A Lie Too Far

Before the Supreme Court’s decision in Whren, police were constrained to lie about the reason for stopping a car they wanted to search for drugs.  But the Court broke through the floor, allowing police to be honest about their dishonesty.  When it comes to interrogation, the law has long been clear that lying is a very effective tool of law enforcement. The law protects lies.

This shocks many people. Aren’t the police supposed to be paragons of virtue, the embodiment of truth, justice and the American way?  Well, one out of three ain’t bad.  The reality is that it’s a lot easier to get people, in all senses of the word “get,” with a well-formed lie than it is with hard work and conformance to the rule of law.  If we just tweak the rule of law to meet the efficacy of lying, combined with trusting that our police would never take advantage of it, problem solved.

So when the only thing that stood between Robin Harper and arrest was the screen door of her home, it was more than the police could stand. From RTV6 in Indianapolis:

Harper denied police entry to her home, but the court said an officer then lied to Harper by telling her she had to sign a form. Once inside, the officers handcuffed her and forcibly removed her wedding ring, citing jail procedure.

Harper was arrested for domestic abuse of her husband, The cops were used to visiting the Harper home, as they had a rocky relationship.  They came this time at Robin Harper’s call, as a shoving match followed their screaming.  When they caught up with the husband, Christian, they realized that he might have gotten the worst end of the dispute. From the opinion of the Indiana Court of Appeals:

Officers Gillespie and Hartman…observed that he had two small scratches on his head, a swollen left eye, and what appeared to be a small puncture wound in his abdomen. Christian told the officers that Harper had attacked him with scissors and had struck him multiple times with her fist.

Back they went to Robin’s home, where this time she refused to come outside. Instead, she stood behind the screen door to speak with police and expressly refused them entry.  In the absence of a warrant for her arrest, Payton v. New York says that the one thing the cops cannot do is cross the threshold of a person’s home to take them into custody, unless they are allowed inside or there are exigent circumstances (such as hot pursuit).

Officer Gillespie explained his swift move:

She was reluctant to come to the door, but she did come to the door, spoke to us through the door and then opened it so that the screen door was still there and closed. We asked if she could step outside to talk to us. She said that she did not want to go outside due to the fact that it was cold. At that point in time we asked if we could step inside to speak with her and she said that we didn’t need to come inside. . . . [I]n order to get a hold of Miss Harper, I then asked her if she would sign a document for a protective order, to start some kind of protective order  paperwork. At which time she opened the screen door and we stepped in to affect [sic] an arrest.

At the trial level, the judge sloughed off the Payton violation.  After all, it’s not like she didn’t deserve to be arrested anyway. But the appellate court opinion questions the simple equation.

In emergencies, law enforcement officers are often called upon to make split second judgments as they do the dangerous work of protecting us all, judgments that we in a civil society endeavor to support as much as possible. But when, without any exigent circumstances, and after being denied consensual entry, a law enforcement officer lies to gain entry into someone’s home, is that officer “. . . lawfully engaged in the execution of the officer’s duties . . .” so as to justify the arrest of the owner or renter of the home and to charge her with the crime of resisting law enforcement?

What’s curious is that Harper was not prosecuted for the domestic assault on her husband, the one where the scissors punctured his abdomen, but for resisting the officers’ seizure after she figured out that they really weren’t there to get her to sign a form.  The decision held that the cops, by having lied their way into her home, were not “lawfully engaged” in the execution of their duties.

While the court comes as near as a court can in its conclusion, nowhere does it address the core wrong here, that the police violated Robin Harper’s constitutional rights to gaining entry into her home by a lie.

In the case before us, Harper never abandoned the privacy interest in her home. She simply opened her front, prime door to answer Officer Gillespie’s knock, and after she did so, she stood behind the closed screen door to speak with him. Harper never crossed the threshold of her residence onto her stoop or porch. In addition, Harper expressly denied the officers entry to her home, and rather than obtain a standard warrant for her arrest, Officer Gillespie chose to use fraud to enter the residence to arrest her.

While it may be accurate that Harper’s prosecution for resisting arrest by an officer who was unlawfully in a position to arrest her mandates vacating her conviction, what if she hadn’t resisted, but been arrested for the battery of her husband?  What if they lied their way in and decided not to arrest her at all?  Would that have reduced he lie, the entry into her home, to a trivial constitutional detail?

