Can New York undercover police officers conduct 'reverse drug sales' — that is, sell controlled substances to suspects as part of a drug investigation — without violating the Public Health Law's drug regulation scheme?

Subject

Whether the "reverse sale" drug enforcement technique (undercover police officers selling controlled substances to suspects to facilitate arrests) is permissible under New York law, given Public Health Law Article 33's regulation of controlled-substance possession and sale; reconsideration of Formal Opinion No. 86-F14.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/96-F10_pw.pdf

Plain-English summary

The Superintendent of the State Police asked the AG to reconsider Formal Opinion No. 86-F14, which had concluded that "reverse drug sales" by undercover officers were not authorized by New York law. A reverse drug sale is a sting technique: instead of buying drugs from a suspect (a standard "buy" operation), the undercover officer sells drugs to a suspect, then makes the arrest. The technique has been used in New York and elsewhere for various reasons, including to identify suppliers further up the chain or to interdict buyers in specific neighborhoods.

Formal Opinion 86-F14 had read Public Health Law Article 33 narrowly. The statute regulates possession and sale of controlled substances and lists the lawful purposes (medical, research, etc.) for which possession or sale is permitted (§ 3304). It then carves out four categories of people who are exempt from Article 33 (§ 3305(1)), including law enforcement personnel whose duties require possession. The earlier opinion concluded that the law enforcement exemption covered possession but not sale, since the statutory text exempts possession but does not specifically exempt sale.

The 1996 opinion superseded that reading. Two moves did the work. First, the AG narrowed the law enforcement exemption to its proper scope: the § 3305(1)(b) exemption covers people whose lawful performance of their official duties requires possession and control, like the police chemist, evidence technician, transport officer, court clerk, prosecutor, and jurors. Undercover officers selling drugs in a sting are not really in that category; they are not handling drugs as part of the regulated lawful uses contemplated by the Public Health Law.

But that does not end the analysis. The Penal Law's purposes (§ 1.05) include proscribing conduct, providing for public response, and ensuring public safety. Penal Law § 35.05 provides a justification defense: "conduct which would otherwise constitute an offense is justifiable and not criminal when such conduct is required or authorized by law or by a judicial decree, or is performed by a public servant in the reasonable exercise of his official powers, duties or functions."

Read together, the AG's view was that an undercover officer engaging in a reverse drug sale is a public servant exercising official powers; § 35.05 justifies what would otherwise be an "unlawful" sale under Public Health Law § 3304. The technique is therefore not in contravention of § 3304. The AG cited the U.S. Supreme Court's warning against "literal interpretation of statutes at the expense of the reason of the law and producing absurd consequences or flagrant injustice" (Sorrells v U.S.) and noted New York courts' acceptance of the contrived crime in appropriate circumstances (People v Archer).

The opinion expressly superseded Formal Opinion No. 86-F14.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is a "reverse drug sale"?
The conventional drug sting involves an undercover officer buying drugs from a suspected dealer. A reverse drug sale flips the roles: the officer sells drugs (typically marked or controlled inventory) to a suspect, then arrests the suspect for purchase or attempted purchase. Reverse sales are sometimes used when a buyer is the target rather than a seller, or when the supply chain investigation requires the police to provide the substance.

Why was the technique in legal doubt under New York law?
Because Public Health Law § 3304(1) makes possession, sale, or other handling of controlled substances "unlawful" except as the statute provides. If you read that broadly, then an undercover officer who sells drugs is, on the face of the statute, committing an unlawful sale. The exemptions in § 3305(1) cover possession in the lawful performance of official duties, but the statute does not specifically say "and sale by undercover officers is also exempt." Formal Opinion 86-F14 had treated that gap as a categorical bar.

Why did the 1996 opinion change course?
Because Penal Law § 35.05 already supplies a general justification for conduct that would otherwise be an offense when performed by a public servant in the reasonable exercise of official powers. The justification defense applies across the criminal law, not just to assault, trespass, or other offenses commonly thought of in that context. The AG concluded that Public Health Law § 3304 does not stand outside the § 35.05 framework just because it uses the word "unlawful."

Does this mean any drug sale by a police officer is automatically lawful? No. The § 35.05 justification requires that the conduct be performed by a public servant "in the reasonable exercise of his official powers, duties or functions." A reverse drug sale that is part of an authorized investigation, with appropriate command-level approval and operational planning, fits within that. A police officer trafficking drugs for personal profit obviously does not, and the justification defense would not apply.

