The Limits of Police Subterfuge

"The next time you call for assistance because the Internet service in your home is not working, the 'technician' who comes to your door may actually be an undercover government agent. He will have secretly disconnected the service, knowing that you will naturally call for help and -- ­when he shows up at your door, impersonating a technician­ -- let him in. He will walk through each room of your house, claiming to diagnose the problem. Actually, he will be videotaping everything (and everyone) inside. He will have no reason to suspect you have broken the law, much less probable cause to obtain a search warrant. But that makes no difference, because by letting him in, you will have 'consented' to an intrusive search of your home."

This chilling scenario is the first paragraph of a motion to suppress evidence gathered by the police in exactly this manner, from a hotel room. Unbelievably, this isn't a story from some totalitarian government on the other side of an ocean. This happened in the United States, and by the FBI. Eventually -- I'm sure there will be appeals -- higher U.S. courts will decide whether this sort of practice is legal. If it is, the country will slide even further into a society where the police have even more unchecked power than they already possess.

The facts are these. In June, Two wealthy Macau residents stayed at Caesar's Palace in Las Vegas. The hotel suspected that they were running an illegal gambling operation out of their room. They enlisted the police and the FBI, but could not provide enough evidence for them to get a warrant. So instead they repeatedly cut the guests' Internet connection. When the guests complained to the hotel, FBI agents wearing hidden cameras and recorders pretended to be Internet repair technicians and convinced the guests to let them in. They filmed and recorded everything under the pretense of fixing the Internet, and then used the information collected from that to get an actual search warrant. To make matters even worse, they lied to the judge about how they got their evidence.

The FBI claims that their actions are no different from any conventional sting operation. For example, an undercover policeman can legitimately look around and report on what he sees when he invited into a suspect's home under the pretext of trying to buy drugs. But there are two very important differences: one of consent, and the other of trust. The former is easier to see in this specific instance, but the latter is much more important for society.

You can't give consent to something you don't know and understand. The FBI agents did not enter the hotel room under the pretext of making an illegal bet. They entered under a false pretext, and relied on that for consent of their true mission. That makes things different. The occupants of the hotel room didn't realize who they were giving access to, and they didn't know their intentions. The FBI knew this would be a problem. According to the New York Times, "a federal prosecutor had initially warned the agents not to use trickery because of the 'consent issue.' In fact, a previous ruse by agents had failed when a person in one of the rooms refused to let them in." Claiming that a person granting an Internet technician access is consenting to a police search makes no sense, and is no different than one of those "click through" Internet license agreements that you didn't read saying one thing and while meaning another. It's not consent in any meaningful sense of the term.

Far more important is the matter of trust. Trust is central to how a society functions. No one, not even the most hardened survivalists who live in backwoods log cabins, can do everything by themselves. Humans need help from each other, and most of us need a lot of help from each other. And that requires trust. Many Americans' homes, for example, are filled with systems that require outside technical expertise when they break: phone, cable, Internet, power, heat, water. Citizens need to trust each other enough to give them access to their hotel rooms, their homes, their cars, their person. Americans simply can't live any other way.

It cannot be that every time someone allows one of those technicians into our homes they are consenting to a police search. Again from the motion to suppress: "Our lives cannot be private -- ­and our personal relationships intimate­ -- if each physical connection that links our homes to the outside world doubles as a ready-made excuse for the government to conduct a secret, suspicionless, warrantless search." The resultant breakdown in trust would be catastrophic. People would not be able to get the assistance they need. Legitimate servicemen would find it much harder to do their job. Everyone would suffer.

It all comes back to the warrant. Through warrants, Americans legitimately grant the police an incredible level of access into our personal lives. This is a reasonable choice because the police need this access in order to solve crimes. But to protect ordinary citizens, the law requires the police to go before a neutral third party and convince them that they have a legitimate reason to demand that access. That neutral third party, a judge, then issues the warrant when he or she is convinced. This check on the police's power is for Americans' security, and is an important part of the Constitution.

In recent years, the FBI has been pushing the boundaries of its warrantless investigative powers in disturbing and dangerous ways. It collects phone-call records of millions of innocent people. It uses hacking tools against unknown individuals without warrants. It impersonates legitimate news sites. If the lower court sanctions this particular FBI subterfuge, the matter needs to be taken up -- ­and reversed­ -- by the Supreme Court.

This essay previously appeared in The Atlantic.

EDITED TO ADD (4/24/2015): A federal court has ruled that the FBI cannot do this.

Posted on December 18, 2014 at 6:57 AM • 60 Comments

Comments

PeterDecember 18, 2014 7:41 AM

These cops committed perjury when they lied to the judge and should be sentenced for that.

That, however, does not fix the problem of cops entering a private place under false pretense, because next time the cops will simply tell the truth to the judge, but still lie about their profession when asking permission to enter a private place to gather evidence...

This can only be fixed if, in addition to prosecuting cops that lie to the court, courts start throwing out cases where such methods have been used.

ChrisDecember 18, 2014 7:41 AM

Why pose as a service technician at all? An FBI agent may pose as cleaning personnell and enter all hotel rooms as part of his "job", even without presence of the hotel guest.

jbmartin6December 18, 2014 7:53 AM

"they lied to the judge about how they got their evidence" That tells you all you need to know.

Jim AndrakakisDecember 18, 2014 7:57 AM

@Jens Oliver Meiert "Once the police needs to be policed, a state has failed."

