back to article That's right: FBI agents can't pretend to be ISP repairmen to search homes without a warrant

Evidence gathered by FBI agents who posed as broadband repairmen to enter a suspect's villa without a warrant has been thrown out by a US judge. The District Court of Nevada has decided [PDF] that the g-men violated the Fourth Amendment rights of poker ace Wei Seng Phua when they searched his Las Vegas bolthole while disguised …

  1. Keef
    Black Helicopters

    Data vs Physical?

    About time we had similar rights for our online activities as we do for our physical activities.

    Only kidding, we're already fucked in every arena, but this does seem to be a rare case of common sense being applied within the justice system.

    1. Big John Silver badge

      Re: Data vs Physical?

      Only one problem, no one gets punished. So there's no disincentive to try it again and again. Until the criminals who pull this crap get jail time it will continue to be used, on the off-chance that it might not be discovered.

      That's the real problem with the US, no culpability for the faceless bureaucrats who break laws. Even if they lose in court, all that happens is a fine, which gets passed along to the taxpayer.

      1. moiety

        Re: Data vs Physical?

        Accountability. I am responsible for what I do and will pay a penalty if I fuck up. That should apply to everyone.

      2. Anonymous Coward
        Anonymous Coward

        Re: Data vs Physical?

        "...no disincentive to try it again and again."

        But in this specific case, they turned over a lot of cash and cannot travel to the country for 8 years. That's not exactly a WIN for the defense. Of course regardless of the verdict, then you have the more serious situation of having to answer to the not so up-and-up people who placed bets with you, bets you may not make good on. Truthfully, in a way, it's a win for the government because they now have some cash in pocket that NOBODY is going to come asking for (well, at least not from the government :-).

        To the defendant: Running an illegal gambling ring in Las Vegas of all places is not so...wise guy.

        1. Cliff

          Re: Data vs Physical?

          @MyBackDoor, I think from the context that the criminals referred to were those performing an illegal search and bring opaque with the courts, not the alleged gambling ring members themselves.

  2. Ole Juul Silver badge

    FBR

    I assume that this means that repairmen can also no longer pose as FBI agents.

    1. billse10

      Re: FBR

      you can get up to three years for that, i believe.

      Not for being a repairman, the other thing.

      Not even Judge Preska would claim people should be penalised / sanctioned in court for something that is perfectly legal in the jurisdiction they did it .. ?

      1. Ole Juul Silver badge

        Re: FBR

        I was thinking more along the line that someone could pose as an FBI agent in order to gain access, and then while there fix their telephone without them knowing it.

        1. Sandtitz Silver badge
          Joke

          Re: FBR

          "fix their telephone without them knowing it."

          Just don't even try to tell Central Services that the machines fixed themselves. And if you do, remember to ask for 27 B/6 if they want to have a look!

  3. elDog Silver badge

    And the cost for defending against this transgression?

    I imagine that most of us would be bankrupt if we contested the actions of the the state police.

    Most of us wouldn't even try, and when the charges were dismissed (we hope) by some law-abiding court, we'd wipe the sweat from our brow and try to get our lives back together.

    The state relies on the fact that most of its citizens don't have the time or knowledge or will to fight. Worthless actions may be dropped by the justice system but many will go forward with punishment, even if the crime didn't happen.

    1. I. Aproveofitspendingonspecificprojects

      Most of us wouldn't even try

      So far nobody retaliates against the government because it is a pointless occupation. And anyway most of us are not totally psychotic. But there are some people, notably Americans, who are not only psychotic but trigger happy too.

      Once it becomes public knowledge how the FBI, for example, behaves with, for example, Mafia families and that they quite often screw up like this as though on purpose, expectations and behaviour patterns will change. And that will be interesting.

  4. Mark 85 Silver badge

    One might hope that this will send a signal and perhaps even the warrantless online searches will be ruled as unconstitutional. But I doubt it. Those are hidden by weasel words such as "metadata"... "finding the terrorists", etc. They're not physical. Yet, there's a gray area. We'd all like to see cyber-criminals stopped but there's that line that's been stomped on repeatedly.

  5. tom dial Silver badge

    Whatever were they thinking?

    This seems so obvious that it is too bad the judge probably cannot issue punishment for wasting the court's time. If they had a reasonable suspicion, and decent fact to back it up, they probably could have gotten a judge to issue a warrant to tap Phua's internet service and maybe obtain enough information to get a further warrant for a physical search. Even if the connection were encrypted, agent use of the betting service (if there really was one), together with metadata analysis, probably could have given them enough.

    On the other hand, maybe we should take a very skeptical look at the laws that make gambling online illegal.

    This has the appearance of an amateur operation and should reflect badly in the performance appraisals of the agents and on up the approval chain. We may faintly hope.

  6. dan1980

    For all its problems, at least this ruling is even possible in the USA. In Australia, by contrast, this would either be ruled as perfectly admissible or, if not, new laws would be put in place by the Federal and various State governments that makes it so.

    And that's what the Constitution brings the USA and its people - a law higher than the law enforcement agencies and the governments. At least in theory.

    The only problem is that that law does not specify any penalties for transgression, hence there is really very little disincentive for the government and its agencies to respect it. They are free to keep pushing the limits and outright breaking them.

    Running an illegal gambling ring is, well, illegal and it is right for the FBI to try to apprehend the people involved. That said, I think that not only should the evidence in question be thrown out - the whole case should be thrown out.

    I realise that this is giving criminal a free-pass of sorts but if a law enforcement agency has been found to have breached the the highest law in the land then whole investigation must be considered suspect.

