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FBI Agents Cut DSL, Posed as Repairmen to Conduct Search: Motion

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By Mark Wilson, Esq. on October 29, 2014 12:28 PM

Las Vegas is set to become the focal point for a Fourth Amendment issue that's as brazen as it is kooky.

Suspecting several high rollers staying at Caesars Palace were engaged in an illegal bookmaking operation, the feds allegedly cut off Internet access to their $25,000-per-night private villa, then posed as repairmen to enter the villa, snoop around, and use that snooping as the basis for a subsequent search warrant.

There's Something Missing From This Affidavit

Much of that is curiously missing from the federal criminal complaint filed against Wei Seng Phua and seven others, which says only that the occupants of one of the villas called a technician to repair DSL lines in the villa. The technician, of course, was an undercover FBI agent. According to Tom Goldstein, one of the defendants' attorneys (and the co-founder of SCOTUSblog), the government conveniently omitted the fact it had downed the Internet connection so that the villa's occupants would call repair people, who were undercover agents.

According to the defense motion to suppress evidence, they "have been unable to find a single time in which any law enforcement agency in the country has ever resorted to using a scheme like this one -- terminating a service to a residence in order to deceive the occupants into calling for assistance. Unsurprisingly, every court to consider anything remotely similar has found it flagrantly unconstitutional."

Goldstein says that the FBI's actions were so brazen that they themselves knew what they were doing was wrong. This, he suggests, is why probable cause affidavits don't mention the scheme, and also why, in recordings the defense obtained of the undercover surveillance, agents caution each other that "these things are still on just so you guys know."

There's Deception, and Then There's Deception

The 1974 Supreme Court opinion in Lewis v. United States reaffirmed the notion that police can use deception to search or arrest. In Lewis, an undercover officer claimed he wanted to buy marijuana. The officer entered the suspect's home, bought the marijuana, and left. The suspect claimed a warrant was necessary to enter the home at all. But the Court said the suspect willingly invited the officer in, meaning any interaction was consensual.

The Court was careful, however, to note, "Of course, this does not mean that, whenever entry is obtained by invitation and the locus is characterized as a place of business, an agent is authorized to conduct a general search for incriminating materials."

None of the case law would seem to support the government's actions. But for the government shutting off the Internet connection, the inhabitants of the villa wouldn't have called the undercover agents masquerading as repairmen. Indeed, the defense motion asserts, even an Assistant U.S. Attorney advised the FBI agents not to go through with their plan. This will, however, become an interesting issue that the Supreme Court could deal with in a year or so: Can police themselves take actions that would force a reasonable person to give consent to enter to undercover agents?

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