Although I agree with the spirit, I disagree with the statement itself. The police -and the goverment in general- ALWAYS needs to be policed. This is the role of the judicial system, the idea behind the separation of powers.

It is this policing exactly that is failing in the U.S. (though the US is by no means alone in this).

vas pupDecember 18, 2014 9:30 AM

@Bruce:"I'm sure there will be appeals -- higher U.S. courts will decide whether this sort of practice is legal." I bet the same solution (in favor of LEA ) will be as in case decided by SCOTUS and related to one-side right of LEAs lie to your, but for you lie to them is a crime. That is absolutely wrong legal construction. First, it contradicts the idea of reestablishing trust between society and police(LEAs). You could not build trust on lie. Second, you could be criminal responsible for telling lies under oath ONLY! The construction that you under oath by default when communicating to police/LEA is ill founded. I've already commented on this case in this blog before - no reason to repeat it.Third, if this case was related to any issue when life of any person was under real danger (kidnapping, terrorism, hostage situation you name it), and result is at least one innocent life being saved, I am with FBI 100% regardless what I stated above, because balance would be on their side absolutely. My humble opinion.

ATNDecember 18, 2014 9:33 AM

> filled with systems that require outside technical expertise when they break: phone, cable, Internet, power, heat, water.

You could add, filled with materials which may burn, and require firemen in an emergency.
FBI could create some burned smell and pretend to be fireman (or not lie: be employed as fireman 1 hour a month). Shall you trust a fireman at your door when you smell burn?

Ian SturdyDecember 18, 2014 10:05 AM

Also, by what authority can FBI agents disconnect arbitrary peoples' internet? The fact that that act is not even getting attention worries me almost as much as the bizarre standard of consent.

bitstrongDecember 18, 2014 10:09 AM

I saw that! It started Bradley Cooper, Jennifer Lawrence, Christian Bale and Amy Adams.

RonDecember 18, 2014 10:30 AM

This article missed a very significant point. It's the American way; without sufficient evidence for a warrant, only those with lots of money have the influence to have such subterfuge initiated by local and/or federal law enforcement agencies. We'd have a truly surprising story if it happened the other way around.

SkepticalDecember 18, 2014 10:42 AM


I like the distinction you've drawn between consent and trust, and the analysis of each is interesting.

The consent issue is really the legal issue at stake. While the essay's analysis is logically valid, it begins from false premises.

You can't give consent to something you don't know and understand. The FBI agents did not enter the hotel room under the pretext of making an illegal bet. They entered under a false pretext, and relied on that for consent of their true mission. That makes things different. The occupants of the hotel room didn't realize who they were giving access to, and they didn't know their intentions. [...] Claiming that a person granting an Internet technician access is consenting to a police search makes no sense, and is no different than one of those "click through" Internet license agreements that you didn't read saying one thing and while meaning another. It's not consent in any meaningful sense of the term.

The best way to understand the issue here is by analogy to the third-party doctrine - the idea that if you disclose information to a third party (outside of some exceptions), you lose a reasonable expectation of privacy as to that information.

The issue is not whether the defendants consented to a police search - of course they did not. The issue instead is whether they consented to a third-party entering the hotel rooms and viewing whatever it is that the third-party viewed. If they did, then there is no search under the 4th Amendment, because you do not retain a reasonable expectation of privacy with respect to what you invite a technician (or plumber) into your home to see. If the plumber turns out to be a cop, and you keep your bricks of cocaine and C4 next to that darn leaky pipe, well, tough luck when the cop/plumber sees it (though on the positive side, in one's new residence one will be entitled to working plumbing).

This has all been firm law for many decades.

There may be some factual elements of the defendants' case that change the result of this particular case, though. If the undercover agents exceeded the scope of their permission as technicians (an extreme example would be one of them picking the lock to a closed door, entering, and then picking the lock on a closed drawer, opening the drawer, and then reading papers inside), then that portion of their actions would become a "search" and the lack of a warrant or exigent circumstances would be a problem.

That the hotel cut off internet service to cause the defendants to ask for a technician will be unlikely to alter a finding that they consented to the technician entering the hotel room.

I made an analogy to the third party doctrine earlier, because I think it bears upon the really interesting part of this essay, on trust.

Trust is central to how a society functions. No one, not even the most hardened survivalists who live in backwoods log cabins, can do everything by themselves. Humans need help from each other, and most of us need a lot of help from each other. And that requires trust. Many Americans' homes, for example, are filled with systems that require outside technical expertise when they break: phone, cable, Internet, power, heat, water. Citizens need to trust each other enough to give them access to their hotel rooms, their homes, their cars, their person. Americans simply can't live any other way.

I agree, but Americans have lived in a society where police can impersonate repairmen for a very long time. Of course, it's also the case of course that Americans have lived with the third party doctrine for a long time, and there is a chance that that doctrine may be altered as technology has changed the implications of it.

But by contrast, technology hasn't changed the implications of the law allowing police to impersonate repairmen. We understand that the guy we have into our home to fix the cable isn't our doctor or priest, and that while we expect him not to wander into areas where he is not invited, our conversations with him aren't protected by special legal privileges, and what he observes isn't protected by special legal privileges. Technology has not made it feasible for the police to impersonate repairmen on a scale previously impossible, in the way that information technology has dramatically expanded the power that results from the third party doctrine.

So I'm not sure I see anything in this case that should alter existing levels of trust in having technicians into one's home to fix or install something. Personally, I extend such technicians a very limited amount of trust, as I suspect most people do.

