Tuesday, October 14, 2008

Choose Your Friends Wisely

Today the Supreme Court heard oral argument in a case that deals with an interesting question of Fourth Amendment law: if you let someone into your house who turns out to be working for the cops, have you invited them in as well?

Sherry Colb at Findlaw has the details:

Four federal Circuits (the Sixth, Seventh, Ninth, and Tenth) have adopted varying versions of a doctrine known as 'consent once removed.' According to this doctrine, police do not need conventional 'consent' (in which a person voluntarily agrees to have the police enter his house or search his property) for a warrantless search to pass Fourth Amendment muster.

Rather, once a person has made 'friends' with an informant or undercover police officer and exposed his house (and potential evidence of crime within that house) to the 'friend,' this voluntary exposure - coupled with the 'friend's' signal of probable cause to the police - amounts to the equivalent of consent to an official police home entry or search by other officers.
The problem is that the doctrine, as Colb puts it, rest on the "untenable fiction" that once you invite someone into your home, you've invited everyone in. It's one thing, it seems to me, if a CI or undercover cop gains your confidence and then spills details about your private life to the police (as in Jimmy Hoffa's case). It's completely different to create some sort of "open door" policy just because you invite someone into your home, whom you don't even know is a cop in the first place! Is it too much to ask that the cops do it the old fashioned way and get a warrant first?

Regardless, the moral to the story (as is the moral to lots of crime stories) - choose your friends wisely.

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