Laurent Sacharoff, ‘Trespass and Deception’

Police routinely use deception to get into people’s homes without warrant or probable cause. They may pose as UPS delivery persons or homebuyers, or they may say they are looking for a kidnapping victim or a pedophile, when really they are looking for drugs or guns. Recent years have brought hundreds of reported decisions concerning such police ruses. When the police lie about their identity or their purpose to enter a home, as when they pose as a homebuyer, the courts surprisingly, but routinely, approve these deceptions under the Fourth Amendment. Such intrusions, the courts reason, do not violate a person’s reasonable expectation of privacy and therefore do not even trigger Fourth Amendment protection. But the Supreme Court has announced a new Fourth Amendment test based on the civil law of trespass, and this new test promises to provide more Fourth Amendment protection against police deception. Now, under United States v Jones and Florida v Jardines, any time the police trespass to gain information, they trigger Fourth Amendment protections. Although Jones and Jardines did not involve police deception, this Article applies, for the first time, the police trespass rule stated in these cases to police deception cases. It makes the claim that the new trespass test should change the outcomes in the leading police deception cases. After all, these deceptive intrusions would otherwise count as trespasses absent consent, and under ordinary trespass principles deception vitiates consent. Without consent, the intrusion counts as a civil trespass and triggers Fourth Amendment protection.

Laurent Sacharoff, ‘Trespass and Deception’, 2015 Brigham Young University Law Review 359 (2015).

First posted 2016-01-12 12:54:21

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