Ky. Sup. Ct. will consider if police can lie to gain entry to home.

The Courier-Journal in a feature story by Andy Wolfson reports that the Ky. Supreme Court will hear oral arguments on the issue of whether the police can lie to gain entry to a home.  In a McCracken County case, a detective told  Frederick Krause III, that the a small girl had said she had been sexually abused in his home and the officer wanted to check out the furniture and bedding.  This was a fabrication and the intent of the search was to look for drugs.  The officer found drugs and made the arrest.  This issue raises questions if consent can be voluntary when it is procured as the basis of a ruse. 

 Several prior decisions of the Ky. Supreme Court tend to predict that court will allow ruse to justify search.
 

Adcock v. Com., 967 S.W.2d 6 (Ky., 1998)
W]hen police officers execute a search warrant on a personal residence by conducting a successful ruse that results in the occupant voluntarily opening the door which is followed by the officers announcing their identity and purpose prior to entering the home, these actions are reasonable within the requirements of the Fourth Amendment.

        This Court granted discretionary review. Additional facts will be set forth as necessary in the course of the opinion.

        As noted by the Court of Appeals, RCr 9.78 provides the procedure for conducting hearings on suppression motions, as well as the standard for appellate review of the trial court’s determination. “If supported by substantial evidence the factual findings of the trial court shall be conclusive.” RCr 9.78. When the findings of fact are supported by substantial evidence, as we conclude they are herein, the question necessarily becomes, “whether the rule of law as applied to the established facts is or is not violated.” Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996) (citing Pullman-Standard v. Swint, 456 U.S. 273, 289, n. 19, 102 S.Ct. 1781, 1791, n. 19, 72 L.Ed.2d 66 (1982).

        Both the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution protect the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), the United States Supreme Court held that the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. Id. at 933, 115 S.Ct. at 1918. The knock and announce rule has three purposes: (1) to protect law enforcement officers and household occupants from potential violence; (2) to prevent the unnecessary destruction of private property; and (3) to protect people from unnecessary intrusion into their private activities. Id.

        However, “[t]hat is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.” Id. at 934, 115 S.Ct. at 1918. The Wilson court left “to the lower courts the task of determining the circumstances under which an unannounced

entry is reasonable under the Fourth Amendment.” Id. at 936, 115 S.Ct. at 1919.

        The Court has recognized that the knock and announce requirements could yield when exigent circumstances are present. “In order to justify a no-knock entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards v. Wisconsin, 520 U.S. 385, —- – —-, 117 S.Ct. 1416, 1421-1422, 137 L.Ed.2d 615 (1997). The Court in Richards did note, however, that there is no blanket exception to the knock and announce rule in felony drug investigations, but rather “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock and announce requirement.” Id.

        Appellant argues that a ruse, like a no-knock entry, may be employed only in the presence of exigent circumstances. Appellant concludes that since none existed in this case, police were bound by the knock and announce requirements. Thus, the issues before this Court are whether a ruse may be used in the absence of exigent circumstances, and whether the ruse employed by the police in this case, and the announcement and entry that followed, was unreasonable under the Fourth Amendment because it frustrated the purposes of the knock and announce rule. Inasmuch as this jurisdiction has not addressed the knock and announce rule, we look to the federal court and other jurisdictions for guidance.

        A ruse is constitutionally distinguishable from a no-knock entry. State v. Moss, 172 Wis.2d 110, 492 N.W.2d 627 (1992), cert. denied, 507 U.S. 977, 113 S.Ct. 1428, 122 L.Ed.2d 796 (1993), overruled on other grounds by State v. Stevens, 181 Wis.2d 410, 511 N.W.2d 591 (1994). In Moss, officers employed a pizza delivery ruse virtually identical to this case. When the defendant opened the door, officers announced “police, search warrant.” As the defendant attempted to close the door, one officer placed his foot in the doorway to prevent the door from closing, and pushed his way in. In upholding the use of ruse to gain entry, the Wisconsin Supreme Court found that the police action did not constitute a no-knock entry because the officer did, in fact, announce his presence and purpose before entering the defendant’s residence. Id. 492 N.W.2d at 630. Furthermore, the court held that the use of the ruse to entice the defendant to open the door in the execution of a search warrant did not violate the Fourth Amendment or the knock and announce rule because “the reasons behind the rule were satisfied–there was no real likelihood of violence, no unwarranted intrusion on privacy, and no damage to the [defendant's residence].” Id. at 631; see also Wilson, supra, and Commonwealth v. Goggin, 412 Mass. 200, 587 N.E.2d 785 (1992).

