Imagine this: your cable suddenly stops working, so you do what most people do – get a cable guy to come and fix whatever the issue was in the first place. But next time that happens, you might want to make sure it’s not an FBI agent. A Federal Judge in Nevada has given an angry rebuke to the FBI when agents cut internet cable, then posed as a cable men in order to gain access to an area they wanted to search.
According to Ars Technica:
A federal judge issued a stern rebuke Friday to the Federal Bureau of Investigation’s method for breaking up an illegal online betting ring. The Las Vegas court frowned on the FBI’s ruse of disconnecting Internet access to $25,000-per-night villas at Caesar’s Palace Hotel and Casino. FBI agents posed as the cable guy and secretly searched the premises.
The government claimed the search was legal because the suspects invited the agents into the room to fix the Internet. US District Judge Andrew P. Gordon wasn’t buying it. He ruled that if the government could get away with such tactics like those they used to nab gambling kingpin Paul Phua and some of his associates, then the government would have carte blanche power to search just about any property.
“Permitting the government to create the need for the occupant to invite a third party into his or her home would effectively allow the government to conduct warrantless searches of the vast majority of residents and hotel rooms in America,” Gordon wrote in throwing out evidence the agents collected. “Authorities would need only to disrupt phone, Internet, 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.”
The government had urged the court to uphold the search, arguing that it employs “ruses every day in its undercover operations.” (PDF) The government noted that US judges have previously upheld government ruses to gain access into dwellings.
In 1966, the Supreme Court authorized an agent to pose as a drug buyer to get consent to go inside a house. In 1980, an agent posing as a drug dealer’s chauffeur was upheld. Seven years later, agents posed as real estate investors to access a bedroom and closet of a suspect. And in 1989, an agent posed as a UPS delivery man to get inside a drug house, the government argued.
But operatives posing as gas company or water district workers seeking permission to enter the premises to check for leaks were deemed illegal searches. That’s because the occupants provided “involuntary” consent to enter because they were duped into believing a life-threatening emergency was afoot, Phua’s defense pointed out.
In the Phua case, the FBI and a Nevada gaming official clandestinely filmed the rooms while building a case that ultimately accused Phua, his son, and others of running a World Cup soccer bookmaking ring where “hundreds of millions of dollars in illegal bets” were taking place. The investigation started last summer when Caesars Palace staff got suspicious that the men were ordering a substantial amount of electronic gear and Internet connections.
The seven other defendants reached plea deals, but Phua challenged the search on constitutional grounds. The court’s decision likely ends the case against the 50-year-old Malaysian.
Thomas Goldstein, one of Phua’s lawyers and one of the nation’s top Supreme Court litigators who runs the SCOTUSblog, chided what he described as “the government’s misconduct.”
“This is a monumental ruling protecting Americans’ privacy in the modern age,” he said in a statement.
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