It is a violation of the Fourth Amendment for law enforcement to pose as internet service technicians for the purposes of gaining entry after cutting the service, a federal judge has ruled. The ruling stems from United States v. Wei Seng Phua, et al., a case in which the FBI, Nevada Gaming Control Board, and employees and Caesar's Palace Hotel & Casino suspected an illegal gambling ring betting on the 2014 FIFA World Cup.
The defendant, Wei Seng Phua, had been suspected by Caesar's staff of having an illegal gambling ring set up in his hotel suite based on demands for private internet service as well as large amounts of computer equipment and testimony from employees that had been in the suite that there were arrays of monitors with Chinese text and what appeared to be betting odds up on the monitors.
While investigating, the FBI had Agents deliver a laptop one of Phua's co-defendants had requested from Caesars, disguised as technicians. The butler for the suite accepted them into part of the suite, but when the undercover agents attempted to go past a certain area claiming they needed to check the internet connection, the butler denied them citing the fact that she had instructions to keep the interior private. After the butler left, the agents entered anyway and began searching until the butler came back and ordered them to leave.
To gain access to the interior of the suite, the FBI had cut the internet access to the suites, prompting Phua to have a service call scheduled. The technicians that came, however, were FBI Agents disguised as service provider employees. Based on seeing a known illegal sports gambling website on computer screens while in the suite, the FBI was able to obtain a search warrant to search the entire villa as well as any computer equipment.
The FBI and Department of Justice (DOJ) argued that there was no violation of the Fourth Amendment because Phua willingly let them into the suite, and cited previous court cases allowing law enforcement to be invited into private places while masquerading as someone or something else. The DOJ also noted that ruses were a routine investigative method for law enforcement working undercover. Magistrate Judge Leen recommended to the District Judge to rule in favor of the FBI, arguing that Phua had “surrendered [his] privacy to what [he] exposed to the view of Lopez and Kung when [he] admitted them to fix the fake DSL disruption.”, while noting that she did agree that the FBI exceeded the scope of their consent given when they delivered the laptop.
However, Phua argued that since the FBI created the need for him to call for the service provider in the first place, any evidence seized from the search should be suppressed. Phua also argued the search was illegal because the FBI knew the connection could not be fixed from the inside and that they stayed longer than they needed to. Nevada District Judge Andrew P. Gordon agreed with Phua that the FBI did violate his Fourth Amendment rights. Gordon notedNevada District Judge Andrew P. Gordon agreed with Phua that the FBI did violate his Fourth Amendment rights. Gordon noted
“Under the totality of the circumstances in this case, I conclude that the officers violated Phua’s Fourth Amendment rights by creating the need for a third party to enter Phua’s hotel room to repair the DSL and then posing as repairmen to gain entry. Under these circumstances, Phua’s consent was not voluntary within the Fourth Amendment’s meaning. Allowing law enforcement to engage in this conduct would eviscerate the warrant requirement. Authorities would need only to disrupt phone, internet, cable, or other “non-essential” service and then pose as technicians to gain warrantless entry to the vast majority of homes, hotel rooms, and similarly protected premises across America.”
Judge Gordon also cited the fact that previous rulings on Fourth Amendment entry did not allow for police to cause problems for cause to enter. Police are allowed to search if invited in, or allowed to come in if invited in while undercover. Judge Gordon cites that in United States v. Giraldo, the judge ruled that the police were not allowed to pretend to work for a gas provider and gain entry based on a claim they were looking for a leak, as the only “free choice” was to allow them to rectify a life-threatening situation and could undermine trust in emergency warnings. Also cited was United States v. Hardin, in which the police had someone who had some authority to enter a residence, in this case an apartment manager, to check the interior of a department to see if the defendant was inside.
Judge Gordon also rebuked Magistrate Judge Leen's assertions that because internet service was not an “essential service” that can cause physical damage or danger, such as water, gas, or electricy, Giraldo did not apply. “What separates this case from any that have come before is the additional fact that here the Government was not just taking advantage of a fortuitous opportunity. Rather, the Government created the need for the occupant to call for assistance from a third party by cutting off a service enjoyed by the occupant.”
Phua is the only remaining defendant from this event, with the seven others entering into plea agreements. As this ruling nullifies nearly all evidence against Phua, the case will likely be dismissed for lack of remaining evidence.