        In fact, notwithstanding the presence of exigent circumstances, federal and state courts in interpreting either knock and announce statutes or the common law knock and announce rule are in general agreement that there is no constitutional impediment to the use of subterfuge. Entry obtained through the use of deception, accomplished without force, is not a “breaking” requiring officers to first announce their authority and purpose. United States v. Salter, 815 F.2d 1150 (7th Cir.1987); United States v. Contreras-Ceballos, 999 F.2d 432 (9th Cir.1993); Hawaii v. Dixon, 83 Hawai’i 13, 924 P.2d 181 (1996); State v. Myers, 102 Wash.2d 548, 689 P.2d 38 (1984); Commonwealth v. DeCaro, 298 Pa.Super. 32, 444 A.2d 160 (1982); State v. Iverson, 272 N.W.2d 1 (Iowa 1978).

        The trial court in this case relied on Salter, supra, in which an officer, posing as a hotel clerk, telephoned appellant’s hotel room and requested her to come to the front desk. When appellant opened the door, officers positioned outside of her hotel room prevented her from closing the door and immediately entered the room. The Seventh Circuit engaged in a statutory analysis and held that there was no “breaking” and thus 18 U.S.C. § 3109 1 was not implicated by entry through an open door. Since the occupant voluntarily opened the door, entry by ‘ruse’ was permissible. See also Contreras-Ceballos, supra (an officer’s use of force to keep open a door that was voluntarily opened in response to the officer’s ruse was not a “breaking” so as to implicate § 3109.)

        We find the recent case of Hawaii v. Dixon, supra, to be factually similar to the case at hand and quite instructive. In Dixon, officers employed a ruse to gain entry into a defendant’s hotel room. Three officers placed themselves on the sides of the defendant’s hotel room door while a hotel security guard approached and knocked on the door. The security guard informed the occupants that he was there to check the air-conditioning. When the hotel door opened, the officers “entered the room simultaneously, announcing ‘in an assertive tone of voice’ that they were the police and ordering [the defendant] to get down.” 924 P.2d at 183. A search of the room produced drugs and paraphernalia.

   

     The Hawaii Supreme Court held that the use of a ruse violated neither statutory law nor the Fourth Amendment because the purposes of the knock and announce rule were not frustrated. Id. at 182. The court first engaged in a discussion of statutory law from various jurisdictions and concluded that entry gained through the use of deception is permissible so long as force is not involved. Id. at 188. In other words, an entry accomplished without force is not a “breaking” within the meaning of the majority of state statutes, as well as 18 U.S.C. § 3109, and therefore does not implicate the knock and announce rule. “[T]he employment of a ruse to obtain the full opening of the [defendant's] door was not a “breaking.” And since the door was then wide open, the subsequent entry … did not involve a ‘breaking’ of the door.” Id. at 187. (quoting Dickey v. United States, 332 F.2d 773 (9th Cir.1964)).

       After analyzing the Wilson v. Arkansas, supra, standard and a number of opinions from other jurisdictions, the Dixon court further held that the use of a ruse to gain entry did not violate the defendant’s constitutional protections under the Fourth Amendment. Id. 924 P.2d at 189. The Court adopted the reasoning set forth by the Washington Supreme Court in State v. Myers, 102 Wash.2d 548, 689 P.2d 38, 42 (1984):

        The guiding factor in determining whether a ruse entry, to execute a search warrant, constitutes a “breaking” under the Fourth Amendment should be whether the tactic frustrates the purposes of the “knock and announce” rule. Those purposes are: (1) reduction of potential violence to both occupants and police resulting from an unannounced entry, (2) prevention of unnecessary property damage; and (3) protection of an occupant’s right to privacy.