65535December 18, 2014 10:59 AM

It is clear that allowing the military-industrial complex unlimited access to civilian homes, communications and transportation arteries, is against everything in the US Constitution.

When is a major politician [the President of the USA] or Judge going to put a stop to this abuse?

We have a huge military-industrial complex that has run amuck. This must be stopped.

ChelloveckDecember 18, 2014 11:13 AM

@Chris: I suspect that by necessitating a repair call the authorities were trying to strengthen the case for entering the room. Entry by housekeeping is uninvited, especially if they had a "Do Not Disturb" sign on the door. On the other hand, a repair call is an explicit invitation to enter the room. I'm sure the police/FBI have a tape somewhere of the suspects saying, "You're gosh-darned right I want you to send someone up to fix it, and pronto!" Rules for entry into one's residence seem to be the same for both police and vampires.

BobDecember 18, 2014 12:15 PM

"Unbelievably, this isn't a story from some totalitarian government on the other side of an ocean. This happened in the United States"

Whenever these type of stories comes up it is always the United States, why the surprise?

(ಠ_ಠ)December 18, 2014 12:19 PM

It would be great to have the populace sufficiently educated on jury nullification that we could trust juries to refuse to convict people arrested under false pretenses, or any time the police break the law that restrains them, or when they've trampled someone's rights.

e"December 18, 2014 12:49 PM

ಠ_ಠ wins the thread. Organized jury nullification is exactly what it's going to take to stop criminality in so-called law enforcement. But another thing that's needed is state compliance with the law against coerced confessions, because the extortion racket known as plea bargaining denies state-targeted persons recourse to a jury. Judges are brainwashed to keep them ignorant of this crucial aspect of the law, so you'll need years of civil resistance, backed by international pressure (such as the UPR, the HRC, and the Special Rapporteur on the Independence of Judges and Lawyers.)

DaveDecember 18, 2014 1:20 PM

If someone gives you money because you lied about who you are, the courts will rule that is theft.

If someone has sex with you because you lied about who you are, the courts will rule that is rape.

If a policeman gets "consent" to gather evidence without a warrant because he lied about who he was, the courts should throw out that evidence (and possibly take some disciplinary action).

JeremyDecember 18, 2014 1:25 PM

This blog previously covered this incident on Nov 26. Now, as then, I would like to know (1) isn't it illegal to intentionally sabotage someone's utilities?, and (2) if so, doesn't that mean all evidence stemming from that can be excluded under the "fruit of a poisonous tree" doctrine, EVEN IF the consent was valid?

I'd be awfully concerned about the police having the power to disconnect my utilities on a whim NO MATTER WHAT they were planning to do after that.

ZithDecember 18, 2014 2:14 PM

One sentence here sets off my internal alarms:

"[Search warrants are] a reasonable choice because the police need this access in order to solve crimes."

The needs of the police are never of themselves a reason to grant them power. I'm sure that's not what you meant, Bruce, but we can't afford to slip up on this one when others are truly arguing in that fashion. We accept the tradeoffs in the warrant system because the overall good to society is maintained - mostly thanks to the various securities built into the warrant system - not simply because we think the police need to look into our personal affairs so the bad guys can be caught.

LessThanObviousDecember 18, 2014 2:23 PM

The sneaky and completely unjustified tactics used for getting the evidence aside, this has come up multiple times now from this case and in the incidents of parallel construction and I'm sure many other cases where as you say "To make matters even worse, they lied to the judge about how they got their evidence." I seems to me that law enforcement lying to a judge or DA about how evidence was obtained is more troubling than any other detail of such cases. I really fail to see how that perversion of justice wouldn't be a criminal act or at a minimum, grounds for termination for misconduct.

How can we possibly trust in the justice system if law enforcement is lying to judges and DAs about how they came to obtain evidence. The determination of whether evidence is admissible is as much about the constitutionality of how it was obtained as it is about its content.

DanielDecember 18, 2014 2:25 PM

In a shocking turn of events I find myself in agreement with @Skeptical. He's right. Well, he's wrong but he's right. I think the third party doctrine is a great evil, has been a great evil, and will continue to be a great evil so long as it persists. Yet the third party doctrine is the law and has been for many decades.

However, he writes. "but Americans have lived in a society where police can impersonate repairmen for a very long time." This isn't a legal argument. It's like claiming that because a child has lived with child abuse for their entire childhood ergo child abuse must be OK.

Bruce writes, "Claiming that a person granting an Internet technician access is consenting to a police search makes no sense, and is no different than one of those "click through" Internet license agreements that you didn't read saying one thing and while meaning another. It's not consent in any meaningful sense of the term.

And yet courts have upheld such "click through" agreements to be valid. It's a legal fiction, to be sure, but a fiction with the force of law.

vas pupDecember 18, 2014 2:26 PM

e" • December 18, 2014 12:49 PM: 'plea bargaining denies state-targeted persons recourse to a jury.' Exactly! That is the root disfunctional legal system altogether.
Questions to all respected bloggers and Skeptical in particular:
-Does judge have authority in the US court (Federal or State) to override Jury nullification verdict?
-Could prosecutors appeal such verdict to the higher level of court system and/or reopen the the same case?
Your input is important to clear the things out.

d33tDecember 18, 2014 3:45 PM

This is a quote from the Oregon State Bar Handbook for Jurors

"Although some people may claim that a jury can “nullify” the law, this view is legally incorrect and severely prejudices the administration of justice. Jurors who disregard the trial judge’s instructions have violated their oath."

