Can the Police Search Your Home by Lying to You?

Consent is a way for officers to conduct a search when they otherwise don't have a legal basis for it, like probable cause or a warrant. But, to legally justify a search, consent must be voluntary. Is consent voluntary when police lie to get it?

Although people often agree to police searches when they feel pressured or intimidated, those feelings don't necessarily mean that the resulting search is illegal. However, officers can go too far in manipulating a suspect, to the point that a court will hold that the suspect's consent was invalid. In that kind of situation, evidence the police find will probably be inadmissible in court.

This article addresses the following questions:

• Is a search legal if officers pretend they have a warrant for it?
• Is a search legal if the police don't tell the truth about what they're looking for?
• Is a search legal if the police lie about who they are?

Legality of a Search: Police Officers Pretend to Have a Warrant

In the following scenario, a court would probably consider the search illegal and suppress (toss out) the evidence:

• Officers want to search a home but don't have a legal justification.
• Officers tell Suspect they have a search warrant (even though they don't) and that Suspect had better let them search.
• Suspect agrees to let Officers search the home.
• Officers find incriminating evidence.

Consider this illustration:

The police arrest Susanne on the front porch of her house. They don't have a warrant, but they nevertheless barge into the house and begin to look for evidence. Once inside, they knock on a bedroom door, and Sally, Susanne's sister and roommate, comes out. They ask if they can take a look around the house, but they also tell Sally that a search warrant is on its way. In reality, the officers haven't sought a warrant. Sally gives them the okay to search the house, and in one of the rooms, they find evidence incriminating Susanne.

The judge holds that the search of the home was illegal. Not only had the officers already begun searching before they talked to Sally, but they also falsely told her that a warrant authorizing the search was on its way. Consent given under these facts couldn't be considered voluntary; the circumstances indicated it would be futile for Sally to refuse. (People v. Mullaney, 104 Mich. App. 787 (1981).)

Legality of a Search: Police Officers Pretend to Investigate Something Else

Another, perhaps, more common way officers interact with suspects is by being less than forthcoming about why they want to take a peek into a home. Usually, if officers simply fail to tell a suspect that an inspection could lead to criminal charges, consent will be valid. On the other hand, consent may be no good when officers mislead the person about who or what they're investigating.

Case Example: Looking for One Thing, Finding Another

Federal agents have an indication that Bobby might have an illegal firearm. They go to his house; Bobby, who has a prior felony conviction, understands that the agents are there to look for a machine gun. He tells the agents that he has other guns. He lets the officers into the house and shows them several firearms. None is a machine gun. He is later charged with unlawful firearm possession by a convicted felon.

A federal appeals court holds that Bobby's consent was valid. It observes that officers don't have to give an "encyclopedic catalogue" of everything they could be interested in finding in a search. The court also notes that there was no indication that the officers set out with a motive other than to find the machine gun they suspected Bobby had. According to the court, that weapon, rather than Bobby's potential illegal possession of other guns, was their motivation. And they didn't indicate to him that nothing other than a machine gun could lead to prosecution. The guns are therefore admissible evidence. (U.S. v. Davis, 749 F.2d 292 (5th Cir. 1985).)

Case Example: Fake Emergency

An agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") begins investigating Max. Max reportedly owes money to a suspected firearm trafficker and is selling drugs out of his apartment. The agent surveils Max's apartment for several months but doesn't see anything that would establish probable cause for a warrant. So, the agent and a colleague knock on Max's door and report that they are there because they have received an anonymous tip that there are drugs and bombs in the apartment. The agents explain that it's a matter of community safety. The primary agent asks if he and his colleague can come in and have a look around. He says, "We're not here to bust you on a bag of weed. ... We have bigger fish to fry than a small bag of weed." Max, who has a prior felony, gives the agents permission to search the apartment. During the search, they find a loaded handgun in a hole underneath a sink.

The court finds that the search was illegal. It explains that "deception and trickery" are factors that can make consent involuntary. Another factor, the court explains, is whether officers tell a defendant that he or she has a right to refuse consent to a search. (Officers generally aren't required to advise defendants of the right to refuse, though.) The court ultimately holds that Max could have reasonably believed he and others were in danger because of a bomb. How could he say no to that? His "consent" was therefore involuntary. (U.S. v. Harrison, 639 F.3d 1273 (10th Cir. 2011).)

Legality of Search: Police Pretend Not to Be Cops

If police officers get into a house by deceiving an occupant into believing they're something other than police officers, evidence they find inside might be inadmissible in court. But many courts—even if not all—have said it's fine for the police to play pretend in order to get you to simply open the front door and talk to them. Consider the following examples.

Case Example: Lying to Get the Door Open

Police officers in Colorado receive an anonymous tip that people are selling drugs out of an apartment. Officers Carver and Hauk go to the apartment to conduct a "knock and talk" with the occupants. Someone inside asks (through the closed door), "Who is it?" Hauk responds, "Maintenance."

Preston opens the door, and the officers can see another man, Wallace, and a glass pipe on a table. Seeing the officers, Wallace runs toward the back of the apartment. Carver, who assumes Wallace is fleeing, destroying evidence, or trying to get a weapon, enters the apartment to pursue. When Carver catches up to Wallace out behind the apartment, Wallace drops a knife. Carver finds cocaine in Wallace's pockets.

Before his trial for several drug-related offenses, Preston moves to suppress the evidence found inside the apartment. He argues that the police unlawfully pretended to be maintenance workers and that their deceit led to the entire episode. The appeals court denies the motion. The court explains there's a difference between using deceit only to get an occupant to open the door and using it to gain consent to enter the residence. The court observes that the officers used their ruse only to get someone to open the door—not to get someone to allow them inside. (People v. Nelson, 296 P.3d 177 (Colo. App. 2012).)

Case Example: Undercover Drug Sale

The U.S. Supreme Court has also sided with law enforcement in a classic case of undercover tactics. The defendant had invited an undercover agent to his home for a drug sale. His only concern was whether the agent was a willing and able buyer. During two visits to the defendant's home, the agent never saw, heard, or took anything that the defendant didn't offer up. The Court held that the agent's misrepresentation of his identity didn't violate the defendant's Fourth Amendment rights. It held that the drugs the undercover officer purchased were admissible at trial. (Lewis v. United States, 385 U.S. 206 (1966).)

Case Example: Trickery Goes Too Far

Cases can go the other way, though. For example, in a 1986 Ohio case, two officers visited a fraternity house to follow up on complaints about illegal alcohol sales there. One of the officers lied to the fraternity house manager, saying he was an alum of the house. He said he wanted to take a look on behalf of his brother, who was considering attending the school and joining the house. The manager showed the officers around. One officer saw a soda machine that dispensed beer cans and bought one. Before leaving and getting a search warrant, one of the duo gave the manager a fake name and address.

The state supreme court held that the house manager's invitation to enter wasn't "free and voluntary" consent, and that the officers unlawfully entered the house. The court noted that the home wasn't a "commercial center of criminal activity," and that the invitation to enter wasn't "for the purpose of conducting illegal activities." (State v. Pi Kappa Alpha Fraternity, 23 Ohio St. 3d 141 (1986).)

Getting Legal Help

Consult an experienced lawyer if you would like an understanding of how the law in your jurisdiction applies to a particular situation. A knowledgeable lawyer will be able to evaluate the circumstances and assess your options.