From the “Can They Really Do That?” Department:

The FBI in Las Vegas wanted to search a hotel room of some suspected illegal gamblers. Instead of getting a search warrant, they first disguised themselves as computer guys ( maybe Geek Squad?) delivering laptops to the hotel room. The butler wouldn’t let them in. So they tried a different tactic — they had the hotel cut the internet, and pretended to be the internet repairmen in order to get inside the hotel room. Once inside they found enough evidence to go and actually get a warrant.

So can the FBI do that? Let’s break down what happened and see:

The Fourth Amendment applies to hotel rooms, not just your house and car:

The Fourth Amendment applies to any place you have a reasonable expectation of privacy, including rented hotel rooms. This means the FBI or police  can’t enter and search an occupied hotel room without a warrant or permission.

The FBI / police are allowed to lie to you.

They can lie about their identity as police officers if they are undercover or in plain clothes. They can lie to you if you are a suspect about how much evidence they have against you. They can lie about whether you are actually a target of an investigation.

Can the FBI cut off a utility and pose as repairmen in order to get around the Fourth Amendment?

This is the real question. Police have tried tactics like this before. We can assume that the suspects would not have allowed the FBI inside the hotel room if they had know they were FBI agents. We can also assume that the suspects weren’t just letting anyone wander in and out of the hotel room — they turned away the first “computer guys” when they tried to deliver some laptops.

There is some support for the FBI doing this. The Supreme Court has held that the police do not have to advise you of the right to refuse a search before asking for consent. Third parties who have control over a location or container can give consent for a search, even when the suspect isn’t present or doesn’t know about it.

Based on the way the Fourth Amendment has been applied by the Supreme Court, I doubt the FBI’s search of the hotel room is valid. The Court has held that the police can’t lie about having a warrant to gain access to a home. Implicit in the Supreme Court’s decisions involving consent searches is the idea that the person giving consent knows that they’re dealing with law enforcement. In order to give “consent” for a search, the party giving consent should know that they are dealing with the police.

Can the FBI use the evidence they got after going and getting a warrant?

It depends on whether the first search is valid. From what we know, the FBI didn’t have enough to convince the judge they had probable cause without going into the hotel room. Thus if that search is held to be illegal, the evidence collected under the warrant is “fruit of the poisonous tree.”

Let’s hope the court hearing the defendant’s challenge holds that, for consent to search to be valid, the person giving consent actually has to know they’re talking to law enforcement.