Looks like Oregon State will give you grief for exercising the power of jury nullification. I'll have to ask an attorney next time I have a chance.

e"December 18, 2014 3:59 PM

That oregon bumph is a subtle misdirection. Jury nullification is best used to nullify an act of court or state in breach of supreme law, including international law as jurors understand it. This is an act of civil resistance (c.f. Francis Boyle), citizens ENFORCING the law. It's how you stop a criminal state like the USA.

d33tDecember 18, 2014 4:03 PM

It looks as though the current Oregon Constitution disagrees with the bar:

"Article 1, Section 16. Excessive bail and fines; cruel and unusual punishments; power of jury in criminal case. Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense. In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases.

d33tDecember 18, 2014 4:49 PM

@e"

you said: "That oregon bumph is a subtle misdirection."

Having lived in Oregon a number of times, I consider state, county and city government misdirection a common occurrence here.

SkepticalDecember 18, 2014 6:46 PM


@Daniel: However, he writes. "but Americans have lived in a society where police can impersonate repairmen for a very long time." This isn't a legal argument. It's like claiming that because a child has lived with child abuse for their entire childhood ergo child abuse must be OK.

Nor did I claim it to be a legal argument. I was addressing Schneier's policy argument - that allowing police to impersonate technicians would result in an intolerable society for Americans. Since we've allowed police to do so for a very long time, I disagreed.

@Dave: If someone gives you money because you lied about who you are, the courts will rule that is theft.

If someone has sex with you because you lied about who you are, the courts will rule that is rape.

If a policeman gets "consent" to gather evidence without a warrant because he lied about who he was, the courts should throw out that evidence (and possibly take some disciplinary action).

Those are three very different sets of circumstances, and the courts have analyzed each of them quite differently.

Let me take the first two, fraud and rape. Consider two sets of circumstances:

A man lies about being a veteran to qualify for benefits from the government.

A man lies about being a veteran to persuade a woman at a bar to sleep with him.

The first is criminal, and the second, while despicable, is not.

So what about privacy and searches? Remember: the question isn't so much whether you've given knowing permission for a cop to enter your home. The question is whether you can reasonably have an expectation of privacy with respect to what's under the kitchen sink when you invite someone in that you think is a plumber. You may be wrong about the individual's profession, but obviously you no longer have a reasonable expectation of privacy to what's under the kitchen sink. It's a subtle distinction but an important one.

The courts, in considering that question, also considered what the likely effects of forbidding police officers (or directed informants) to enter private areas without disclosing all facts that the inviting party may think relevant unless they have a search warrant. And they concluded for the most part that the effects would be quite negative.

LarryDecember 18, 2014 8:29 PM

@ uhh, Mike
"The police are now demanding exceptions from their own surveillance."

I was wondering where you read that, and then I saw the first comment. :)

shortsightDecember 18, 2014 8:44 PM

You guise and your instant solutions! We'll just nullify the law. How did that stratagey work out for the dead American citizen killed by a drone strike targeted and ordered at him by the president?

Oh, its okay, he was on foriegn soil? Had a towel on his head? Used bad words, and moved minds and opinions in ways we didn't like? And on it goes. Its only a matter of time till this enitire US system breaks down.

I worry that you the people won't be allowed the luxury of freedom. I think the people in charge of this world are some of the coldest hardest hearted indivuals, whith only economics on their minds. Eventually, they will realize they don't need all these people, probably about the same time they stop pricing oil in US dollars.

But I digress, tell me more about how you'll hold hands in the jury room! Or how you'll just sit back and wait, as surely a higher court will find this illegality shocking, shocking! Just wait..

DanielDecember 18, 2014 9:03 PM

@Skeptical

"that allowing police to impersonate technicians would result in an intolerable society for Americans. Since we've allowed police to do so for a very long time, I disagreed."

A policy that is tolerable in isolation may be intolerable when its cumulative effects are considered. My understanding of the essay is that it is these cumulative effects that Bruce considers important. Thus his claim, "the country will slide even further into a society where the police have even more unchecked power than they already possess." (emphasis added.) So the fact that we allowed police to impersonate repairman for a long time without an armed revolt isn't evidence for anything, because the issue is whether a breaking point will be reached in the future and not whether one was reached in the past.

skep's so rone-ryDecember 18, 2014 9:08 PM

Bear in mind that skeptical is lecturing you from the point of view of the US judicial system, an international laughingstock from its crooked apex court on down to the ugga-bugga caveman clans that habitually shit on the law shared by EU and American allies. So naturally skeptical thinks privacy is an expectation rather than a right. Naturally he can go on and on about third-rate red tape more suited to the NKVD than to a grownup police force. But since there are no facts in there, it's not false, so hats off to the brightest little Pioneer in Juche class!

Nick PDecember 18, 2014 10:29 PM

@ (ಠ_ಠ)

Glad to see we've been thinking on the same lines. From patent law to mass collection, I've been thinking about ways to use jury nullification for months. My byline is convincing 12 is easier than convincing most of 300+ million. Trick is that it becomes a numbers game in the case law, it will be a minority, and so it's best used for defensive purposes. Suits this case and many others. Still wonder if there's better offensive uses against corrupt legislation than simply breaking it and waiting for the lawsuits/charges for nullification attempts.

