{"id":2470,"date":"2008-12-24T09:28:01","date_gmt":"2008-09-20T16:18:27","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-09-20T16:18:27","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2470","title":{"rendered":"Cal.5th: Police officer could pose as a home buyer and enter with real estate agent as long as officer does not exceed that consent"},"content":{"rendered":"

Officer acted as a potential buyer to access a home with a real estate agent to corroborate an informant, and this entry did not violate the Fourth Amendment because the entry never exceeded the extent of the consent given by the defendant to entries with the real estate agent. People v. Lucatero<\/a>, 166 Cal. App. 4th 1110, 83 Cal. Rptr. 3d 364 (5th Dist. 2008):<\/p>\n

In these limited circumstances, there is no constitutional violation undermining the validity and authority of the search warrant issued. We believe an investigating officer may pose as a potential buyer and enter a home under this misrepresentation, assuming the officer’s actions do not exceed the scope of the consent. The officer must act as a potential buyer and do nothing that would violate the homeowner’s legitimately held privacy expectations, as defined in the context of the homeowner’s general invitation to members of the public to view the interior of the home for purposes of marketing the home.<\/p>\n

We find support for our conclusion in a long line of cases beginning with Lewis v. United States<\/em><\/a>, supra, 385 U.S. 206. In Lewis<\/em>, a federal narcotics agent, by misrepresenting his identity as a potential buyer of narcotics, was invited into the defendant’s home. The Lewis<\/em> court acknowledged that the invitation to enter would not have been extended had the defendant been told the potential buyer was in fact an undercover officer. The court rejected as a general rule that law enforcement must never constitutionally use ruse or trick during the investigation of criminal offenses. Instead, the court repeated the general rule governing Fourth Amendment challenges: \u201c[T]he particular circumstances of each case govern the admissibility of evidence obtained by stratagem or deception.\u201d (Lewis v. United States<\/em>, supra, at p. 208.)<\/p><\/blockquote>\n

While the facts are close, the officers had reasonable suspicion that defendant’s car was involved in a robbery, and the driver when he was stopped acted guilty to them. United States v. Drake<\/a>, 543 F.3d 1080 (9th Cir. 2008).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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