Hacker News Reader

Comment by thrownaway2424 | Hacker News Reader

The only legally relevant part of this story isn't discussed in the article: did the occupants of the hotel room consent to have the agents enter the room, or didn't they? This is the only thing that will matter in court. If they did, then it doesn't matter that the cops employed a ruse. The police use ruses and tricks all the time. You could argue that it wasn't within their rights to sever the internet connection in the first place, but you'd have to contend with several arguments there, such as internet being or not being a utility, or the operators of the hotel having the unilateral right to cut it off if they wanted to.

View on HN

Can you cite anything to support this? I find it hard to believe that a court would completely ignore the basis on which consent was given. For example:

"The Fourth and Fourteenth Amendments of the United States Constitution require that a consent to a search not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting "consent" would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed" [1]

...which seems to indicate that the same notion of "fruit of the poisonous" tree as regards evidence applies equally to consent to search.

[1] Schneckloth v. Bustamonte, 412 U.S. 218 (U.S. 1973)

I don't have the cite on me but there's a 1970 case in California where the cops knocked on the door, the occupant of the house told them to come in, they came in and arrested everybody (no warrant). Court found for the people.

Anyway I'm not even saying that the FBI will definitely prevail here. I am saying that the whole thing will hinge on the question of consent. Your rebuttal seems spurious because you cannot have been coerced by someone if you thought they were the cable repairman. That's incompatible with the rest of the defense.

I had a weird conversation with a cop last year - basically, they responded very late to a domestic disturbance, that being, one of the people staying in my spare room until they got their shit together decided to attack me. The other person called the cops while I calmed the first person down, which fortunately happened before the cops showed up.

I answer the door, and am asked if everything is okay, and so on. I probably look very shaken because I had to disarm someone not 5 minutes earlier, so they insist on coming in. What I told them is that they put me in a bind, because on one hand, I was told that it is customary in the US to refuse entry to law enforcement unless you specifically called them, on the other hand, I have taken a vow of hospitality, so they are welcome to a warm meal, but would they mind having it served on the porch?

They saw some Jehova's Witness literature on a table behind me and figured I was some religious crazy, said they're not allowed to accept food on duty but thanks anyway, and left.

All this because the person who tried to stab me is transgendered, and I didn't think spending any time in a jail would have been safe for her.

Sorry for the irrelevant story, I just had to let it out.

>I don't have the cite on me but there's a 1970 case in California where the cops knocked on the door, the occupant of the house told them to come in, they came in and arrested everybody (no warrant).

What does that have to do with anything? It isn't relevant here.

>I am saying that the whole thing will hinge on the question of consent.

No it won't. I posted this above, but this is a good overview - http://policelink.monster.com/training/articles/1911-lying-t...

>[In] Frazier v. Cupp, 394 U.S. 731, 1969 the Supreme Court ruled that [the] use of trickery and deceit can be permissible (depending on the totality of circumstances) provided that it does not shock the conscience of the court or community.

It isn't about consent but if the FBI's trickery could/did "shock the conscience of the court or community."

Take it from someone who worked for the police: What they did is illegal, period. Cops don't do this kind of thing because once it comes out (and it inevitably does) it destroys their case against the defendant.

You may be thinking of cops lying to a suspect during an interrogation, which they are allowed to do, but at that point the suspect has the opportunity to invoke his Miranda rights/5th amendment right to not incriminate himself, as he is being detained and questioned and knows the cops are who they say they are. When initially confronted by cops disguised as service workers asking for entry to his house, he has no way to know that they are cops and therefore cannot legally consent to any evidence gathering.

If they conducted a de facto search of the room then they broke the law, no matter what they called it. They could have dressed as plumbers, maids or pizza delivery men - that doesn't change the fact that they conducted a search without a warrant.

It's the cutting off of a service to serve as a pretext that's problematic. If they dress up as pizza delivery men and are invited inside, even without a warrant, that's perfectly OK - the law is not meant to protect criminals from their own stupidity.

I wouldn't say that's okay.

If they want to actually deliver some pizza, perhaps. But the standards of deception should be very high for law enforcement.

Consider any undercover operation - they're always pretending to be a 'pizza man' of some kind.

The rules are in place to prevent entrapment, which is the solicitation of an illegal act. Cutting off your power - while mean and objectionable, doesn't seem to be covered under entrapment.

Are you at least getting your pizza?

http://koin.com/2014/09/22/portland-police-protect-and-serve...

I think cutting off the power (or network connectivity or water or whatever) without permission or lawful non-enforcement-related-purpose might itself be criminal, and could easily be argued as a form of coercion.

An undercover cop is actually doing the thing. They are not undercover as a guy in a pizza costume with no pizza.

Am I mistaken?

Well why would you invite a pizza delivery guy in without any pizza? Actually now that I think about it I don't ever recall inviting a pizza delivery guy into a dwelling as opposed to paying at the door, so that wasn't a very good example. But I thought your objection was 'not really a pizza delivery person' as opposed to 'not actually carrying pizza'. It sounds like you would be OK with it as long as you got lunch out of it :-)

I am far more okay with an agent with the skills to address the problem showing up and fixing a naturally occurring problem, than I am with an agent pretending to fix a problem they created. Of course it's easier to find an agent with the skills to address "no pizza" than "no internet". And "more okay" doesn't mean "okay" - I've not thought sufficiently deeply to confidently say which side of the line that falls on, but I'm at least a little leery of it.

Well the point is I am much more comfortable with the idea of them infiltrating something than with the idea of them being total impostors.

Not entirely comfortable, though.

Wrong. There are specific rules in place about when the cops can deceive a suspect and when they must affirm their intent to search. This[1] breaks it down nicely, but in short, a law enforcement officer, even "undercover", cannot use illegal means to obtain evidence without poisoning the entire chain:

"Most Americans understand that police officers sometimes need a warrant to search for information believed to be related to criminal activity. They may also be aware that, according to the exclusionary rule, evidence gained in an illegal search cannot be used to convict someone of a crime. However, in many circumstances the police do not need a warrant for a search, or for the evidence gained from a search, to be legal and used in court.

In each of the situations below, a police officer does not need a search warrant to conduct a search.

- If an individual voluntarily consents (agrees to) a search, no warrant is needed. The key question in this kind of search is what counts as a voluntary agreement? In order for a consent search to be legal, the individual must be in control of the area to be searched and cannot have been pressured or tricked into agreeing to the search.

- A police officer that spots something in plain view does not need a search warrant to seize the object. In order for a plain view search to be legal, the officer must be in a place he has the right to be in and the object he seizes must be plainly visible in this location.

- If a suspect has been legally arrested, the police may search the defendant and the area within the defendant's immediate control. In a search incident to arrest no warrant is necessary as long as a spatial relationship exists between the defendant and the object.

- Following an arrest, the police may make a protective sweep search if they reasonably believe that a dangerous accomplice may be hiding in an area near where the defendant was arrested. To do so, police are allowed to walk through a residence and complete a "cursory visual inspection" without a warrant. If evidence of or related to a criminal activity is in plain view during the search, the evidence may be legally seized.

- If the police stop a car based on probable cause, they can search for objects related to the reason for the stop without obtaining a warrant. During a car search, the police are also allowed to frisk the subject for weapons, even without a warrant if they have reasonable suspicion that the suspects may be involved in illegal activities."

[1] http://www.streetlaw.org/en/Page/342/When_is_a_Search_Warran...

Reply on news.ycombinator.com