Police Violated Resident’s Fourth Amendment Rights by Lying About 911 Calls to Gain Entry to Homes, Court Rules

A judge ruled last summer that police violated a woman’s Fourth Amendment rights by using false information to obtain consent to search her home. Police are allowed to make misleading or even false statements during investigations, although the question of how far they may go has been the subject of much courtroom dispute. Most court decisions involve police interrogations in which an officer is trying to get a suspect to confess. As a general rule, police are permitted to mislead a suspect regarding specific facts about the investigation, but not to fabricate material evidence, like documents or photographs, nor to misrepresent the law.

According to local news, several police officers in Durham, North Carolina obtained consent to enter people’s homes by falsely stating that they had received 911 calls regarding those properties. An officer allegedly found a small amount of marijuana and drug paraphernalia inside one woman’s house after she allowed him to enter. He admitted to the ruse in court, but he testified that it was permitted by department policy. The police chief denied this and later formally banned the practice. The court suppressed the evidence, ruling that consent to the search was obtained under false pretenses.

The U.S. Supreme Court’s landmark decision on false statements by police is Frazier v. Cupp, 394 U.S. 731 (1969). The defendant confessed after the interrogating officer told him, falsely, that his suspected accomplice had spoken to police and implicated him. The court held that the false statements were relevant to the question of the confession’s admissibility, but that the “totality of the circumstances” did not indicate a violation of the defendant’s rights. Id. at 739. Later cases explored what circumstances might render a confession inadmissible.

In State v. Kelekolio, 849 P.2d 58, 73 (Haw. 1993), the Supreme Court of Hawaii drew a distinction between “intrinsic” and “extrinsic” falsehoods. Intrinsic falsehoods involve the facts of the alleged offense and investigation, and they fit into Frazier‘s “totality of the circumstances” analysis. Extrinsic falsehoods are highly likely to coerce a suspect into a false confession and are presumed to be unlawful.

The court gave examples of both types of falsehood from court decisions around the country. Intrinsic falsehoods might include false statements about physical evidence or fingerprints found in a suspect’s car or residence, or identification of the suspect by a witness. Id. Extrinsic falsehoods might include legal misrepresentations, such as claiming that a confession would be inadmissible at trial or would automatically result in lesser penalties, or promises of medical or psychiatric treatment in exchange for a confession. Id. at 73-74.

Numerous courts have held that outright fabrication of evidence, while technically an intrinsic falsehood, violates a defendant’s rights. An early ruling on this issue, State v. Cayward, 552 So.2d 971 (Fla. App., 2nd Dist. 1989), involved fake laboratory reports presented to the suspect to get him to confess. Texas courts have reached similar conclusions, including a case in which police fabricated a report stating that the defendant’s fingerprints were found on a murder weapon. Wilson v. State, 311 S.W.3d 452 (Tex. Crim. App. 2010), reh’g denied. These statements might not have been unlawful under Frazier and Kelekolio if the officers had only spoken them to the defendants, but the additional work of creating false material evidence went too far.

Criminal defense lawyer Michael J. Brown has spent more than 20 years fighting for the rights of west Texas defendants in state and federal criminal cases. To schedule a confidential consultation to see how we can assist you, contact us today online or at (432) 687-5157.

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Courts Rule on Issues of Data Privacy, with Important Implications for Electronic Monitoring and Searches, Texas Criminal Lawyer Blog, October 30, 2014
Federal “Automobile Exception,” According to Some Courts, Allows Warrantless Searches of Cars Without Exigent Circumstances, Texas Criminal Lawyer Blog, July 29, 2014

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