Trespass and Deception

INTRODUCTIONPolice routinely use deception to get into people's homes without a warrant or probable cause. They have posed as UPS delivery persons2 or homebuyers,3 or they say they are looking for a kidnapping victim4 or a pedophile,5 when really they are looking for drugs, guns, or stolen property. Recent years have brought hundreds of reported decisions concerning such police ruses.6 On the federal level, law enforcement, both civil and criminal, has sharply increased its use of undercover officers.7Police deceptions can become somewhat involved, engendering both alarm and perhaps grudging admiration. In United States v. Baldwin,8 for example, a police officer chose to investigate a Memphis nightclub owner by imbedding himself in the suspect's life for nearly six months. The officer took a job as a bartender at Baldwin's Playgirl club, soon becoming manager of the club, driver of Baldwin's car, and even a roommate in Baldwin's home. The officer used his special access to search Baldwin's car and bedroom, finding cocaine residue in both places-all without a warrant or probable cause. Nevertheless, the Sixth Circuit held this investigation did not violate the Fourth Amendment; in fact, it held the Fourth Amendment did not even apply.9Courts have generally held that police deceptions, at least when the officer lies about both identity and purpose, do not violate the Fourth Amendment.10 The deceptive entry, according to these courts, does not violate a person's reasonable expectation of privacy and therefore does not count as a Fourth Amendment search.11 The fact that the officers have a good motive-to ferret out crime-also has played a role in courts' assessments.12But this ample leeway for police deception may be about to change. In the last two years, the Supreme Court has supplemented the privacy test for the Fourth Amendment search by creating a new test based upon civil trespass to property.13 In United States v. Jones and Florida v. Jardines, the Court held that when the police commit a civil trespass to obtain information, they have conducted a Fourth Amendment search, generally requiring a warrant and probable cause.14 As Justice Scalia wrote for the Court in Jones, "for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas . . . it enumerates."15 The trespass test, as a supplement to the privacy test, would create a bright-line rule and a constitutional "minimum"16 that the easily manipulated privacy test did not supply. Any civil trespass to the home, even a technical one,17 used to obtain information, counts as a Fourth Amendment search.The question thus arises: will this new trespass test change the police deception cases under the Fourth Amendment? Neither Jones nor Jardines involved deception, but their trespass rule for Fourth Amendment search would still apply to police intrusions by deception. That is, if the police officers were ordinary citizens, would their conduct amount to a trespass exposing them to civil liability? If so, then the same police conduct should likewise be considered a trespass and, therefore, a Fourth Amendment search. If, for example, the officer's intrusion into Baldwin's home described above amounts to a trespass because he had obtained consent by deception, then the Fourth Amendment would apply, requiring him to first obtain a warrant based upon probable cause before engaging in the deceptive tactics described above. Thus, to answer a Fourth Amendment question, we must answer a civil trespass law question.This Article is the first to look to the law of civil trespass to determine whether the police trespass when they intrude by deception, thereby triggering Fourth Amendment protections. In other words, we must survey the civil trespass cases that involve deception to support the conclusion that police trespass when they employ similar deception.The bad news is that these civil trespass by deception cases themselves are largely a mess. …