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FBI Can't Cut DSL Line, Pose as Repairmen to Conduct Search

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By Mark Wilson, Esq. on April 20, 2015 3:52 PM

Last year, we brought you the bizarre story of an FBI sting into illegal gambling at some of the private villas at Caesar's Palace in Las Vegas. But how did the FBI get the probable cause necessary to support search warrants leading to their arrest?

Illegally, according to lawyer and SCOTUSblog co-founder Tom Goldstein, who represents Wei Seng Phua, one of the defendants. Last week, a federal district court agreed with Goldstein that  evidence obtained from the illegal search must be suppressed.

We're Here to Fix Your DSL, We Swear

The FBI suspected Phua and others were operating an illegal betting ring from their swanky Caesar's Palace villas, but they couldn't prove it. They hit upon a genius idea: They convinced Caesar's Palace to deactivate the DSL Internet connection to the villas, the occupants called Caesar's employees to come investigate the outage, and the FBI posed as technicians to conduct a covert search of the villas.

That conduct doesn't square with the Fourth Amendment, wrote Judge Andrew Gordon, granting Phua's motion to suppress. Law enforcement can't create a need to grant consent for a third party to enter a home, then use that consent to conduct covert surveillance. "Authorities would need only to disrupt phone, [I]nternet, 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," Gordon wrote.

The issue was contentious because law enforcement has never done something like this before. Gordon identified three strains of case law governing when police can use deception to get consent to enter a home. In the first set of cases, police can "misrepresent that they are involved in criminal activity to obtain valid consent." In the second set, police cannot "deceive the occupants into believing that an emergency or life-threatening situation exists," like a potential gas leak that needs to be checked by gas company technicians (who are really police).

The third strain of cases, Gordon said, was most analogous to the facts of Phua's case. Police can claim to be private citizens with lawful business, but they can't "[pose] as someone with at least some authority to enter the residence, such as a landlord."

A Win, Theoretically

Here, while DSL is admittedly not an "essential" service like electricity or water, the government itself manufactured the need for Phua to call a technician, and Phua couldn't call just any technician -- it had to be a Caesar's employee. And given the ubiquity of telephone, cable, and Internet services, "[m]ost reasonable people would invite a third party repair person into their home if they were led to believe it was necessary to fix a problem with those services" even if they wouldn't let police in.

While the order represents a victory for privacy, Phua may have a harder road ahead: Gordon dismissed only that evidence found in his villa, which was subject to the FBI ruse, and not evidence from two other villas. While that evidence would normally be suppressed as fruit of the poisonous tree, because Phua didn't occupy those villas, he didn't have standing to challenge any evidence illegally obtained from them.

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