While the outcome was correct, the court’s rationale was unsatisfying.  By lying their way into Harper’s home, the police flagrantly violated the Constitution. She did not consent to their entry, but was tricked into allowing them to enter. When entry is gained by a ruse, it is not knowing, intelligent and voluntary, as required for consent, but the verbal equivalent of smashing down her door and forcing their way in.  Regardless of what she was arrested for, resisting or battery, they violated her constitutional rights when they crossed the threshold.

This was a lie too far.  Much as the lies of the law fly in the face of our naïve expectations of legitimacy of law enforcement, and run contrary to the ideal that the police are supposed to be honest, the good guys, when dealing with the public, at least call this lie out for what it is, and then there would be no need to strain the law to explain why lies to circumvent the Constitution are impermissible.

H/T Radley Balko

14 thoughts on “A Lie Too Far

  1. pvine

    Her consent to the entry was not rendered involuntary, unknowing or unintelligent by the fact that the cops lied. She voluntarily let them in. Subjectively, although incorrectly, she knew why she was letting them in and used her own intellectual decision-making power in doing so. I don’t see any difference, in terms of these three elements, in this case than in cases where the cops lie to suspects about the evidence against them in order to fool them into confessing.

    What if the cops had lied to get her to step out of her house so that they could effectuate a warrantless arrest by, for example, telling her that her kid had been in an accident and they would drive her to the hospital. She couldn’t suppress her body, right? She couldn’t suppress any confession that followed her arrest and waiver of Miranda, right? She couldn’t suppress any evidence that was found on her person incident to her arrest, right?

    Yes, some (perhaps most) people might be offended that cops sometimes lie to suspects to accomplish their goals. But as long as those lies do not, by themselves, don’t undermine the suspect’s ability to exercise her free will (in deciding whether to let the cops into her house or confess to a crime), the remedy of suppression shouldn’t be available. Whether or not she should have another remedy for the cop’s wrongdoing is another matter.

    1. SHG Post author

      I agree with your analogy, and completely disagree with your outcome. When a decision is made based upon a lie, it is not knowing, intelligent and voluntary, any more than someone defrauded agreed to an unknown lousy deal.

      The solution isn’t to let the cops lie their way in (or lie someone out), but to hold that when a cop lies to obtain consent, a confession or otherwise, that it’s involuntary. The objective is to honor the Constitution, not find the most creative way to circumvent it.

  2. John Barleycorn

    I might as well take out an advance on the 401K and build a garage door to replace my front door and consider my entire world a traveling experience.

  3. pvine

    Not to be argumentative. But what the hell. So what provision(s) of the Constitution is(are) “circumvented” when the cops lie (to obtain a confession or a suspect’s consent)?

    Not the 5th, that requires compulsion. You can’t be compelled (to confess or let the cops in to your home) if you believe that what they are telling you is the truth.

    The 4th? Are you saying that a person has been unreasonably seized in every single situation if that seizure is accomplished by a lie (to get them to let the cops in, or to get them to step outside, in order to arrest/seize them)? Even if that is true, why should the remedy be suppression of any fruits of that arrest?

    Your lies = violations of the Constitution theory would eliminate the cops ability to use UC operations, even if those programs were intended on preventing another 9/11. (I know, stop with the 9/11 boogeyman scenario.)

    Face it, in many cases cops are fighting a dirty game against dirty (although presumed innocent) people. In order to keep pace with the hogs tactics sometimes you have to get in the mud in order to protect the other animals on the planet.

    1. SHG Post author

      Well, at least you recognize the 9/11 bogeyman scenario, even if you then launch into the roll-in-the-mud scenario. It’s hard to imagine how the first two hundred years of this nation happened without undercover operations. And yet, your analogy this time isn’t as apt as the first.

      The police aren’t supposed to be criminals. What distinguishes the two is the criminals are engaged in illegal conduct. The cops are not. If they are, then there is no distinction, and preferring one team to another doesn’t make your favorite substantively better.

      One cannot waive a constitutional right unless it is knowing, intelligent and voluntary. On this, we agree. Yet, a waiver obtained by lies is still a waiver, in your view, as the magic words or deeds happened, even if it was because of a lie. The provision being waived is the provision violated, where waiver is based on a lie because one cannot make a knowing, intelligent and voluntary decision if the decision is based on a lie.

      I understand that you don’t agree with me, but if you don’t see a distinction between a decision based on accurate information and a decision based on a deliberate falsehood, then I don’t imagine any further explaining is going to help.

