisited the use of deception and subterfuge as a law enforcement technique. While New York courts have traditionally been tolerant of deception in confession cases, the Appellate Division, Second Department recently suppressed a confession because the use of deception by law enforcement officers in that case denied the defendant due process. This column will discuss the use of deceptive techniques to obtain confessions and how courts have been less tolerant when law enforcement uses deception to gain entry into private premises or to obtain consent to search.
Almost 150 years ago, the New York Court of Appeals held that the use of deception, in and of itself, will not render a confession involuntary.1 Since then, in a long line of cases, the court has adhered to that principle,2 except in one instance where the court suppressed a confession when the police deceived a defendant by using a physician to obtain an admission while the defendant believed he was communicating confidentially with his doctor.3
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