JustinDecember 18, 2014 11:17 PM

This "jury nullification" thing is way overblown. As if some jury of twelve random citizens is suddenly going to decide that they are not going to apply the law to the best of their ability as they have been instructed. It's mostly just a theoretical concern among prosecutorial types because legally there is no recourse should the jury decide to "nullify" the law by returning a not guilty verdict despite overwhelming evidence of guilt.

I'm sure there are cases where it's happened, but who's to judge, if not the jury? I'm also just as sure that not every "not guilty" verdict is a "nullification" even if that's what the prosecutor would like to think.

Your odds are really long if you think you will convince a jury to "nullify" a law that you think is corrupt. Chances are they will offer you a plea bargain which will be your only realistic chance of seeing the light of day again. Or they may or may not even prosecute it in court but apply measures of Zersetzung to punish you outside the judicial system, especially if it's an unwritten law you are breaking.

65535December 19, 2014 2:06 AM

‘This "jury nullification" thing is way overblown… Your odds are really long if you think you will convince a jury to "nullify" a law that you think is corrupt. Chances are they will offer you a plea bargain which will be your only realistic chance of seeing the light of day again.’ – Justin

I agree.

Most of these “book-making” or “victimless” crime cases are handled via plea bargaining – as are the vast majority of cases.

The problems I have is the FBI, probably with help from the NSA, are using military tactics such as deception and parallel construction [possibly illegal surveillance devices] to bust a low level gambling crime – in Los Vegas!

This case has nothing to do with Terrorism or some large homicide. It’s a vice case and nothing more.

The Government's use of military tactics in a civilian case, including lying to a judge, deceitfully cutting-off utilities and using hidden cameras is wrong. The only way this case will be re-mediated is when and FBI agent is fired or goes to jail.

This case also highlights the dangers of integrating Military/NSA equipment and deceitful tactics used against foreign superpowers on a civilian ‘vice’ case. It is grossly inappropriate. If this behavior continues things will end badly.

qbDecember 19, 2014 4:08 AM

Does jury nullification even work? I'm not an American so my knowledge of the issue is third hand, but from what I heard and read, juries are not allowed to employ it.

One case in point is the case of Peter Watts, a Canadian writer who was beaten by USA border control (when leaving USA) basically for asking what's the matter, and got a felony conviction as a result. Jury members say they were instructed to answer only one question, did the subject immediately comply with border guard orders or not. And they were further instructed that they cannot use jury nullification (the subject of which apparently was raised because of the absurdity of the circumstances of the case).

So does jury nullification exist in reality?

WmDecember 19, 2014 6:45 AM

Once again, people running to the source of the problem to fix the problem. You will have to guard against this new intrusion yourself. As someone mentioned, judges are nothing more than willing accomplices in the new police state. So build yourself a small room with an outside and inside door that connects to your home that contains your modems, refrigerator, electrical boxes, etc, and don't allow anyone past the small room. If they even subtlety suggest that they need to come inside for any reason, know that they are the cops.

Clive RobinsonDecember 19, 2014 7:53 AM

@ Wm,

You forgot to mention an "entertainment area"...

Not so long ago one way to socialize was to have "Dinner Parties" or less formaly "Movie Parties" where a social group would meet in each others houses rather than go out some where formal the host would supply food / nibbles and entertainment (slightly studentish but good fun never the less).

Unfortunatly in the UK a TV company brought out a "competitive dinner party" reality TV program, part of which was the "guests" wandering through your house looking in your underware draw etc. It might make good television for lifes "curtain twitchers" but it's actually extreamly bad manners.

However people started believing it was "part of the party because they had seen it on TV" the result is that if you decide to have a dinner or movie party etc you now have to lock all your doors to keep those of a curious nature out...

To be honest, I think I would rather be visited by a real live rat than some of the types you get attached to people you know, at least the rat is only there because "it's a better hole" rather than "spying" gratuitously or officially or both to maliciously talk to others about.

So I think it's time all we of a security concious nature became "hermits". I would add a little ditty / lymeric to that effect but the moderator is known to take a dim view on it, and as we are Bruce's guests "his gaff, his rules" :-)

Oh as it's the feast of saint nick soon, I wonder if the FBI will be "Ho Ho Hoing" down chimneys dressed as Santa into childrens bed rooms and claiming they were consentialy admitted...

BJPDecember 19, 2014 8:15 AM

@qb - yes, jury nullification can work. But revealing that you have even heard of the concept of jury nullification will get you thrown off a jury or never selected in the first place, and prosecutors/judges have absolutely zero recourse against a jury that ignores their instructions unless there is fraud/inducement/bribery or something similar along those lines. Details of what happens in the jury room is not available to prosecutors or judges, and if the defendant is found not guilty, he or she is no longer at any legal risk as to that specific charge.

Effectively, people will do whatever the prosecutor/judge says, in most cases. Jury nullification only works when those who intend to use it keep their mouths shut.

AbeDecember 19, 2014 8:44 AM

Counting on the supreme court?! Good god, man, think what you're saying. Cardboard cutouts for identity politics, drawn from the middle ranks of party hacks, extremes of pliant mediocrity that would abash Equatorial Guinea or Turkmenistan. Which of them do you hope to reach?

A convulsing fauntleroy of servile temperament, lost without an ass to kiss, promiscuously smooching corporate ass, Chamber-of-Commerce ass, Vatican ass, CIA ass.

Two hairy papists who would merge into a single malign entity like Samneric but for the dumber one's distinctive festering resentment. Harvard wouldn't let in wops and he's still taking it out on the world. Really, though, a neurotic oaf like that, the mob wouldn't have him either.

