NYPD's Tunnel Vision
After New York City prosecutors dismissed most of the original Operation Lucky Bag arrests, it appeared that the controversial subway-sting operation, in which "abandoned" valuables were used as bait to arrest people, was stopped dead in its tracks.
But a revamped Operation Lucky Bag has been up and running and has resulted, the NYPD says, in about 100 arrests so far this year.
Critics are up and running as well. "It is, without a doubt, one of the stupidest police operations I have ever heard of," defense attorney Ron Kuby says, suggesting that the sting should be dubbed "Operation Lucky Lawyers" because of the money that attorneys stand to make by suing the city.
The original sting began in February 2006 and over the next year netted about 220 arrests of people who did not return wallets, bags, and other "lost" property planted in the subways by cops.
The NYPD contended that the sting helped knock down crime in the subways by 13 percent, but prosecutors and judges found evidence in the cases lacking. In dismissing one of the cases, a Brooklyn judge noted that the law allows 10 days for someone to turn in found property and added that the police "do not need to manipulate a situation where temptation may overcome even people who would normally never think of committing a crime." More than half of those arrested had never been pinched before.
"Step away from the wallet! That means you, too, you good Samaritan, if you don't want to risk getting busted," a Daily News editorial sarcastically noted at the time. "The NYPD has been conducting a subway sting based on the assumption that cops can divine who has larceny in their hearts."
After the embarrassment of having the first year's arrests dismissed, officials from the Manhattan District Attorney's Office met with NYPD lawyers to make recommendations on how to make the operation more prosecutorially palatable. An advisory manual handed out to prosecutors includes a special section specifically on the sting. In typical lawyer talk, the guideline is this:
"Taking money out of a wallet and discarding the latter, which may contain owner information, searching through a bag to remove items of value and leave the rest behind, secreting the property or other furtive behavior or denying to an undercover officer posing as the owner that the taker found any property, are examples of facts that should support a larceny charge. . . . Absent such circumstances we should decline to prosecute the cases as unprovable."
NYPD spokesman Paul Browne insists that all of the recent Operation Lucky Bag arrests involve only people who have taken money out of the planted wallets or removed items, such as iPods, from the bags.
Eugene O'Donnell, a professor of police studies at John Jay College of Criminal Justice, says that Operation Lucky Bag is actually just a new use of an old NYPD integrity test in which Internal Affairs officers would drop a wallet near a cop and then see whether the cop copped it or turned it in.
But a more troubling comparison is with another subway undercover operation that O'Donnell's brother, John, worked on as a transit cop in the '80s. Using cops posing as drunken or sleeping riders, the Transit Robbery Squad's Decoy Unit racked up so many arrests that 60 Minutes profiled it. John O'Donnell's specialty, his brother said, was playing "the drunken yuppie."
But the decoy squad wound up running amok. Some cops, saying they felt the pressure to make more arrests than the year before, began planting evidence and making false charges against innocent passengers. Under pressure from civil rights groups, the NYPD disbanded the unit in 1987.
O'Donnell says prosecutors should be leery about the same thing happening with Operation Lucky Bag because of the pressure being applied these days by police supervisors to push the NYPD's reportedly low crime levels in the subways even lower.
"The concern that I have is that there may be pressure put on the cops to have a scripted story," says O'Donnell. "Watching someone take the wallet, open it up, and take the money out? To me it belies believability that a person would find a wallet and take the money out right away, then throw the wallet in the garbage."