        It appears obvious that a ruse entry, especially when the deception is not realized until after the entry has been accomplished, actually promotes both the purpose of preventing violent confrontation between the officer and the surprised occupant and that of preventing unnecessary property damage. (citations omitted)

        Accordingly, the Dixon court concluded that “[w]here the purposes of the knock and announce rule are not frustrated, and may, indeed, be furthered by the use of a ruse to obtain entry to execute a valid warrant, the tactic is not constitutionally unreasonable and, therefore, not violative of fourth amendment protections.” Dixon, supra at 191.

        Appellant further argues that even if this Court concludes that police may utilize a ruse to gain entry absent exigent circumstances, if such is unsuccessful, the police must still follow the knock and announce rule. “If the ruse employed is unsuccessful and the officers did not gain peaceful entry, then the ‘knock and wait’ rule comes into play.” State v. Ellis, 21 Wash.App. 123, 584 P.2d 428, 430 (1978).

        The flaw in Appellant’s argument is that she believes because the disguised officer

did not gain actual entry into her residence under the guise of a pizza delivery person, that the police did not gain peaceful entry and thus the ruse failed. As such, the officers were required to follow the requirements of the knock and announce rule. We disagree. The ruse was successful because it enticed Appellant to voluntarily open the door in the first place. At that point, the necessity for the ruse evaporated. Officers gained peaceful entry through the open door without having to use any force. As previously stated, such does not constitute a breaking or forceful entry. Although officers may have preferred to have gained access under the pretense of the delivery ruse rather than having to announce their identity, the ruse still accomplished its intended purpose, namely, to prevent Appellant from disposing of the drugs prior to the officers gaining entry into her residence.

        Even if the ruse in this case was unsuccessful, the trial court found that there were sufficient facts to conclude that the officers complied with the requirements of the knock and announce rule. The trial court specifically made the finding that the officers announced their presence prior to entering Appellant’s residence. Moreover, we reject Appellant’s proposition that the officers were required to wait until she specifically denied them access. Waiting would have served none of the purposes of the rule.

Because an occupant, in the face of a valid search warrant, has no right to refuse admission to police, no interest served by the knock and announce rule would be furthered by requiring police officers to stand at an open doorway for a few seconds in order to determine whether the occupant means to admit them.

        State v. Richards, 87 Wash.App. 285, 941 P.2d 710, 713 (1997); United States v. Kemp, 12 F.3d 1140 (D.C.Cir.1994).

        Contrary to Appellant’s assertion, we find nothing in the language of Wilson v. Arkansas, supra, to be inconsistent with the Dixon court’s analysis or our application thereof. The United States Supreme Court, while reiterating the knock and announce rule in the context of the Fourth Amendment, clearly has not foreclosed the use of police deception to gain entry into a residence for the purpose of executing a valid search warrant. Indeed, we agree with the decisions cited herein, that such a tactic, so long as it is accomplished without the use of force, promotes the underlying purposes of the knock and announce rule and is constitutional and reasonable under the Fourth Amendment.

        Accordingly, we hereby affirm the decision of the Court of Appeals upholding the trial court’s order denying Appellant’s suppression motion.

