02 Apr Is Consent To a Police Search Valid if Obtained by Deception?
It’s not always as daring or dramatic as the deep undercover operations recounted in “Serpico” or “Donny Brasco”, but on a daily basis, police can and do use deception in order to gather evidence of crimes. When trying to elicit a confession, for example, a detective may falsely tell a suspect that the suspect’s fingerprints or DNA were found at a crime scene.
Investigators also use various ruses and outright lies in order to obtain consent to search a person or location. A search made with valid consent is an exception to the Fourth Amendment’s protection against warrantless searches, and evidence seized in a consensual search is therefore generally admissible.
But what if the consent is obtained using deception or trickery? Is it still valid? As with most search and seizure law questions, there are few clear lines between what is and is not permissible. This is illustrated by just a few of the many federal and state court cases from around the country which have considered the issue.
While armed with a search warrant in a drug case, federal and state officers feared that the defendant would dispose of evidence if they followed the “knock and announce” procedure required by federal law. An officer did knock, but when asked “who is it?” by the occupant responded “Federal Express”. When the occupant opened the door, the officers served the warrant and entered the home. The court denied a defense motion to suppress the drug evidence seized, holding that use of deception to get an occupant to open the door does not violate the “knock and announce” requirement.
The Undercover “Narcotics Buyer”
To dispel any notion that only conservative courts side with the police in deception cases, one should note that an undercover investigator’s right to lie about his or her identity was validated in 1964 by the notably liberal U.S. Supreme Court under Chief Justice Earl Warren. The case involved an investigator who gained entry to the defendant’s home by posing as a prospective drug buyer. The Court held that a government agent may “accept an invitation to enter upon the premises for the very purposes contemplated by the occupant”, even though the agent obviously has a fundamentally different purpose in mind.
But not every ruse has received judicial approval. Here are a couple of instances in which the courts have ruled that the police deception went a bit too far.
Don’t Lie About Having a Warrant
In another case decided by the Supreme Court, local police investigating an alleged rape had identified a suspect who shared a home with his grandmother. When the grandmother met the officers at the door, they falsely stated that they had a warrant to search the home. Taking the officers at their word, she allowed them in. The Court affirmed the exclusion of the evidence discovered during the search, reasoning that consent can be valid only if it is voluntary, a logical impossibility when the supposed consent was given in response to the officers’ deliberately false statements.
I’m From The Government (But I’m Not Saying Which Part)
Being truthful about being a government agent may be insufficient if the investigator is less than forthcoming about his or her agency or branch. In one case, a state agent investigating an applicant for a firearms dealer license was accompanied by a federal Bureau of Alcohol, Tobacco, and Firearms agent investigating possible federal firearms violations. Neither the state agent nor the ATF agent himself, however, disclosed the latter’s identity. Evidence of illegal activity seized based on the ATF agent’s improper search was determined to be inadmissible.