What is the practical doctrine on entrapment?
The opinion did not analyze entrapment in detail. New York's entrapment defense (Penal Law § 40.05) is a separate doctrine: a defendant can argue that police induced the criminal conduct in a person not otherwise disposed to commit it. Reverse drug sales can raise entrapment issues case by case, but the AG's holding here addresses the antecedent question of whether the police technique itself is lawful, not whether a specific prosecution survives an entrapment defense.

What is "Formal Opinion No. 86-F14"?
A 1986 AG opinion that read Public Health Law Article 33 to disallow reverse drug sales. The 1996 opinion squarely supersedes it. A practitioner researching the question after 1996 should rely on the 1996 opinion, not the 1986 one, for the AG's view, while recognizing that more recent statutes or cases may have moved the law further.

Background and statutory framework

Public Health Law Article 33 is New York's State-level controlled-substances regulation, parallel to the federal Controlled Substances Act. Article 33 governs scheduling, licensing of manufacturers and distributors, prescription requirements, and the like. Section 3304 declares possession or sale "unlawful" except as the article permits; § 3305 lists exemptions, including the law enforcement provision in § 3305(1)(b) that exempts persons whose lawful performance of their official duties requires possession and control.

The Penal Law's general justification doctrine is in Article 35. Section 35.05 covers conduct required or authorized by law or judicial decree, and conduct performed by a public servant in the reasonable exercise of official powers. That latter clause is what supports the lawfulness of reverse drug sales in the 1996 opinion. The Practice Commentaries by Arnold D. Hechtman, quoted in the opinion, illustrate the kind of conduct § 35.05 was meant to cover: possession of narcotics, policy slips, and tear gas by a police officer carrying out an investigation or maintaining public order.

Federal and State courts have a long history of accepting investigative deceit, including the "contrived crime" technique. Sorrells v U.S. is the foundational entrapment case. U.S. v Archer and People v Archer (two unrelated cases by the same name) addressed the limits on police-orchestrated criminal conduct; both stopped well short of declaring undercover work categorically illegitimate.

Citations

• Penal Law § 1.05(1), (5), (6) (purposes of the Penal Law)
• Penal Law Article 220 (controlled substance offenses)
• Penal Law § 35.05 (justification: conduct authorized by law or by public servant in reasonable exercise of official powers)
• Public Health Law Article 33 (regulation of controlled substances)
• Public Health Law § 3304(1) (declarations of unlawful acts)
• Public Health Law § 3305(1), (1)(b) (exemptions)
• Sorrells v U.S., 287 US 435, 446 (1932)
• U.S. v Archer, 486 F2d 670, 677 (1973)
• People v Archer, 68 AD2d 441, 449 (2d Dept 1979)
• Formal Opinion No. 86-F14 (superseded)

