May 29, 2018

No, police can’t lie their way into our homes

By Timothy R. Snowball Attorney

As children we are taught that law enforcement officers are here to help us. After all, who do you call when you need help? The police. But effective policing within communities depends on a relationship of trust between law enforcement and the public. When law enforcement breaks that trust it not only makes the public less likely to call for help when they need it; it makes officers’ work protecting the public all the more difficult.

Spivey v. United States, a case scheduled to be conferenced by the U.S. Supreme Court on June 7th, and in which Pacific Legal Foundation submitted an amicus curiae brief, has the potential to reinforce the relationship of trust between law enforcement and the community. In Spivey, the Eleventh Circuit Court of Appeals in Atlanta held that police or other government agents may lie to a home owner, rather than obtain a magistrate-approved warrant consistent with the Fourth Amendment, to gain access to their home to collect evidence to be used against them in court. The Eleventh Circuit’s decision conflicts with the very reason the Founders crafted the Fourth Amendment in the first place.

The facts underlying Spivey will shock you: After having their home twice burglarized, Chenequa Austin and Eric Spivey sought the aid of the police. Two officers, one falsely posing as a crime-scene technician, the other falsely as a burglary detective, came to their home on the pretense of following up on the burglaries. In reality, the officers intended to investigate Austin and Spivey for a suspected crime. The police had already caught their burglar who, in turn, had informed the police that Austin and Spivey’s house contained evidence of crime on their part. The agents had Austin and 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 they believed of a crime and subsequently—rather than “solve” the burglary they told the home owners they were there to investigate— arrested them, instead.

Austin and Spivey rightly challenged this government action as illegal, but the courts to this date have disagreed. Most recently, the Eleventh Circuit approved this misconduct and held that police may use outright deception as a pretext for gaining consent to perform a warrantless search of a home for evidence of illegal activity.

This decision approves a blatant violation of the Fourth Amendment, and the Supreme Court should take this opportunity to say so.

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.” Protection for private homes from government invasions formed one of the primary bases for the American Revolution from Great Britain. 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 a few exceptions to the warrant requirement, warrantless searches are still considered unconstitutional unless they fall within one of those exceptions. This case does not. While it is true that one of the exceptions to the Fourth Amendment allows government agents to search individuals or their property if the individual consents to the search, that consent must be a knowing consent, not one offered as the result of being tricked.

Finally, there are the practical effects of the Eleventh Circuit’s ruling that make this issue one of national importance. Given the wide proliferation of so-called “administrative searches,” searches conducted for civil code enforcement violations by local government bureaucrats, municipalities already prone to ignoring the Fourth Amendment will only be encouraged to continue or expand this constitutionally perilous behavior.

The ruling undercuts the trust that the community and police must place in each other—because this ruling tells citizens that they should not trust law enforcement. Surely that makes no sense as a matter of policy, even if it were constitutional—which it isn’t. The Supreme Court should agree to hear this case and declare the search of Austin and Spivey’s home without a warrant based on gross misrepresentations by the government violated the Fourth Amendment. In doing so, the Court will help restore the trust that must exist in a free republic between its people and its law enforcement officers.

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