Two doddering mummies farting dust, relics from the waning age of meritocracy. The female occasionally quickens with envy for superior African law, but they're altogether to feeble to oppose the mad flagellants.

A speak-no-evil curio propped on the bench. This one's no mere token, he's a perfect CIA stooge with a gothic ossuary of skeletons in his closet - lecherous, venal, on the take and too stupid to hide any of it. But for the favor of Poppy Bush he would have blundered into prison long ago.

There are others, I suppose, lost in the mire. A couple of women frantic about terror. There's that sexless oddball, but didn't he kill himself so the flying saucers would come? Something about nikes and purple drapes?

No. Forget the supreme court. When the time comes we'll mob them and dismember them.

vas pupDecember 19, 2014 9:08 AM

@e" • December 18, 2014 3:18 PM. Thank you for the links provided the second in paticular, BUT ther are two court systems in US (not talking about military courts): State and Federal, and based on media/TV/Shows etc. I still have unresolved quaestion: If Jury nullify charges in State Court, look like it does not prevent bring charges (slightly modified to fit federal jurisdiction) in federal court. So, my humble understanding is that double jeopardy applied even within same jurisdiction, not accross them. Any input is highly appreciated.

@65535 • December 19, 2014 2:06 AM: 'This case has nothing to do with Terrorism or some large homicide. It’s a vice case and nothing more.' Yes, I agree. When LEAs got particular highly intrusive tools, those tools were intended to use for particular set of crimes only. It is like drill skull for minor migraine rather than for treatment of brain tumor. And time and again, usage of those tools in minor cases is counterporductive for LEAs personnal itself - this is path for dequalification, stupiditization and idiocracy within LEA becauce it is easyer to 'use cannon to kill one smal bird' than develop creativity, brain power and REAL professionalism of LEOs.

ArclightDecember 19, 2014 9:32 AM

The trust issue is huge. I volunteer on a wilderness search and rescue team. There is constant pressure to start charging victims for rescues, on the principle that "normal" people shouldn't need to be rescued from a cliff, backcountry hike, etc.

While this is satisfying to politicians and the public, it creates and enormous trust problem when the (mostly volunteer) folks in uniform charged with finding and rescuing someone are turned into revenue agents for the state.

It would be even worse if people thought we were undercover cops too.

Arclight

AnontinaDecember 21, 2014 10:08 AM

A very scary thing with all of this spying is the potential of the corporate monkeys mimicking the government and spying on the public for various reasons. It could really be like the cartoon where the guy is sitting in his living room and there are 10000 telescopes peering in his window ;)

Clive RobinsonDecember 21, 2014 11:13 AM

@ Anontina,

The corporates are the telescopes and their monkeys are operating the recording machinery 24x365.25 with ever increasing resolution.

The current electrical "smart meters" can provide sufficient information to know not just which appliances you are using, but in the case of entertainment systems sufficient information to determine what you are entertaining yourself with. Thus it will in the near future be possible to know not just your political leanings via which news service you watch, but also have reasonable suspicion you have been watching black market DVDs or porn and what types etc etc.

Such information would in most cases give the necessary "six lines" by which you can be condemed and hung, or at the very least be used as reasonable suspicion to get a warrant to bust down your door.

Add to this the IoT and we will be very definatly be "living in a goldfish bowl" our lives not just viewed in 20/20 but where required dissected to the point that what we will do next will be very very predictable to the point our strings will be pulled and our buttons pushed at will by the unseen hand.

If that does not give you sufficient thought on going "off grid" I'm not sure what will, and if you cannot go off grid as many cannot I can tell you how to filter out much of this information using UPSs and other readily available equipment at fairly modest cost.

Coyne TibbetsDecember 21, 2014 2:18 PM

@Skeptical The best way to understand the issue here is by analogy to the third-party doctrine - the idea that if you disclose information to a third party (outside of some exceptions), you lose a reasonable expectation of privacy as to that information.

The reason it is called the "third party" doctrine is because a third party--neither the defendant nor the state--is involved. A disinterested party.

This destroys your entire argument: No matter how much the agents would like it to be so, they were not third party. They were government agents, pretending to be third party, and so the third party doctrine does not apply. Even if the people entering had been legitimate repairmen, if they were instructed and sent by the government to look, they would be acting as agents of the government; not third party. This principle is well established in Constitutional law.

It is manifest that the agents knew this: Not only were they were told they could not do this by the prosecutor but it is clear (from other articles, not so much this one) they tried hard to conceal what they had done. In doing so, they perjured themselves and falsified evidence; indulged in a little "parallel construction", a term which exists solely to lily-guild civil rights violations.

The eyes of an agent--or a rehearsed therefore an agent repairman--are not the same as a third party who saw something suspicious and reports what they saw. The eyes of such an agent are actively seeking crime, actively prying into places a repairman had no business seeing, deliberately looking over shoulders, and listening for the slip of the tongue that exposes a crime.

One cannot consent to such a waiver of civil rights, unless one knows--has full consciousness--that civil rights are being waived. As a result, consent is not even an issue in this case. It is for exactly that reason that a warrant was needed: Since consent for waiver of civil rights could not be obtained from the subjects, the warrant was needed to justify the agents' actions.

SkepticalDecember 21, 2014 4:29 PM


@Coyne: The reason it is called the "third party" doctrine is because a third party--neither the defendant nor the state--is involved. A disinterested party.