Original opinion text

Opn. No. 96-F10
PENAL LAW ART 220, §§ 1.05(1), (5), (6), 35.05; PUBLIC HEALTH LAW ART 33, §§ 3304(1), 3305(1). The utilization of the reverse sale law enforcement technique for combatting illegal controlled substance activity is not in contravention of section 3304 of the Public Health Law. October 22, 1996 Hon. James W. McMahon Formal Opinion Superintendent No. 96-F10 Division of State Police State Campus, Bldg. 22 Albany, NY 12226-5000 Dear Superintendent McMahon: You have requested a review of Formal Opinion No. 86-F14 rendered in 1986, which concluded that the law enforcement technique known as "reverse drug sale" was not authorized under New York law. For the reasons set forth in your request, we have reviewed the prior analysis in order to respond to your inquiry. Formal Opinion No. 86-F14 relied on the interrelation of the Public Health Law, Article 33, and the Penal Law, Article 220, for its determination. The focus of this opinion was on the definition and use of the term "unlawful" as applied to the possession and sale of controlled substances. An exemption was found under Public Health Law § 3305(1)(b) for what would be an "unlawful" possession or control of controlled substances by members of law enforcement. However, a literal reading of the aforementioned section found no such exemption for what would be described as an "unlawful" sale of such by the same members of law enforcement. This interpretation effectively disallowed what is known as "reverse sales" of drugs by police officers operating under State law. Public policy and the legitimate government interest in controlling illegal drug trafficking require a reexamination of the Public Health Law and the Penal Law, and the legislative intent underlying both. "Literal interpretation of statutes at the expense of the reason of the law and producing absurd consequences or flagrant injustice has frequently been condemned." Sorrells v U.S., 287 US 435, 446 (1932). Public Health Law Article 33 acknowledges the many legitimate uses of controlled substances in New York and its purpose is to "govern and control" the making, holding and transferring of such, when necessarily incidental to those uses. Section 3304(1) provides the broadly inclusive regulation and it delineates ten possible means under which controlled substances can be handled for lawful purposes. All other activity involving controlled substances falling outside the scope and purview of section 3304 is deemed "unlawful". Recognizing the need for exemptions from the regulation, the Legislature carved out four categories of persons to which Article 33 would not apply. Section 3305(1). Of note is the fact that in each category, persons under the exemption are presumed to be handling controlled substances, to whatever degree, in the lawful performance of their employment or official duties. Each type of employment or duty is associated with, or related to, the legitimate regulated uses. The statutory scheme presented under the Public Health Law has proven successful in achieving its stated purpose, that of regulating the uses of controlled substances. The stated purpose of the Penal Law, however, differs from that of the Public Health Law, in that the former "proscribes conduct", "provides for public response" and "insures the public safety". Penal Law § 1.05(1), (5), (6). Penal Law Article 220 makes criminal, in varying degrees, the knowing and unlawful possession and/or sale of controlled substances. The nexus Article 220 has with the Public Health Law is that the definition of "unlawful" under the Penal Law is written as "in violation of Article 33 of the Public Health Law". The question remains whether the purpose and intent of the Public Health Law is compatible with the Penal Law or whether one provision can sufficiently offset the implementation of the purpose and intent of the other. Specifically, whether undercover law enforcement officials who come into possession of controlled substances do so "unlawfully", and, concomitantly, would those same officers who sell these substances in the course of their law enforcement duties, do so "unlawfully". Formal Opinion No. 86-F14 answered the first inquiry by grouping all law enforcement members who would "possess" under the Public Health Law exemption. Section 3305(1)(b). This appears to be an overbroad reading of the exemption. Clearly, the provisions of Article 33 should exempt persons whose "lawful performance of their official duties require possession and control". Emphasis added. Obvious examples in the law enforcement realm are the chemist who analyzes the controlled substances, the police evidence technician who seals and stores it, the police officer who transports the item between the police agency and the laboratory, the court clerk who maintains it as evidence at trial, the prosecutor in charge of the case, and the jurors who review the evidence. However, the techniques employed by members of law enforcement in an undercover capacity do not lie squarely within the confines of the exemption provided by section 3305(1)(b). Undercover police officers cannot be categorized as persons routinely subjected to the regulations or exemptions provided by the Public Health Law to the extent that if an investigation requires the employment of enforcement techniques intended to promote the purpose and intent of the Penal Law and is not permitted by a Public Health Law regulatory statute, the essential purpose of the public safety Penal Law statutes should govern in this particular instance. The resolution of this inherent statutory dilemma is found in the Penal Law under section 35.05. Section 35.05 provides the appropriate vehicle to further the ends of criminal justice without compromising the integrity of the Public Health Law. It states as follows:

. . . conduct which would otherwise constitute an offense is justifiable and not criminal when such conduct is required or authorized by law or by a judicial decree, or is performed by a public servant in the reasonable exercise of his official powers, duties or functions.

The late Arnold D. Hechtman included in his "Practice Commentaries" under section 35.05, the observation that

the provision was and is aimed at conduct such as possession of narcotics, policy slips and tear gas, all of which is criminal in general but which obviously should not be regarded in the case of a police officer performing official functions of criminal investigation or maintaining public order.

39 McKinney's Penal Law § 35.05 at 82-3 (1975 ed.)

This statute recognizes that there is conduct which would otherwise be an offense or "unlawful" which is justifiable under certain enumerated circumstances. One such circumstance, when conduct is required or authorized by law, would apply to that mentioned in the exemption under the Public Health Law. Another occasion, when "conduct is performed by a public servant in the reasonable exercise of his official powers, duties or functions", would include the undercover members of law enforcement as "public servants" who in the "reasonable exercise" of their powers enter into conduct such as reverse drug sales, which would otherwise be "unlawful". Although techniques change in response to the criminal element, the basis for the Penal Law justification provision remains the same. In the past, what was innovative or effective in drug law enforcement may no longer be so, and the adaptability of investigative methods should not be curtailed. Despite the fact that the courts have expressed discomfort in upholding criminal charges or convictions when arrived at by "the government participation in crime", U.S. v Archer, 486 F2d 670, 677 (1973), it is well-settled that "the carefully selected use of the contrived crime under appropriately compelling circumstances . . . is not repugnant to a sense of justice". People v Archer, 68 AD2d 441, 449 (2d Dept 1979). We, therefore, conclude the utilization of the reverse sale law enforcement technique for combatting illegal controlled substance activity is not in contravention of section 3304 of the Public Health Law. Formal Opinion No. 86-F14 is hereby superseded by this opinion. Very truly yours,

DENNIS C. VACCO
Attorney General