When Can the Police Lie? The Limits of Law Enforcement Officers' Use of Deception in Obtaining Consent to Search a Home.

AuthorRicciuti, Michael D.

    It is clear that the home is "first among equals" of private locations--where Fourth Amendment privacy rights are at their zenith (1) --and that warrantless searches of a home are presumptively unconstitutional. (2) The law is not as clear as one might expect, however, in governing when law enforcement officers can lie to get inside a home for the purpose of gathering evidence. Often, courts rely on consent as an exception to the Fourth Amendment's protections. If a citizen validly consents to a residential search, the police can enter and search that home as extensively as that consent permits. (3) But what if officers lie about their identity as officers when seeking consent? Leaving aside when police act in an undercover capacity, (4) can a police officer, without identifying as a police officer or appearing as one, enter a home or its curtilage to gather evidence based on consent? When would consent under those circumstances be invalid under federal law? For instance, can a police officer pose as a utility worker, enter the curtilage of a home, knock on the door, seek and obtain consent to enter the home to pursue a fictitious "gas leak," and thereafter use information gathered within the home as evidence against the homeowner in a criminal case? Would the lack of disclosure of the utility worker as a police officer undermine the validity of the consent? If so, would permitting use of the false pretense significantly undercut the privacy of the home, reducing its status to something less than the "first among equals" for Fourth Amendment purposes? What if the subject of the lie is less alarming than a gas leak? Would the lie be any less objectionable under the Constitution?

    Some lower courts have concluded that such ruses, whether of a dangerous gas leak (5) or something nonthreatening, (6) vitiate consent, but the Supreme Court has not spoken to the issue. The lack of clarity on such a fundamental principle is troubling. Resolving this issue would not only further define the scope of privacy in the home, but it could also establish a useful guide when non-undercover police conceal themselves to "knock" on the electronic equivalent of a door and request consent to access private information on social media and other electronic platforms; for example, by posing as "friends" to secure waiver of privacy in a virtual environment.

    This Article argues that when the police, seeking to enter a home and thereby gather evidence, conceal their identity as officers without engaging in undercover criminal activity, consent cannot itself justify their entry into the home or onto its curtilage. When the police enter the curtilage of a home with the sole purpose of conducting a search, they need a warrant or a recognized exigency; (7) an undisclosed police officer in a non-undercover role thus generally cannot enter the curtilage at all to seek such consent. In any event, the concealment of the officer's identity should invalidate any consent a disguised police officer in a non-undercover role obtains.

    This reasoning is consistent with long-standing principles governing consent and with recent Supreme Court cases holding that certain police investigative tactics involving dwellings constitute searches or seizures under the Fourth Amendment. (8) Further, allowing police in non-undercover scenarios to pose as civilians to seek consent to enter a home poses serious social costs--it may undermine public confidence in the police, specifically when admitting non-officers into the home, an increasingly common occurrence. Moreover, eliminating consent as a justification for warrantless searches in non-undercover circumstances does not undermine police use of ruses in two distinguishable circumstances: first, when police enter a home with a warrant and the ruse is not designed to authorize the entry, but rather to permit the police to minimize violence or other adverse effects of the execution of the warrant; (9) and second, when police conceal themselves while acting in an undercover capacity, posing as a criminal confederate, and obtain consent to enter a private home to pursue otherwise illegal activity. (10)

    This Article first reviews the core privacy principles that protect a home from warrantless searches, as well as the development of property rights that overlay privacy rights protecting the home and its curtilage. (11) It then discusses the principle of consent and the ways in which the police may seek consent to justify entry into the home or its curtilage. (12) This Article then examines how developments in electronic privacy may limit police intrusion into private electronic spaces. (13) This Article concludes that consent does not justify police access to homes (and, likely, certain private electronic accounts) if the officers not acting in an undercover capacity seek access without disclosing their identities as police and without seeking to engage the defendant in illegal activities as part of an investigative plan. (14)


    The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." (15) For decades, Justice Harlan's two-pronged test for determining what is private, and therefore within the scope of the Fourth Amendment--which he articulated in his concurring opinion in Katz v. United States (16)--has guided Fourth Amendment jurisprudence: "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'" (17) If both prongs are met, the Fourth Amendment protects the interest. (18) Embedded in this definition is the concept of waiver--that a claim to an expectation of privacy, and society's assessment of its reasonableness, are subject to intentional or unintentional waiver by the rights holder. (19) Justice Harlan made this point in his concurrence, expressing that while the home is a place of privacy, those items and expressions exposed to others in "plain view" are not protected because there is no intention to keep private what has been exhibited. (20)

    Under this definition, one who keeps private matters in a protected place, like a home, could still forfeit the privacy protection over that matter by removing the private matter from the protected place and exposing it to "outsiders." Even if the rights holder subjectively believes the matter is private, conducting such private business in a nonprivate place may nevertheless forfeit the Fourth Amendment's protections. (21) In either event, the expectation of privacy may become untenable, society may not recognize the privacy claim as reasonable, or both; consequently, the Fourth Amendment would not protect the interest.

    In 2012, the Court expanded the scope of interests protected under the Fourth Amendment, holding that property interests are also protected under the Constitution. In United States v. Jones, the Court addressed whether the government, acting without a valid warrant--they had obtained one, but it expired--violated the Fourth Amendment rights of the vehicle's owner when it attached a global positioning system (GPS) device, which it monitored for almost a month, to the underside of a vehicle. (22) The Court held that it did without deciding the case on Katz grounds, sidestepping the question of whether the owner of the car held a legitimate expectation of privacy in the underside of his car or in the travel of the car on the public roads. (23) Justice Scalia, writing for the Court, instead resurrected an old concept, physical trespass on private property, to hold that the government intruded on Jones's property rights in the car--an interest protected under the Fourth Amendment independent from the Katz privacy interest. (24) Specifically, by attaching the device to the owner's car, the government physically intruded on an effect--the car--and thereby the physical trespass violated the owner's Fourth Amendment rights. (25)

    The Court next applied Jones to expand the protection of the home in Florida v. Jardines. (26) In doing so, it limited a case decided two years prior, Kentucky v. King, which had allowed the police greater freedom to search a home. In King, police officers had arranged a "controlled buy" of crack cocaine outside an apartment complex. (27) After the buy occurred, the seller entered the breezeway of the apartment complex, but the police failed to observe which of two apartments the suspect had entered. (28) Smelling marijuana smoke emanating from one of the apartments, however, the officers approached that door, "banged on [it] ... 'as loud as [they] could,'" and loudly announced themselves. (29) After knocking, the officers heard sounds consistent with evidence destruction, announced their imminent entry, and kicked in the door, finding incriminating drug evidence inside, but not the alleged crack dealer they were after. (30)

    Upholding the police action, Justice Alito's decision for the Court held the exigent circumstances justified the entry and rejected the argument that warrantless entry to prevent evidence destruction was an unconstitutional "police-created exigency." (31) The Court held that the exigent circumstances rule justifies a warrantless search when the police act reasonably and do not create the exigency with conduct that itself violates the Fourth Amendment. (32) In reaching this result, the Court rejected analyses that examined the officers' intent or alleged bad faith and instead focused exclusively on the objective facts to justify police action. (33) The Court also rejected the reasoning applied by lower courts that police in circumstances like in King need probable cause before knocking on the door of a home; (34) instead, the Court reasoned that requiring a warrant or consent...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT