Law Enforcement’s Use of a Ruse and the Fourth Amendment

Lawful vs. Unlawful Ruses

A law enforcement officer may not constitutionally use a ruse that involves him misrepresenting his or her authority.  A federal officer claiming to be a state law enforcement officer, and luring a suspect back to the scene of the execution of a search warrant under false pretenses, violates the public trust and is a Fourth Amendment violation.

Investigating the Internet distribution of child pornography, the FBI looked into something called “BitTorrent,” described as a file sharing network that is publicly available and which uses peer-to-peer file-sharing, allowing a computer to share and download files from other computers.  This led to an Internet protocol (“IP”) address at an account registered to defendant Stefan Ramirez’s at his home address in Fresno.  In checking defendant’s IP address, the FBI conducted 23 separate download sessions in November and December 2016, involving over 4,000 still images and 20 videos of suspected child pornography.  Conducting a physical surveillance on defendant’s home in Fresno, it was noted that a white Chrysler sedan, registered to defendant, was often parked in the driveway.  Knowing from experience that computers and other electronic storage devices were commonly stored in one’s vehicle, and that someone at that residence—possibly defendant—was “involved in (the) possession, receipt, and/or distribution of child pornography,” Special Agent Joshua Ratzlaff obtained a search warrant for the residence along with any “[v]ehicles located at or near the premises that fall under the dominion and control of (defendant) or any other occupant of the premises.”  Defendant himself was not specifically named as a person to be searched because although the identified Internet account was in defendant’s name, several people were known to live there and it was not yet known for sure who at the residence might be receiving the child pornography.  The plan was to speak with defendant when the search warrant was executed in order to verify that he was in fact the person trafficking in child pornography.  However, on the day and at the time the warrant was executed (sometime during the spring of 2017), defendant had already left for work.  In fact no one was home and the Chrysler was gone when the agents arrived.  So instead of beginning the search as authorized by the warrant, Agent Ratzlaff decided to concoct a ruse to lure defendant home by calling him at his work, claiming to be a Fresno P.D. police officer investigating a burglary at the residence and telling him he needed to return home to confirm what was taken.  However, on a day when nothing seemed to be going according to plan, defendant did not answer his phone when called.  So Agent Ratzlaff called another person believed to also live there, only to find out that that person had moved out some three weeks earlier.  At Agent Ratzlaff’s request, that person called defendant, leaving him a message.  That person then called defendant’s mother, who owned the house.  Defendant’s mother came to the residence and confronted the FBI agents, unlocking the door and letting them inside. At the agents’ request, she then called defendant and—continuing the ruse that the police were there and that the house had been burglarized—asked him to come home.  Defendant promptly responded, returning the missed call from the FBI while on the way.  Agent Ratzlaff reiterated the story that he was a police officer, that there had been a burglary at his home, but they should wait until he arrived home to discuss the matter further.  Buying the ruse hook, line and sinker, defendant arrived home in his Chrysler to find armed agents wearing “Police” jackets and full body armor with a staged Fresno police car parked in front of the house.  It wasn’t until defendant parked his car and approached the agents that Agent Ratzlaff finally revealed his true identity and the real purpose of their investigation, explaining that he had used the ruse to induce him to come home and to speak to him about the FBI’s child pornography investigation.  Defendant was then patted down for weapons and his phone, wallet, and keys were seized.  He was taken into a bedroom where, after being told he was not under arrest but never told he could leave, he was subjected to a 45-minute interview during which he cop’d to knowingly possessing child pornography on his computer.  His possessions were not returned until the interview was over.  While being interviewed, other agents searched defendant’s Chrysler and recovered two laptops and two hard drives, presumably containing child pornography.  Charged in federal court with child pornography-related offenses, defendant’s motion to suppress was denied.  Pleading guilty to one count of the distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2) and sentenced to 12½ years in prison and five years of supervised release, defendant appealed.

The Ninth Circuit Court of Appeal, in a split (2-to-1) decision, reversed, ruling that defendant’s motion to suppress should have been granted.  The issue on appeal—as it was in the trial court—was whether the ruse used in this case, under these unique circumstances, violated the Fourth Amendment.  The trial court ruled that it did not; the majority of the Appellate Court ruled that it did.  The existence in this case of a valid search warrant, authorizing the search of defendant’s residence and any vehicle at or near the scene, is undisputed.  It is also undisputed that the eventual execution of the warrant, after defendant—responding to the ruse—returned home, was in compliance with the terms of the warrant.  Recognizing that “(a)n otherwise lawful seizure can violate the Fourth Amendment if it is executed in an unreasonable manner,” the issue here was whether the Agent Ratzlaff’s use of a ruse under these circumstances was unreasonable.  While the use of “deceit” (i.e., a “ruse”) is lawful under the right circumstances, “not every ruse is reasonable under the Fourth Amendment.”  In determining whether the use of a ruse is lawful, a court “must assess the reasonableness of law enforcement’s use of deception by ‘balanc[ing] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’”  In attempting to find this illusive line between a lawful and an unlawful ruse, some examples are helpful.  It is commonly held that acting undercover, hiding that fact that the undercover agent is a law enforcement officer, is generally legal.  (Hoffa v. United States (1966) 385 U.S. 293.)  But should a law enforcement officer identify himself as such, and then betray the target’s trust by claiming to have some legal authority that the officer does not in fact have, such a ruse is not lawful (e.g., claiming to have a search warrant when you do not:  Bumper v. North Carolina (1968) 391 U.S. 543, 548-549.)  As noted by the Court:  “When a government agent presents himself to a private individual, and seeks that individual’s cooperation based on his status as a government agent, the individual should be able to rely on the agent’s representations.”  “The balance of interests shifts significantly (in the defendant’s favor) when the government’s chosen ruse invokes the public’s trust in law enforcement because of the concern that ‘people “should be able to rely on [the] representations” of government officials.’”  (United States v. Alverez-Tejeda (9th Cir. 2007) 491 F.3rd 1013, 1017.)  Here, Agent Ratzlaff had a search warrant that included the authority to search any vehicles at or near the targeted residence.  This would have included defendant’s Chrysler had it been there at the time.  Agent Ratzlaff also hoped to talk with defendant and obtain admissions to his involvement in the alleged crimes (as he eventually did).  The U.S. Supreme Court has established a rule that a law enforcement officer, upon contacting a suspect at the scene of an executed search warrant, has the authority to detain that suspect (and at least attempt to question him) during the execution of the warrant (see Michigan v. Summers (1981) 452 U.S. 692; and Bailey v. United States (2013) 568 U.S. 186.); referred to here as the “Summers Rule.”  The Court ruled that defendant was in fact detained at the point when he was patted down for weapons and then taken into a bedroom for questioning.  But in this case, with neither defendant nor his car before use of the ruse being at the scene where the search warrant was to be executed, both were off limits to detention or search, leaving Agent Ratzlaff with a bit of a dilemma.  The Court here found that Agent Ratzlaff’s misrepresentations as to his true identity and why defendant was needed back at his home, both made while pretending to be a local police officer and done for the admitted purpose of bringing the Chrysler back to where it could be searched under the authority of the search warrant and to make the “Summers Rule” applicable to the situation (allowing for defendant’s detention), converted Agent Ratzlaff’s misrepresentations into an unlawful ruse.  Employing these misrepresentations violated the Fourth Amendment.  The Court further found that not only is the evidence recovered from defendant’s vehicle subject to suppression, but also his incriminatory statements as well, they being the product of his detention which itself would not have occurred but for the use of the unlawful ruse. 

I started reading this case with the preconception (aka; “gut feeling”) that overruling defendant’s conviction was simply wrong; i.e., that the simple ruse of tricking the defendant into returning home earlier than he otherwise might have planned is not that big a deal; certainly not one of constitutional dimension.  And while I’ve never been comfortable with cops using ruses (believing that to one degree or another, they all violate the public’s expectation that cops should be honest in all their official acts), they are generally held to be legal, at least so long as it doesn’t result in some false or misleading evidence or perhaps bypass the need for a valid warrant. But aside from that, I still have to question the Court’s decision here in that Agent Ratzlaff never misrepresented his authority as a federal agent; an overt action the Court so heavily condemns even though not an issue in this case.  All he did was claim to be a different type of law enforcement officer.  But on the plus side is the fact that this case—right or wrong—makes for a simple, easy to follow rule:  As a law enforcement officer, you cannot make misrepresentations that violate the trust we like to think people have (or should have) in law enforcement, and which as a result subjects someone to a search, detention, or arrest from which that person would have otherwise been constitutionally protected.  In this case, defendant would not have been subject to a Summers-authorized detention, nor his car subject to search, unless and until they (he and his Chrysler) were present at his house.  Looking to the dissenting opinion for some validation of my concerns with this case, I found it to be really more of an emotional appeal, noting that “we are talking in this case about the attempted rape of a two- or three-year-old child. We are talking about tying up a nine-year-old and having a dog do things to her. We are talking about things that are just, beyond description, horrid.”  While you cannot disagree with the disgusting and disturbing nature of child pornography and the industry that produces it, emotional responses don’t address the legalities of the applicable search and seizure law in such cases.  The dissent did express a problem in finding a ruse to be illegal where the FBI did no more than execute a search and a detention that was expressly contemplated for by the search warrant and the concurrent “Summers Rule,” the ruse itself merely speeding up the process by eliminating the need to wait until defendant returned home under his own volition.  I think that’s my problem with this case as well.  But at least—until contrary authority comes down—we know now where to draw the line.