Government attempts to lie its way around the Fourth Amendment (and into your living room)

February 06, 2018 | By TIMOTHY SNOWBALL

The Fourth Amendment to the United States Constitution protects individuals and their property from unreasonable searches and seizures by police and other government agents. The Founders specifically singled out private homes as worthy of special protection. As Sir Edward Coke once famously put it: “The house of every one is to him as his castle and fortress.” In order to perform a legal search or seizure, agents are required to first obtain a warrant based on probable cause and issued by a neutral judge. And while the Supreme Court has crafted several exceptions to the warrant requirement, warrantless searches are still considered to be per se unconstitutional. One of these exceptions allows government agents to search individuals or their property if the individual consents to the search. But in order to consent, a person must do so knowingly.

Imagine that you are sitting at home, minding your own business on a quiet evening. There is a knock at the door. You are greeted by a utility company employee who informs you that there has been a report of gas leaks in the area, and requests permission to enter your home to investigate. You consent. Or maybe a uniformed police officer knocks on your door, claiming that there are reports of a dangerous person in the area. Concerned with you and your family’s safety, you give them permission to enter onto your property. Or maybe your home was recently the site of a series of burglaries, and you call your local police department for help. When officers arrive, of course you allow them to enter your home. Why wouldn’t you? After all, they are there to help you. Right?


After having their home twice burglarized, Chenequa Austin and Eric Spivey sought the aid of their local police department. Two federal agents, one falsely posing as a crime-scene technician, the other falsely posing as a burglary detective, came to their house on the pretense of following up on the burglaries, but mainly, unbeknownst to them, to investigate them for suspected fraud. The agents had Mr. Austin and Ms. Spivey lead them all over the house to “investigate” the burglary, in bedrooms, through doors, and in drawers. While doing so, the agents observed evidence of possible criminal activity. When Mr. Austin and Ms. Spivey challenged this “deception-exception” to the Fourth Amendment in court, for the first time in history a U.S. Court of Appeals found that police or other government agents may lie to individuals to gain access to their private homes for the purposes of collecting evidence to be used against them in criminal prosecution. Not only is the Eleventh Circuit’s decision in conflict with Supreme Court precedent and will likely lead to future abuse, but it goes directly against the intent of the Founders in crafting the Fourth Amendment.

The invasion of private homes by British agents under the so-called “writs of assistance” provided one of the major bases for the American Revolution. “[T]he physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” The essence of Fourth Amendment violations are not the “breaking of [] doors” or “the rummaging of [] drawers,” but the “invasion of [the] indefeasible right of personal security, personal liberty, and private property.” Instead of “plac[ing] the liberty of every man in the hands of every petty officer,” like the Eleventh Circuit ruling does in this case, the Founders built specific protection for private homes into our Fourth Amendment.

Knowing PLF’s reputation as the top watch dog for private property rights in the United States, we were asked to submit an amicus brief in support of Mr. Austin and Ms. Spivey’s petition for review of their case by the Supreme Court of the United States.