Riley v. Commonwealth of Kentucky, 120 S.W.3d 622 (Ky., 2003)
  Appellant’s “stalking horse” defense is premised upon his assertion that “Operation Night Vision” was a subterfuge to enable other police agencies to conduct unconstitutional searches of parolees’ residences under the guise of a parole officer’s “routine visit.” Prior to the decision in Knights, supra, a majority of federal courts had, indeed, held that a search was unlawful when the probation or parole officer was acting as a “stalking horse” for a police investigation, i.e., when the officer’s visit was but a ruse for an entry and search by the accompanying police officers. See United States v. Martin, 25 F.3d 293, 296 (6th Cir. 1994) (“[I]t is impermissible for a probation search to serve as subterfuge for a criminal investigation.”); United States v. Grimes, 225 F.3d 254, 259 (2nd Cir. 2000); United States v. McFarland, 116 F.3d 316, 318 (8th Cir.

1997); United States v. Oolev, 116 F.3d 370, 372 (9th Cir. 1997); United States v. McCarty, 82 F.3d 943, 947 (10th Cir. 1996); United States v. Coleman, 22 F.3d 126, 129 (7th Cir. 1994); Shea v. Smith, 966 F.2d 127, 132 (3rd Cir. 1992). However, in the process of reversing the suppression of evidence seized in a probation search that was for “investigatory,” as opposed to “probationary,” purposes, Knights eliminated the “stalking horse” defense.

        Because our holding rests on ordinary Fourth Amendment analysis that considers all the circumstances of a search, there is no basis for examining official purpose. With the limited exception of some special needs and administrative search cases, we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers.

        Knights, supra, at 122, 122 S.Ct. at 593 (citations and quotations omitted). The Ninth Circuit Court of Appeals has subsequently held United States v. Stokes, 292 F.3d 964 (9th Cir. 2002), that, in light of Knights, “our circuit’s line of cases holding searches of probationers invalid on the ground that they were subterfuges for criminal investigations is, in that respect, no longer good law.” Id. at 967 (overruling Ooley, supra).

        We agree that Knights eliminated the so-called “stalking horse” defense. Thus, we need not engage in a subjective examination of the official purpose behind this particular “Operation Night Vision” visit. We simply hold that the search of the remainder of Appellant’s mobile home did not violate his constitutional right to be secure against unreasonable searches and seizures.

Article on Courier-Journal:

Ky. court will consider if police can lie Ruse let detective gain entry to home

By Andrew Wolfson  – The Courier-Journal

When Kentucky State Police Detective Jason Manar knocked on the door of a Paducah home where he’d heard drugs were being sold, he knew the occupants probably wouldn’t consent to a search if he said he was looking for narcotics.

So he lied.


  
He said a girl claimed to have been sexually assaulted inside the house and that he wanted to examine the furniture and bedding to see if it matched the description she gave.

Manar was allowed into the home, where he found a small amount of cocaine and marijuana and then arrested the homeowner, Frederick Carl “Fritz” Krause III.

“I was outraged,” recalled Krause, who was fired from his job as a director at WPSD-TV after the March 2003 arrest. “You would think you could trust authorities to tell you the truth.”

Krause, then 29, pleaded guilty to possession of drugs and drug paraphernalia — but on the condition he could challenge the legality of the search.

Today, as a result, the Kentucky Supreme Court will hear arguments on an issue it has never addressed: Whether a defendant’s consent to a search can ever be “voluntary” — as required for a search without a warrant — when it is the product of a police officer’s deceit and misrepresentation.

Courts have long held that police may try to trick suspects during interrogations — by falsely telling them that their fingerprints were found at the scene, for example, or that a partner confessed and implicated them. The thinking is that the suspect is already in custody and has been read his rights.

But constitutional law experts say the use of trickery to get permission for a search is more troubling because it easily can be coercive.

“Anyone falsely accused of sexually assaulting a young girl would allow the search in order to clear himself,” said Wayne LaFave, professor emeritus at the University of Illinois College of Law and author of a six-volume treatise on searches and seizures.

Ruse raises questions
In the Krause case, McCracken Circuit Judge Craig Clymer upheld the search, in part because he said Krause and his roommate, who also was charged and convicted, could have refused it.

But Clymer said the ruse raised “serious constitutional questions” and was “not an appropriate police practice.”

