Judge Rules Feds Can’t Cut Off Internet to Conduct a Warrantless Search:
Remember those guys who were running an illegal internet gambling ring from a Las Vegas hotel villa? If you do, you’ll also remember that the feds tried several times to get into the villa to see what they were doing, eventually posing as repairmen after cutting off the internet access. The ploy worked, and they were able to get inside the villa and gather enough evidence to get a warrant and arrest the people inside. The defendants then moved to exclude any evidence the feds got as a result of their search, arguing that they got it as a result of an illegal search. The feds countered that their search was lawful, and that they would’ve been able to get a warrant anyway.
I speculated before that the judge would probably side with the feds on this one because the argument that they would’ve been able to get a warrant anyway gave the judge an “out” from ruling on the mechanics of the search. I was wrong. Five days ago the judge ruled that the evidence the feds got as a result of their ploy should be suppressed.
Interestingly the feds tried to argue a distinction between “essential” and “non-essential” services – basically saying that they can’t cut off the power or water to a place when posing as repairmen trying to gain entry, but they can cut off something “non-essential” like internet because it doesn’t create a safety issue. The judge rejected this argument:
Allowing law enforcement to engage in this conduct would eviscerate the warrant requirement. Authorities would need only to disrupt phone, internet, cable, or other “non-essential” service and then pose as technicians to gain warrantless entry to the vast majority of homes, hotel rooms, and similarly protected premises across America. Permitting the government to engage in this conduct is inconsistent with the narrow consent exception to the Fourth Amendment’s warrant requirement.
I don’t know about you, but if I’m in a place with no internet connection my palms start sweating (a primary symptom of being under 40). But the judge here didn’t go so far as to declare internet an essential service. Instead he ruled that under the “totality of the circumstances” (viewing everything together) the defendant’s consent to the warrantless search wasn’t voluntary.
In order to get inside someone’s house or hotel room to conduct a voluntary search, officers need consent. They can get consent either voluntarily (“hey can we come in and search for illegal stuff?” “yeah sure come on in”) or through deception. Before this case, the courts put “consent by deception” cases into three categories:
1. Getting consent by posing as other criminals or friends of other criminals in order to do something illegal:
This deals with situations such as where officers pose as drug buyers in order to get inside a dealer’s house and buy drugs / conduct a search. Courts have ruled that this kind of search is ok.
2. Getting consent by making the defendant believe a life-threatening situation or an emergency exists:
Here’s an example: the cops create a “missing child” flyer and ask to enter someone’s house to conduct a search by saying the child was seen in their yard. Courts have said these searches are not ok, because the officers are making the defendant feel like they don’t have a choice in the face of the emergency.
3. Getting consent by posing as someone else, such as a potential home buyer, or someone with lawful authority to enter the premises:
Courts have ruled that these searches can be illegal if the officers pose as someone with the lawful authority to enter the premises technically without consent, such as the landlord or someone working for the landlord.
The judge in this case had trouble fitting this new scenario into one of these three categories, ultimately saying it was closest to number 3. Maybe the courts will create a new category of “consent by deception,” or maybe the feds will stop trying to use this method to get inside homes and hotel rooms to poke around.
I would guarantee that this case will be appealed, and then appealed again until the Supreme Court has the final say. But don’t expect them to rule that internet access is an essential service – some of the Justices are still confused by how cable tv actually works, and narrowly avoided declaring VCR’s illegal. Fun times.