FBI Pretend to Be Technicians to Get Around 4th Amendment

This story should scare you. The FBI wanted to search for evidence in the hotel rooms occupied by a wealthy Malaysian businessman but didn’t have enough evidence to get a warrant, so they killed the internet to his room and then pretended to be technicians there to fix the problem. Once in the room, they gathered evidence, got the warrant and arrested them. His attorney is trying to get that evidence quashed because it was gathered illegally. From the motion:

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.

Yes, the government — that’s the Obama DOJ — argued that by letting these “technicians” into their room, they had consented to a search by the FBI. They didn’t have enough evidence even to get a warrant to gather evidence, so they said screw the 4th Amendment, we’ll just manipulate a situation through which they will welcome us into their rooms thinking we’re not the FBI and that will show that they consented to a search by the FBI.

Paul Phua, the businessman in question, had wagered large sums of money on the World Cup, but he was staying at Caesar’s Palace, where this is entirely legal. You know what was so important that they shred the 4th Amendment and arrest the guy? He used his internet connection to place other bets on sporting events in Macua. Clearly a dangerous criminal that the FBI simply had to take down, constitution be damned.

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What Are Your Thoughts?leave a comment
  • Nihilismus

    Ah, the old vampire strategy for obtaining consent to enter a home.

  • Pierce R. Butler

    Wait till the MRAs and PUAs discover this interpretation of “consent”… :-O

  • chisaihana5219

    They are welcome to come into my house, as long as they agree to vacuum the floors while they search. Please remove all evidence of illegal dust. Thank you.

  • Hercules Grytpype-Thynne

    That evidence ought to be tossed out of court with such force that it ends up in orbit.

  • http://timgueguen.blogspot.com timgueguen

    It’s weird seeing this given that I’ve seen Phua playing poker on TV. And for that matter one of his co-accused, Richard Yong. Some sources claim Phua is a member of the 14K Triad, one of Hong Kong’s organised crime groups. Not that this justifies the tactics used.

  • David C Brayton

    I’m rather ambivalent on this case. My initial reaction was shock and outrage. I do not want the government tricking folks in order to circumvent the Fourth Amendment.

    On second thought, I wasn’t so outraged. First, deception in law enforcement is permitted in lots of situations and considered a valid technique. For example, undercover and sting operations are legitimate tactics as long as they don’t go too far (i.e. entrapment). No one would ever permit a police officer into his apartment in order to conduct a drug deal. If the perp asks, the cop will say “no, I am not a cop” and continue on with the transaction leading to an arrest. And that is considered constitutional. So, why doesn’t that apply in this case?

    Second, what expectation of privacy was violated by this technician? If a legitimate technician were invited into the room and saw contraband, it certainly would be constitutionally permissible for the technician to report it to the police. Assuming the reputed technician did not exceed the scope of what he was invited in to do, I don’t think the perp’s reasonable expectation of privacy was violated.

    Now, if the reputed technician exceeded the scope of the invitation and started looking through stuff that was irrelevant to the reason for the technician’s presence, then I’d be pissed. (Query: what if the technician was permitted into the bathroom to pee and searched the medicine cabinet? What if he lifted the lid on the toilet and looked in the tank?)

    So, although I don’t like the tactic, I don’t think it violates the Fourth Amendment.

  • Doug Yencer

    So by simply inviting someone into my house, I’m consenting to a search? But I guess if I’m not doing anything illegal what do I have to worry about right?

  • blf

    The USAlienstani goons are not the only ones to ignore the rule of law to frame someone who doesn’t pay enough in bribes. One day when I was still living in Ingerlandish a visitor arrived at my door and explained he was there about an unpaid tax bill. This was nonsense, and as a matter of courtesy I invited him into my home whilst we discussed the matter.

    The first clew I had that I’d made a mistake was he was quite eager to accept. (The weather and so on at the time was fine, so there wasn’t any obvious external circumstances.) I noticed that at the time but paid no attention to it. The second clew I’d made a mistake, also noticed at the time, was he started taking notes before we discussed anything, and I got the impression he was documenting the contents of my home.

    As it turned out, he was a hired private goon, called a baliff. Whilst I have never been too clear on their “official” powers, apparently gaining access is a key part of the job, as it “allows” them to make an inventory for later “possession”(?) as reimbursement for the amount claimed due plus their own fees (which are, needless to say, exorbitant).

    Whilst I didn’t owe any backtaxes — a point conceded by the council when I complained and supplied documentation — I was unable to avoid paying those exorbitant fees. Apparently, letting the baliff into my house constituted an agreement to pay his fees. Not knowing anything about baliffs, or that this individual was a baliff, was deemed not-relevant; I let him into my home, therefore I agreed to pay his fees.