This destroys your entire argument: No matter how much the agents would like it to be so, they were not third party. They were government agents, pretending to be third party, and so the third party doctrine does not apply. Even if the people entering had been legitimate repairmen, if they were instructed and sent by the government to look, they would be acting as agents of the government; not third party. This principle is well established in Constitutional law.

I noted the third-party doctrine by way of attempting to explain the 4th Amendment jurisprudence that would apply in this case, and as a useful contrast, not as a logical basis for the doctrine that would apply to this case.

With respect to law enforcement gaining consent to enter an otherwise private space by way deception, the basic idea is that if one has invited in another party to transact some form of business, whether that be a home repair or receiving a delivery, then one has surrendered the privacy of that space to the extent implied by the invitation.

In other words, if you invite in someone who you think to be a UPS employee delivering a package then you have compromised the privacy of your space to the extent necessary for that employee to complete his task. And this compromise applies regardless of whether he is an employee of UPS or is in fact an employee of the federal government.

This is firmly settled law. There is no question about it.

There are limits to the deception law enforcement can use to gain entry, however. An agent cannot falsely claim to have a search warrant for example, or tell such a lie that you are essentially deprived of voluntarily consenting to any entry (e.g. a federal agent pretending to be an employee of a gas company tells you that there's a gas leak and he urgently needs to check your residence).

You can find an extensive discussion of the law on this point if you read U.S. v. Montes-Reyes, 547 F.Supp.2d 281 (S.D.N.Y. 2008). I cite this case simply for its useful discussion of the current state of the law (you'll find ample references to the leading cases within that discussion), not for any authority it carries in itself.

Hope some of that is helpful.

BoppingAroundDecember 21, 2014 4:42 PM

Clive,

> I can tell you how to filter out much of this information using UPSs and other readily available equipment at fairly modest cost.

Please do. I could use some advice on that. Thanks in advance.

Coyne TibbetsDecember 21, 2014 9:39 PM

@Skeptical

You're still missing the point, arguing exactly what you did before.

These agents were not third parties, and are not covered by third party doctrine. The fact that a true third party could have volunteered this information, will not protect them from the consequences of their invasion of private space.

This is an argument I see depressingly frequently from the TLA's these days: That it is only a crime if they get caught. Any first month law student will tell you that it is the act that is illegal or not; it is the act that is investigated; it is the act for which prosecution occurs; it is the act for which conviction occurs. The fact that the criminal act happens to not have been discovered makes it no less a criminal act.

I am frankly tired of this BS that, "Well, it only matters if someone finds out." That anyone can commit murder, robbery, theft of services, copyright infringement, trademark violations, embezzlement, identification theft, arson, ...terrorism...or trample all over the rights of the citizen and it only matters if the act--or the person who commits the act--is discovered.

Let's take one of those: Trademark infringement. I make up a bunch of fake Rolex's and sell them on the street. I am not discovered, the watches are not discovered, the lost sales are never discovered. No harm, no foul, right? But the FBI would be the first one to tell me that, no, it was a criminal act, even though it wasn't discovered.

But wait, now the FBI is arguing that what these agents did wasn't wrong because it wasn't discovered. And when it was discovered, they now assert that, well, any old person who entered might have seen the same thing...except an ordinary repairman wouldn't have been snooping in closets, and looking over shoulders, and recording while doing so.

These agents committed an illegal act: They entered a room illegally, in violation of the occupants' civil rights. They cannot hide behind the third party doctrine for the simple reason that it was not the act of a third party; it was an act of agents of the United States government.

Sancho_PDecember 22, 2014 12:30 PM

@ Coyne Tibbets

I guess Skeptical can not follow your argument because what he wrote “is firmly settled law”. He may be open to discuss the merits but the actual situation is coming from above and can’t be disputed.

However, being a simple shepherd, my view is much more simplistic.

This is always the same wrong principle, not a matter of law but of humanity:

Secrecy (e.g. to cover actions) from top down is always wrong.

Law professionals will weasel around that principle to make their living, anyway, it’s wrong.

It is cowardly hiding in anonymity for authorities, bosses, parents, …
It is not “American”.
(as we non-American saw the American Dream years ago).

To make the point in this example:
Hotel staff suspects wrongdoing but doesn’t have enough evidence for the police to get a search warrant.
OK, bad situation.
Are there any lives in danger? No, therefore they can’t break in.
Possibly fraudsters (as banksters +), but no violence.

A honest reaction could be:
Hotel manager + police knock on the door, discuss with guests, they let them in or not.
IDs taken, issue explained, either apologized or warned and thrown out of hotel.
Registered in suspect’s database, given them a copy for their lawyers to appeal or protest.
Database entry guaranteed to be deleted with notice to them after 5 years if no other incidents registered.

Treat others with respect, and you may earn respect.
A coward won’t earn respect, never.

SkepticalDecember 22, 2014 3:20 PM


@Coyne: These agents were not third parties, and are not covered by third party doctrine. The fact that a true third party could have volunteered this information, will not protect them from the consequences of their invasion of private space.

Forget I even brought up third party doctrine, as it seems to have confused matters more than it has illuminated them. To reiterate, what renders the actions permissible is not the third party doctrine.