Dissenting from a 2-1 decision affirming Clymer’s decision, Chief Court of Appeals Judge Sara Combs called the deception “a dangerous threat to the essence and integrity of the Fourth Amendment, which protects against unreasonable searches and seizures.”

Manar, who acknowledged in court that he made up the story to get into Krause’s home, now works for the FBI in Illinois. Reached by phone yesterday, he said he couldn’t comment on the court case, citing bureau policy.

A state police spokesman, Sgt. Phil Crumpton, said the department also couldn’t comment, because of the appeal.

But in a brief filed with the Supreme Court, Assistant Attorney General Courtney Hightower said deception alone does not invalidate consent to a search and that most courts have recognized that “ruses are a sometimes necessary element of police work.”

In Washington, for example, a state court found in 2003 that Seattle police did not violate the Constitution when they tricked a serial murder suspect into providing a sample of his DNA by sending him a letter — and a self-addressed, stamped envelope — from a phony law firm, inviting him to join a nonexistent class-action lawsuit. He licked the envelope, providing the DNA sample.

“You kind of wince a bit and it’s not something you want to do, but sometimes you have to use deception because it is necessary to solve crimes,” said Louisville Metro Louisville Police Detective Larry Duncan. “I refer to it as a little white lie.”

But police commanders say deception can backfire. “If you tell a suspect you’ve got his prints and he knows he wore gloves” when committing the crime, “he knows you’re lying, and you lose any rapport you’ve build up with him” said metro police Capt. Donald Burbrink.

Metro police Capt. Steve Thompson said deceiving a suspect into consenting to a search is a risk not worth taking — because of the chance the evidence will be suppressed. He said the department encourages detectives to get search warrants when possible.

Crumpton said state police have no policy on using ruses to get inside a home. The Lexington Police Department also has no written rules on that practice, but Maj. Robert Stack said its officers don’t do it.

Mike Schwendeman, a staff attorney at the Kentucky Department of Criminal Justice Training, which instructs officers from many police departments, said through a spokeswoman that officers must be extremely careful using deception in searches because consent must be given “freely and voluntarily.”

FBI spokesman Stephen Kodak said if agents use a ruse to get voluntary consent for a search, “our policy is to stay within the parameters of the deception. If we say we are a meter reader, we will search around the meter, not wander around the house.”

Searching for drugs
The events leading to Krause’s conviction began on March 18, 2003, according to court records, when another man that Manar had arrested on a charge of cocaine possession said he had bought the drug from Krause’s roommate, Joe Yamada.

Manar knew he didn’t have probable cause to get a warrant, so he went to their house in the middle of the night to see if they would agree to a search. He said he told Yamada or Manar — he wasn’t sure which — that a girl claimed she had been assaulted and that the assault took place at their house.

“I thought that would ease his mind a little more than confronting him with the drugs,” Manar said.

Inside, Manar said, he caught Yamada trying to hide a coke spoon, then found a bag of about 3 grams of cocaine in his bedroom and a bag with slightly more than an ounce of marijuana in another room.

Yamada and Krause pleaded guilty to marijuana and cocaine charges, as well as possession of drug paraphernalia. Yamada, who didn’t join the appeal, was placed on probation for three years, and Krause for 2½.

Krause, who now lives in a Chicago suburb where he manages a grocery store, has served out his probation. He said in a phone interview that he is continuing to challenge his conviction because “the right to be secure in your own home has gone out the window.”

His lawyer, Jeremy Ian Smith of Paducah, said the case is important to all Kentuckians.

“If the court upholds this decision,” he said, “the police will be able to show up at your doorstep, claim they have a report of a fire, and then search your place looking for the alleged heroin that some recently arrested nut who owes you money said would be there.”

Reporter Andrew Wolfson can be reached at (502) 582-7189.

 

 

 

Comments

  1. Bill Adkins
    10:45 am on August 20th, 2006

    I guess the police have weighed the risk of lying versus that of no-knock in the age of the Castle Doctrine. In the words of Tony Montana, “Meet my li’l friend.”