  • http://www.ranum.com Marcus Ranum

    Well at some point in time pretty much everyplace has had someone invited in, and nobody overtly rescinds invitations so they still remain in effect.

    Besides, the stasi say so. Did I say “stasi”? I meant FBI. Same thing.

  • had3

    Brayton @ 6: it’s not just the act of pretending to be a technician, it’s the act of turning off the internet to gain access that’s offensive and illegal.

  • http://artk.typepad.com ArtK

    Are these FBI agents or vampires?

  • http://onhandcomments.blogspot.com/ left0ver1under

    Clearly, #6 is also perfectly okay with warrantless wiretaps.

  • matty1

    @8 I didn’t know you could still be charged bailiffs fees if there was no debt in the first place. That said it still sounds like a serious cock up by the council, bailiffs are normally used at the end of a long process including several letters and a court order for non payment of debts. From your description it seems clear you hadn’t been to court over this so I would talk to someone about whether you are due compensation for them ignoring the proper process. Maybe Citizens Advice or if you can find a solicitor who will give a free consultation

  • blf

    matty1@13, That was (stops and thinks) c.20 years ago. You are correct, there was no (known to me) court case or letters — perhaps not-known-to-me since I had moved multiple years beforehand (the council in question was the old one). If there were any letters they presumably would have gone to the old address, and the same for any court notices. (The alleged tax discrepancy dated from the time-ish of the move… as I recall, the council was trying to charge tax for something like the reminder of the last year I did live there, but for the period after I had moved out.) At the time, I did check with a lawyer, who informed me I had no case and the private goon’s exorbitant bill was valid.

  • marcus

    David C Brayton @ 6 If you don’t realize the fault in your logic I’m not sure where to begin. If I invite an undercover agent in to my home to commit an illegal act there is already a presumption of guilt (and probable cause). When I invite a technician in to perform necessary repairs then that is an entirely different situation, and they are entering my home (or hotel room) under false pretenses. The point that had3 made is salient as well. Talk about a “slippery slope”!

    Perhaps you have been steeped in the “drug war” privilege claimed by these fearless protectors of public safety for too long.

    Your first reaction (IMO) was the correct one.

  • David C Brayton

    marcus, let me suggest a few corrections to your arguments. First, a ‘presumption of guilt’ has never been a justification for a search under the Fourth Amendment. Instead, the touchstone is whether someone had a reasonable expectation of privacy in a given space. Because the occupant permitted the technician into his room (and assuming the technician didn’t do anything that exceeded the scope of his invitation), the occupant certainly didn’t have any expectation of privacy in the stuff the technician could see.

    Second, all undercover operations involve elements of deceit, or as you say ‘false pretenses’. But the Constitution does not require that the police always operate with “true” pretenses.

    I agree that had3 has a good point. The federal government engineered a situation where someone revealed evidence of a crime that he wouldn’t otherwise reveal.

    Still, if the occupant of the room wanted privacy, why did the occupant invite anyone in the first place? It was easy enough for them to conceal the evidence of the crime before inviting technician in to fix the internet.

    There are a lot of other facts in this case that are troublesome, but this search was consensual. As it turns out, a criminal should never reveal evidence of a crime whether or not the technician was a government agent.

  • marcus

    @16 Thanks, I see your point but I still don’t consider this a “consensual” search, just a classic case of police state deceit.

  • EnlightenmentLiberal

    @David C Brayton

    First, the overemphasis on privacy w.r.t. the fourth amendment and the constitution at large is a fundamental mistake. You are ambiguous as to whether this applies to you, so apologies if you already agree with me. The fundamental mistake is that the fourth amendment is a balancing act between 1- privacy interests and interest to avoid inconvenience, vs 2- legitimate government interest to catch criminals. Rather, the correct balancing act is between 1- legitimate government interests to catch criminals, and 2- preventing a police state and government tyranny.

    I do agree that part of the analysis of whether a search is reasonable is whether there is an expectation of privacy. Offhand, I might prefer to rephrase it as: “How severe is the violation by the police of generally applicable law to carry out the search?”.

    You have good points in #6. had3 in #10 has good points as well. I don’t know offhand. I am leaning towards had3’s point. Under what authority did the government disable the internet service? Can I find the officer who did it and disable his internet service? If I did that, it would be a crime, but when the officer does it, it’s not a crime? That’s a problem.