Let me quote from a case in which federal agents entered an apartment by posing as UPS employees delivering a package, tricking the occupant into allowing them access. As to the question of whether this violated the 4th Amendment, the court there held:

Thus undercover agents may legally enter premises for the purposes granted or consented to by the occupant. In the present case, it is evident that the Government agents dressed as United Parcel Service employees were granted entrance to the premises for the purpose of delivering a package. The agents did not exceed the scope of the activities expected of them in making their deliveries, thus their entries are lawful despite their hidden identities and true purpose for entering the premises. See also, Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). The legality of the agents' conduct may also be explained in terms of expectation of privacy. An occupant when permitting others to enter his or her dwelling willingly relinquishes his or her expectation of privacy to the extent and nature of the consent given to enter. U.S. v. Miglietta, 507 F.Supp 353, 355 (M.D. Fla. 1980).

The underlying rationale here, again, is that by inviting individuals into the space for the purpose of transacting business, the occupant relinquished any expectation of privacy to that space, at least to the extent required for the intended business.

What matters is not whether the occupant knew that the UPS workers were in fact government agents; what matters is the expectation of privacy that the occupant may have had. By inviting in the UPS workers, the occupant voluntarily relinquished that expectation.

CoryDecember 22, 2014 9:22 PM

@ Arclight:

It would be even worse if people thought we were undercover cops too. Arclight

Why would it be worse in a rescue situation?

Daniel OliveDecember 24, 2014 9:15 AM

The conspiracy to intentionally break a contract by not providing the internet service contracted for alone should be enough to exclude the evidence as the fruit of a conspiracy to commit a civil wrong by breaking a contract and/or FBI participation in an unlawful taking of the right to performance under the contract and/or FBI participation in a conspiracy to defraud by claiming in a bill that there had not been a secret breach of contract.

Civil wrongs are prohibited, and to reward conspiracies to procure them by admitting their fruit will only encourage their further commission. They therefore attract the fruit of the poison tree doctrine.

As we conceptualise property rights in England and Wales, the right under the contract to internet service is a property right. You can sue to enforce it, that right is a chose in action, that chose is property. If Nevada contract law conceptualises that right the same way, it is a conspiracy, in which a government agent plays a large part, to take property without compensation, contrary to the prohibition in the fifth amendment on taking property for public use without compensation. The takings clause, incidentally, lays out the limits if what the law may allow, it does not permit those takings which I does not prohibit. Even if there were compensation, the taking would not be authorised by the takings clause, it would only be open to a competent legislator, such as the Nevada legislature in making contract law, or Congress in the exercise of the necessary and proper clause, to do so, and they haven;t.

Concealing fraudulently that you have not performed all of a contract then claiming the whole sum is fraud. Over $650 in Nevada fraud becomes a felony. Arguably, the whole bill was fraudulent given how hostile to the interests of the guests was the conspiracy against their interest. FBI agents do not get to commit or conspire in the commission of felonies and then use the evidence they get from that commission or conspiracy. NRS 199.290 provides that even accepting some reward for not reporting such a felony is itself a Class D felony. NRS 199.480 further provides that any party to a conspiracy to commit a state crime in Nevada is guilty of a gross misdemeanor.

SkepticalDecember 24, 2014 10:43 AM


@Daniel Olive: I don't have a citation handy at the moment, but I'm reasonably certain that the argument you raise has been tried and rejected by the Supreme Court (there's some basis for it in English law from some number of centuries ago, but the Supreme Court didn't find it persuasive).

Instead the admissibility of the evidence here will come down to two questions: (1) did cutting off the internet deprive the occupants of the ability to voluntarily consent to entry (as would, in the classic case, telling the occupants that there's a gas leak); and (2) did the agents exceed the limits of their permission as technicians in obtaining the evidence that resulted in a search warrant.

The first question will almost certainly be answered in the negative. I didn't read the defense motion closely enough to have an opinion on what the answer to the second question might be.

Coyne TibbetsDecember 24, 2014 5:32 PM

@Skeptical

Okay, I accept your shift of ground, but that still leaves the agents with no support. In your response, you presented this text:

Thus undercover agents may legally enter premises for the purposes granted or consented to by the occupant. In the present case, it is evident that the Government agents dressed as United Parcel Service employees were granted entrance to the premises for the purpose of delivering a package. The agents did not exceed the scope of the activities expected of them in making their deliveries, thus their entries are lawful despite their hidden identities and true purpose for entering the premises. See also, Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). The legality of the agents' conduct may also be explained in terms of expectation of privacy. An occupant when permitting others to enter his or her dwelling willingly relinquishes his or her expectation of privacy to the extent and nature of the consent given to enter. U.S. v. Miglietta, 507 F.Supp 353, 355 (M.D. Fla. 1980).

That phrase is the death knell, because these agents, as described, seeme to me have exceeded the scope of the activities expected. That will be up to the court, I guess.

Outside of this case, where does that leave us? Shall every repairman from now on, be met at the door with an agreement along these lines (to be improved by attorneys):

You agree that you are here to make the required repairs, and to perform no other action.


You agree that you will make no video or sound recording of any activity within this [space].

You will not make take any pictures whatsoever within this space.

You will not enter into any room or area of this [space] without express permission.

You will not leave any recording device within this [space] whatsoever.

You will not open any container, cupboard or drawer, without express permission.

You will not take anything from this space without express permission; except you or your company's property.

Your company agrees to accept full and complete liability for any violations of this agreement.

Signed: _______________________________ Date: _________________

Isn't that a fine way to have to operate in society?

Bruce PerryDecember 25, 2014 8:31 PM

Jury Nullification may not be charged but juries do have that power. A jury exercised that power when One William Penn was placed on trial by the Crown. Had that jury been cowards, Pennsylvania would not exist (which I sometimes think, from time to time, it might not have been a bad idea had he been convicted

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