De Lorean case: focusing attention on undercover work

THE acquittal of John Z. De Lorean of drug trafficking charges on grounds of entrapment may well taint the public's perception of covert operations. It will do little, however, to hamper the multimillion-dollar-a-week business in undercover work carried out by private security agents.

Few in either the legal profession or law enforcement would quarrel with the jury's decision that, in this case, the methods used by undercover agents created a criminal rather than caught one. For this reason, security experts are skeptical as to whether this particular case will have any effect on the continued use of undercover agents and their ability to conduct ''sting'' operations as a ''necessary evil,'' especially in combating white-collar crime.

So far, little attention has been paid to the fact that an estimated 5,000 private undercover agents in the United States operate every day in industrial plants, offices, department stores, hotels, and restaurants, blending in with the rest of the work force while they try to ferret out a wide variety of crimes ranging from theft in a warehouse to computer fraud.

Randolph D. Brock III is president of IntelliSearch Corporation, a security consulting firm in Middlebury, Vt., that specializes in undercover work. He calculates that private security firms rake in about $2 million a week in covert operations, and that overall this represents 2.5 percent of the total $4 billion a year lost to business in internal thefts, or more than $800 million a week. US Department of Commerce experts contend that even that guess is on the conservative side.

Edward A. Sundberg, president of Ogden Security Inc. in Somerville, Mass., notes that ''30 percent of business failures are caused by losses created by criminal activity.''

Thus it is not surprising that many of the large retail chain store companies budget up to $500,000 a year for undercover operations as part of their security budgets, and that many smaller companies willingly pay about $5,500 to ''quietly'' sort out a problem.

By its very nature, undercover work is a risky business. But this is less so in the private sector, where, unlike government law enforcement agents, private undercover agents cannot commit a crime such as dealing drugs or purchasing stolen property to effect a sting. They also lack the power of arrest. Another major difference is that in private sector investigations, the information obtained is more often than not used by the corporations as grounds for dismissal rather than for prosecution.

Mr. Brock notes that typical investigations in the private sector ''are characteristically different from the De Lorean case, inasmuch as they generally deal with crimes or problems where there is evidence that they already occurred or are probably ongoing, whereas in the De Lorean case it doesn't appear that he committed a crime before the investigation commenced.''

But perhaps the strongest reason undercover work will continue to be a potent weapon in the arsenal of law enforcement is that as a technique, it has time and again withstood the test of the judicial system.

''It is the only investigative technique that will result in conviction,'' says New York lawyer J. Joseph Bainton. ''Of the thousands of cases which have been brought to court as a result of information obtained during covert operations, only a few have been thrown out on grounds of entrapment.''

As a result of the De Lorean case there could well be calls in Congress for legislation limiting the powers of law enforcement undercover agents. For example, Rep. Don Edwards (D) of California has introduced a bill that would require government agents to get a court order to conduct a sting operation. This is similar to the current requirement for obtaining a search warrant. Legal experts feel that the chances of such moves being adopted are slim, especially in view of the Supreme Court's recent decision to modify the exclusionary rule, thereby permitting the use of illegally obtained evidence under certain circumstances.

At the moment, there seems to be no movement to extend such legislation to cover the private sector, perhaps because it might be perceived as denying a corporation its right to employ undercover agents to provide legitimate business information.

One sensed from the jurors' comments after the De Lorean trial that what offended them was not only the excessive zeal of the investigators in trying to prove their case, but the perception that the government unfairly had it in for an individual.

Unfortunately, our system may sometimes work that way, but that is not the underlying motive of undercover work. It is a useful aid to our legal system, which already has built-in checks for excesses, as proved by the De Lorean verdict.