    2. Charlesmorrison

      Just curious, would your position change if the hypo was more along the lines of an officer saying: “I have a warrant to search,” holding up a piece of paper that isn’t a warrant at all. Then saying “now, I can come in and ransack the place and get what I need and scare your children, tear open your furniture, etc. Or, you can consent to a search and we can do this the easier way”? The lady then signs a consent to search.

      It’s still lies. The consent is still based upon a falsehood, but not compelled in the core constitutional sense (no prophylactic protection here). She still agreed right? She still had a choice to consent or not, right? She chose the easy way, even if it was, in fact, the only way?

      If courts have stopped that, would you have a problem with it? If not, then why? I seriously curious where the line can be drawn, in your eyes.

      1. pvine

        “[W]here the line can be drawn…”

        Once the cops conduct is of such a character that it undermines a reasonable person’s ability to make a choice of their own free will, the resulting consent is involuntary and, therefore, of no legal import.

        In your hypo, the cops don’t simply use falsehoods, but used threats to destroy property and psychologically harm her children. Thus, her consent is not a product of her own free will.

        In each case, the (free will) line will be drawn based upon the totality-of-the-circumstances. There is no categorical, bright-line rule.

        1. SHG Post author

          So if he had simply lied about having a warrant to obtain consent, but hadn’t included the color commentary, you would consider that voluntary, intelligent and knowing? Interesting. You have a very curious view of free will.

          1. pvine

            No. You missed my point.

            Flashing a piece of paper while falsely claiming to have a warrant is essentially the same as saying, “I have a warrant. Let me in!” It is a demand to enter under (false) color of authority which sufficiently undermines the homeowner’s free will so at to constitute compulsion. It is equivalent to a threat, “If you don’t let me in, I have the legal right to kick the door in.”

            A long way from a mere falsehood that is not accompanied by any express or implied threat or demand.

            1. SHG Post author

              Thanks for explaining. So lying about possessing a warrant is unacceptable due to the inherent threat a warrant carries, but lying otherwise to obtain consent/waiver based on deliberate falsehoods are knowing, intelligent and voluntary.

              I see the distinction between a lie about a warrant and a lie otherwise, though I’m not at all clear that it’s “a long way from a mere falsehood.” Nor am I inclined to put the words “mere” and “falsehood” together. Nor do I see how a decision based upon a lie is knowing, intelligent and voluntary, plus when the lie is by a cop, there is always the inherent implied threat and demand, plus there is submission to the shield linked to the lies, threats, demands.

              So while I see your distinction, I still can’t reach your conclusion. It’s distinction of no consequences, and adding the word “mere” doesn’t change that.

  4. Wheeze The People™

    All I can think about after reading this is:

    [Scene: Interior. A New York apartment. There is a knock at the door.]
    Woman: [speaking through closed door] Yes?
    Voice: (mumbling) Mrs. Arlsburgerhhh?
    Woman: Who?
    Voice: (mumbling) Mrs. Johannesburrrr?
    Woman: Who is it?
    Voice: [pause] Flowers.
    Woman: Flowers for whom?
    Voice: [long pause] Plumber, ma’am.
    Woman: I don’t need a plumber. You’re that clever shark, aren’t you?
    Voice: [pause] Candygram.
    Woman: Candygram, my foot! You get out of here before I call the police! You’re the shark, and you know it!
    Voice: Wait. I-I’m only a dolphin, ma’am.
    Woman: A dolphin? Well… Okay. [opens door]
    [Huge latex and foam-rubber shark head lunges through open door, chomps down on woman’s head, and drags her out of the apartment, as Jaws attack music plays.]

  5. Larry Jelley

    Operation Iron Snare is how the cops in Alabama lie to defendants in order to effect an arrest. This is not a 4th amendment issue, but is another example of how Police are allowed to deceive citizens in order to make their jobs easier. If you watch the video, it seems like the cops are getting quite a bit of entertainment value out of this exercise. http://sports.yahoo.com/ncaa/football/blog/dr_saturday/post/-Operation-Iron-Snare-lures-wanted-deadbeats-w?urn=ncaaf-wp4586

    I know you don’t allow links but I have a tendency to fracture the rules from time to time.

    [Ed. Note: It’s Friday. Let’s go crazy.]

  6. AlphaCentauri

    I was thinking, why have cops in uniform at all? Dress them up as meter-readers if lying their way in is acceptable. It’s reminiscent of Dracula trying to get an invite into van Helsing’s house.

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