    Offhand, I want to investigate the legal theory that the cop illegally disabling the internet service as a pretense to gain entry and perform the search, and as such it colors the entire search, and thus the entire search results should be thrown out under the exclusionary rule.

    Let’s take this logic farther. If the cops can disable internet service seemingly with zero authority to do so and get away with it, what else could they do? Could they infest the house with insects and pretend to be exterminators? Could they flood the house and pretend to be plumbers? Could they knock down part of the house and just look inside? Where would the silliness end?

    I think I’ve convinced myself. I’ll take this position until I hear something compelling otherwise.

    • David C Brayton

      The crux of the matter is the disabling of the internet. If this is constitutionally OK, then everything else you listed is probably OK, at least to some extent (except for knocking down the walls–clearly not OK).

      Certainly, I don’t like the cops playing dirty tricks like this but I doubt whether it rises to a constitutional violation. And even if it doesn’t rise to a constitutional violation, where should the line, legislatively speaking, be drawn?

      There are lots of cases where the cops are permitted to lie. During an interrogation, they can lie about what evidence they have, the seriousness of the punishment, and well, just about anything. When inquiring about whether you should consent to a voluntary search, they can say that they are only looking for illegal guns and they don’t care about drugs. Well, guess what, if they find drugs, it was still a voluntary search. The police can also create sophisticated subterfuges in order to fight crime. Undercover agents are even permitted to commit minor crimes whilst undercover.

      It seems that a lot of these dirty tricks are OK and should be permitted.

      So, the issue is to what extent should we permit the government to engage in dirty tricks in order to fight crime.

      Also, it seems to me, the police should always be required to disclose the details of how they came into possession of evidence (with certain exceptions). The use of technology like Stingrays should be disclosed as a matter of course and non-disclosure agreements between the feds and local law enforcement are anathema to a free society.

      In this case, the police were quite reluctant to disclose their investigative methods. Geez, I wonder why?

      Free legal advice: Never, ever trust the cops. Don’t even talk with them, ever. Their job is to arrest and punish people. No cop has gotten a promotion for showing that someone is innocent.

  • eric

    @6:

    deception in law enforcement is permitted in lots of situations and considered a valid technique.

    There is nothing illegal about the FBI secretly entering your home to bug it once they have a warrant to do so. But pretending to be technicians is not a legal search warrant. Inviting technicians into your home to fix your internet is also not a legal search warrant.

    Does that make it clear?

  • EnlightenmentLiberal

    @David C Brayton

    Wait. Knocking down a wall is clearly not allowed, but flooding the house might be ok? What? Do you know how severe flooding damage is? It might be cheaper to repair a broken wall than flood damage.

  • eric

    David Brayton:

    the issue is to what extent should we permit the government to engage in dirty tricks in order to fight crime

    Many of the things you mention are legal because lying is not generally a crime. When it is a crime (such as lying under oath in court), police are required to tell the truth just like anyone else. Being a policeman does not give them the right to break the law whenever they want…but it doesn’t make lying-in-general a criminal act, either.

    For more severe ‘dirty tricks’ used against its own citizens, we already have a mechanism in place for deciding when to permit the government to do that. That mechanism is called a warrant. If they don’t get one (and there’s no immediate flight, crime, or safety risk), then no otherwise-illegal dirty tricks.

  • http://motherwell.livejournal.com/ Raging Bee

    This is (or at least used to be) a standard means of getting access to foreign embassies to plant bugs and wiretaps: introduce a “fault” in the target’s phone lines, wait for them to call for a repairman, then send in agents to plant surveillance devices while “repairing” the phone line. UK’s MI-6 did that to their Soviet embassy’s cipher room during the Suez crisis.

    The only difference here is that they’re using this tactic to get evidence for a warrant, not to plant bugs.

  • doublereed

    I have no idea what you’re saying David Brayton, You can’t just circumvent warrants with that much ease. Wtf is the point of the warrant then? They want to do deceitful stuff like this, then they need a fuckin’ warrant. Sometimes for less privacy-prone issues you can get more general court orders where warrants aren’t possible. But to pretend that this is legit in any sense is nonsense, and it is exactly what the 4th Amendment is supposed to protect against.

    Quite frankly, this sounds like something the Stasi would do.

  • psweet

    DavidBrayton, lets ask it this way — if the FBI had lied to the court to obtain a warrant, would that rise to the level of a constitutional violation? And if so, why doesn’t lying to the suspect. Don’t forget, during an interrogation, the suspect has the right to simply say “I’m not talking”, and if the police lie about that, it is a violation, isn’t it?