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How you doing, law enforcement officers. It's Anthony Bandiero. Here, Senior Legal instructor with Blue to Gold law enforcement training. 

I just read a case and I want to share it with you because it's really has some really good teaching points. The case is pagane Gonzalez V. Marino, it's out of the First Circuit. And essentially what happened here is this. FBI agents were interested in a suspect because they believed that he had child pornography on his laptop. Instead of getting a search warrant, they came up with a clever idea. They went to his house, and they said, Hey, your laptop is sending malicious signals to Washington, DC. But guess what? We're with the government; we're here to help, we'll fix it for free. If you if you let us look at the laptop. We'll find out what's kind of going on. And we'll fix it for free the suspect consents for the entry and the search of the laptop for the malicious software. The FBI agents then find what they were looking for. And they said that they'll do some more work on the computer at the office, they take the computer, they write up a search warrant for the home and arrest one for the suspect. Right. And the suspect says, Look, that's not fair. You can't do that. You told me you're I got malicious software, that I'm the victim of malware. And you're trying to help me with this. And instead, you're looking for evidence of child pornography, in the First Circuit agreed. Right. And let's look at why. First of all, the general principle here is that when uniformed officers, uniform doesn't mean always mean uniform, but known officers when known officers create an emergency in order to enter a home to search. That is that is not good. You cannot do that. Because it invalidates the consent, because what reasonable person what's what not agree? Under those circumstances? Right? It's kind of like, it's kind of like this if police went to somebody's home and said, Hey, we believe that there there's a kidnap victim, a little girl that got kidnapped Jesse, A witness said that she's in your house? And can we go look around? I mean, most people are gonna like, especially because they didn't, this is a lie, they didn't connect anybody, they're gonna allow the police to come in and look for the for the kidnap victim. And instead, if the police are looking for a marijuana grow operation, that is going to, you know, invalidate the consent because they created an emergency for the kidnap victim. So that's what happened here, right? The agents are saying that we're looking for this malicious software that's coming from your computer, a reasonable person is going to allow them to get rid of that software so that they're not breaking the law and so forth. The other issue with uniformed officers is you cannot claim to have an authority that you don't have, right? You can't say, Hey, I have a search warrant for your home. But you know what, I'd really like your cooperation, if you do cooperate, I'll let you know, the prosecutor know that you cooperated and so forth. And they're like, Okay, come on in, that is going to completely invalidate the consent. Because basically, what you're telling a person is, I'm going to search anyway, whether you consent or not, but can you will you consent, that is not a freely, involuntarily involuntary consent. So you don't want to do it that way; those things will invalidate consent. And that's what happened here. But while we're on the topic of lying in order to search somebody's home, and I want to make sure that we're talking about deception to search a home, right, we're not talking about general principles regarding lying and relying on interviews and interrogation or lying to a suspect on the side of the road. That's totally different. But the home is the most protected area of the Fourth Amendment. And whenever officers are kind of pushing the edge of what's acceptable conduct, the courts are going to scrutinize it. So the other issues with undercover officers, and here's the general rule, you may lie as to your identity, but not your purpose. You may lie as to your identity, but not your purpose. You can lines, you know, because you're a cop, and you can say you know what, you can knock on somebody's drug dealers door and say, Hey, I would like to buy some drugs. That's clearly a lie about who you are. You are a cop. But you're lying and said you want to buy drugs, but what's your purpose? Your purpose is to buy drugs. So you're the next factor is your conduct must be in line with your purpose. Your conduct must be in line with your purpose. What does that mean? That means that when you go into this protected area, the home, you must do things that are aligned with your stated reason for being there. Right.
So for example, if the drug dealer says Okay, stay in the living room, I'm gonna go get the drugs from the kitchen. And while he's in there, you're lifting up seat cushions, you're opening up drawers, you can't do that you're opening up a ledger and reading you know unless it's in plain view, you can obviously look at it if it's in plain view, but if it's a closed book, You cannot open it and look at a drug ledger, because that's not your purpose. You didn't tell them that you want to go in there and search for evidence, you told that you want to buy drugs. And a drug buyer would not a reasonable person who was selling drugs would not believe that if I allow something that my home to purchase drugs, that that also means looking at the seat cushion. So I hope that makes sense. And one last example is to kind of show the parameters here is that while you're in there, you say, Hey, can I use the bathroom? He says, Yes, it's the last door on the right. So as you're walking down the hall, you look to your left to an open door bedroom, and you see a meth lab. Can you use that information? Absolutely. It's in plain view, it's within it's the context is when within the purpose of what you stated, which is to use the bathroom, and he told you where it is. So there's no violation there. What about if you walk past the bathroom, and you go into a master bedroom or there's another bathroom, and you act like you're going to use that bathroom instead? And then as you're in that master bedroom, you see, you know, illegal firearms and illegal drugs. Is that lawful? No, because now you've exceeded your purpose. Right? You told him he told you to use the bathroom on the right in the hallway, and you went into the master bedroom. So I hope that kind of helps you think about the parameters of using a deception to get into somebody's home in search. If you like this these videos, please hit the like button and subscribe. I'm also looking for more search and seizure questions so I can help answer; email me at info at Blue to gold comm info at Blue Gold calm. Also, if you want me to come to your agency and train you and your fellow officers on advanced search and seizure, please also email me until next time, be safe