The Kentucy Supreme Court is about to hear a case that would further nibble away at what’s left of the Fourth Amendment:

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.”

[...]

“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.”

If the Kentucky Supreme Court rules for the state in this case, what’s to stop the police from coming to your door and concocting a story like, “I hate have to tell you this, but your son was killed a few hours ago in a car accident. Mind if we come in and talk to you about it?” Once inside, then, they snoop around your house for marijuana.

Or maybe police in Washington State visit the home of a suspected online gambler. They tell him the have reason to suspect he’s dealing cocaine. Knowing he has no drugs in the home, he consents to a search, at which point they seize his computer, where they find evidence he’s been wagering online.

Comfortable with that?

Me neither.

My guess is that the search will be upheld. And though I obviously don’t think police should be able to lie to you to get into your home for a drug search, the problem is that it’s difficult to distinguish this case from other, less-clearly-outrageous police ruses:

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.

I’d love for someone to explain to me why I’m wrong, but the only real difference I see between the two cases is that one is a consensual crime, while the other is a real crime, with real victims.

Perhaps a principled proponent of civil liberties should be just as outraged by police tomfoolery aimed at collecting spit from a suspected serial killer and a ruse used to get access to a home for a pissant drug search. But in all honesty, I’m not.

I am, however, troubled by the discrepency, and my ability to be okay with one, but not the other. It seems clear that this case could well pave the way toward all sorts of police abuses, and in many ways eviscerate what little of the Fourth Amendment we have left.

But the safeguards in our criminal justice system don’t expand or contract depending on the serious of the crime (should they? It’s a good queston — I’m not sure.). And regardless of my opinion, the fact is, as uncomfortable as the public may be with the police tactics used in the Kentucky case, they’re not going to be so outraged that they’re willing to do away with police misdirection used to catch more dangerous suspects.

The problem is of course the drug laws themselves, which make these types of tactics far more common than they ought to be. If the resolution of this case only affected homicide suspects, it’d be a lot less troubling. But given the glut of laws in this country, and that at a given time any one of us is probably breaking several, its implications go quite a bit further than that.

Thanks to law school chum Patrick Neely for the tip.

This entry was posted on Friday, August 18th, 2006 at 9:45 am by Radley Balko and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.