Update: Feds Defend Warrantless Undercover Repairman Search


I recently wrote about the Las Vegas case where the FBI cut the internet to a hotel villa, and then posed as repairmen in order to gain access to that villa to conduct a search. Yesterday the Feds filed their court brief arguing that the search and subsequent arrests were valid.

The Feds’ argument boils down to two main points:

  1. They are allowed to use deception in order to gain access and perform a search; and
  2. Even if they hadn’t posed as repairmen to search the villa, they still had enough evidence to go ahead and get a search warrant.

Are the police allowed to use deception in order to search?

Yes, they are. In Lewis v. United States, 385 U.S. 206 (1966) the Supreme Court upheld a search where an undercover officer posed as a drug buyer in order to search a home. In United States v. Wagner, 884 F.2d 1090 (8th Cir. 1989) the 8th Circuit upheld a search where the undercover officer posed as a UPS deliveryman.

But the real question here isn’t whether the police can use deception, it’s whether they can cause an event that then causes a person to give the undercover officer access thinking they are there to fix it. Here’s the distinction: inviting a third party into your home on your own initiative should be viewed differently than the police cutting off your power and then posing as electricians in order to get inside your house. It’s worth noting here that the Feds were very explicit in saying that even though they cut off DSL service to the villa, wireless access was still available.

In this case it probably won’t matter:

Even if the court here draws that distinction, I’m not sure it will matter. While the Feds’ argument that they didn’t need to enter the villa posing as repairmen in order to get enough evidence for a warrant begs the question of why they bothered, based on the factual scenario laid out in their filing, it seems that they had enough information to go ahead and get a warrant.

This gives the court an “out” – the court can rule that without the search there was enough for a warrant, so the issues raised by the search don’t need to be addressed. Courts and judges often look for this type of “out” in order to prevent being overturned on appeal.

My guess is that the court will take the out, and the issue will remain unresolved. Right now we will wait to see what happens.