UT: Covering the peephole during a knock-and-talk is lawful and not a misrepresentation; quoting Donald Rumsfeld

Police covering the peephole during a knock-and-talk is lawful and not a misrepresentation. The occupants voluntarily opened the door not knowing who was out there, and they actually considered it could be the police. State v. Hoffmann, 2013 UT App 290, 2013 Utah App. LEXIS 299 (December 12, 2013):

[*P19] Police commonly act in ways that lead suspects to believe they are not in fact police. This tactic alone does not require suppression of information obtained from suspects. See, e.g., Hoffa v. United States, 385 U.S. 293, 300-02 (1966) (holding “no interest legitimately protected by the Fourth Amendment [was] involved” when the government successfully placed a police informant in Hoffa’s inner circle); United States v. Alejandro, 368 F.3d 130, 131-32, 137-38 (2d Cir. 2004) (holding that officers who posed as utility workers to gain entry committed no constitutional violation); United States v. Allen, 675 F.2d 1373, 1377, 1382 (9th Cir. 1980) (holding that a customs official who posed as a representative of the Bureau of Land Management did not violate the fourth amendment); United States v. Raines, 536 F.2d 796, 798-800 (8th Cir. 1976) (holding that a law enforcement agent who posed as a friend of the defendant’s drug associate “did not interfere with the defendant’s Fourth Amendment rights”). “[T]he particular circumstances of each case govern the admissibility of evidence obtained by stratagem or deception.” Lewis v. United States, 385 U.S. 206, 208 (1966). But “it has long been acknowledged by the decisions of [the United States Supreme Court] that, in the detection of many types of crime, the Government is entitled to use decoys and to conceal the identity of its agents.” Id. at 208-09 (citations omitted).

[*P20] Here, the officers engaged in no deception. They made no misrepresentations. In fact, they made no representations at all. Hoffmann testified that the officers knocked loudly for several minutes, that Rocky went to the door and told Hoffmann that someone was covering the peephole, and that he told Rocky not to open the door. But nothing in the testimony of the apartment occupants indicates that the officers misidentified themselves or that they misrepresented the purpose of their visit.

[*P21] Indeed, the occupants of the apartment were well aware that whoever was knocking insistently on their door was concealing his or her identity. They knew the person on the other side might well be a police officer. They did not know that person’s identity, and they knew that they did not know it—it was a known unknown. See Republic of Iraq v. Beaty, 556 U.S. 848, 860 (2009) (quoting Pieces of Intelligence: The Existential Poetry of Donald H. Rumsfeld 2 (Hart Seely ed., 2003)). The occupants knew they were not just opening the door to a stranger; they were opening the door to someone deliberately trying to hide his or her identity. Despite that knowledge, one of the occupants opened the door.

[*P22] Because the officers made no misrepresentations, their peephole-covering tactic was not only noncoercive, it was more innocuous than the disguises and decoys that government actors have long constitutionally employed. See Lewis, 385 U.S. at 208-09. As the United States Supreme Court noted in Lewis v. United States, a requirement that officers identify themselves would “severely hamper the Government in ferreting out those organized criminal activities that are characterized by covert dealings with victims who either cannot or do not protest.” Id. at 210. Therefore, we hold that the officers’ covering of the peephole did not render the occupants’ consent to open the door involuntary.

[*P23] This conclusion accords with that reached by the United States Court of Appeals for the Eleventh Circuit in a recent peephole-covering knock-and-talk case: …