    Law enforcement agencies are there to enforce the laws enacted by the various governments - state and federal. In order to do so, they are given limited exemptions from some of those laws. For example, police officers are given the powers to kill their fellow human beings in circumstances outside of the exceptions provided to the common person. They are also given the right to break speed limits and can buy and sell illegal drugs as part of undercover or 'sting' operations. They are allowed to 'open carry' their firearms even in states where laws prohibit civilians from doing so.

    BUT, they do not get to break those laws enshrined in the constitution because those laws are above and beyond the laws enacted by the states or by Congress as they are explicitly there to limit what those bodies can do.

    As a cop, you get to speed to catch someone speeding and you get to shoot someone who has shot someone. But neither speeding nor shooting people are covered by the constitution. Warrantless searches are covered however and so you don't - no matter how much money you think someone is making in illegal gambling - get to violate the rights enshrined there.

    If you are willing to break the highest law in the land then you are simply not fit to uphold the 'lesser' laws. If having being caught abusing children disqualifies you from being a teacher (and it should) then being caught breaking the laws of the Constitution should disqualify you from being a law enforcement agent.

    Same logic applies - you've shown that you don't respect the one thing you are asking to be trusted to do.

    1. SolidSquid

      Technically as a police officer you *don't* get the right to shoot someone outside of cases where other people can, it's still supposed to be limited to threat to the life of yourself or another. It's just that cops are generally considered to have better judgement with regards to this due to having received training

    2. BigFire

      Time was not on FBI's side

      The reason why they have to do this kind of ruse is that FBI was running out of time. The betting ring was for the duration of World Cup. I figure the SAIC who authorized this thought by the time they got a judge to sign off on the warrant, the gamblers would be long gone. Better to ask forgiveness than permission. Well in this case, forgiveness is not forthcoming.

      1. dan1980

        Re: Time was not on FBI's side

        @BigFire

        While not wanting to jump on what might be simply a poor choice of words, I would question the idea that the FBI "have to do" this.

        Why do they have to?

        The constitution is more important than a law against illegal gambling. It represent the highest law(s) in the land and even trying to prevent people from being killed is not sufficient justification to break it.

        But this is the problem and it is an example of how the US got to the place it is with blanket spying on everyone - the agencies view whatever goals they are trying to achieve as more important that anything else, including the constitution.

        I am sure the vast majority are very well meaning people, but if they believe that constitutional protections can be ignored when they think it's 'necessary', then they are wrong and need to have their understandings re-aligned.

        Those prote@BigFire

        While not wanting to jump on what might be simply a poor choice of words, I would question the idea that the FBI "have to do" this.

        Why do they have to?

        The constitution is more important than a law against illegal gambling. It represent the highest law(s) in the land and even trying to prevent people from being killed is not sufficient justification to break it.

        But this is the problem and it is an example of how the US got to the place it is with blanket spying on everyone - the agencies view whatever goals they are trying to achieve as more important that anything else, including the constitution.

        They also need to understand why those protections exist - they are there to protect the citizens from overzealous law enforcement and government intrusion. So they need to eat a couple of slices of humble pie and realise that the constitutional laws are there to protect not only from deliberate misconduct but also from 'normal' police who might get a bit wrapped up in their jobs.

        In other words: you can't trust that those enforcing the laws will actually do the right thing by the people. Most will, most of the time but because some won't, some of the time, you need to have hard protections because the rights of the people are paramount.

        And that is what all our governments appear to have forgotten.

        1. BigFire

          Re: Time was not on FBI's side

          I'm not defending the SAIC's action. It was a stupid risk, and this will come up on his next review. It was also kind of stupid for the prosecutor to use this kind of tainted evidence as they really should know better.

          1. dan1980

            Re: Time was not on FBI's side

            First - sorry for the jumbled post - hopefully you were able to make sense of it. Bloody copy and paste!

            I understand what you are saying but the problem is that it is indeed viewed as a 'risk' - something that they weigh-up to decide whether it is worth it. Law enforcement agencies simply don't get to make that decision; the constitution is there because their position is inherently open to abuse and so it restricts what they can and can't do - regardless of whether they think it's a good idea or they really 'need' to.

            This is a complete and utter failure of the system and anyone in a position to authorise this behaviour should know that they shouldn't do this. If they don't know that then they are not fit to hold that position.

            Likewise the prosecutor. If he or she had any knowledge of the provenance of the evidence and proceeded anyway then that person should be fired. In fact, I would argued that anyone involved in this should be prevented from holding any position of inside law enforcement ever again. When it comes to this, it has to be 'one-strike' because if you are willing to breach the right of the public for reasons expedience or effectiveness then can't be trusted to have their interests at heart.

            If you have shown that you don't respect the people you are supposed to be protecting or the legal system you are supposed to be upholding then for the protection of the public and the integrity of the legal system, you need to go. No second chances.

      2. Mark 85 Silver badge

        Re: Time was not on FBI's side

        Hmm...."running out of time"? There's usually a judge on call in a given area for search warrants just for time sensitive situations.

    3. Fatman Silver badge

      RE: Breaking the law...

      The only problem is that that law does not specify any penalties for transgression, hence there is really very little disincentive for the government and its agencies to respect it. They are free to keep pushing the limits and outright breaking them.

      ...

      BUT, they do not get to break those laws enshrined in the constitution because those laws are above and beyond the laws enacted by the states or by Congress as they are explicitly there to limit what those bodies can do.

      ...

      If having being caught abusing children disqualifies you from being a teacher (and it should) then being caught breaking the laws of the Constitution should disqualify you from being a law enforcement agent.

      Time for Feds to spend some quality time BEHIND BARS!!!!

  7. Gene Cash Silver badge
    Unhappy

    It's sad

    ... when I'm rooting more for the crooked gambler than the government, because he's less of an asshole.

  8. JimmyPage Silver badge
    Unhappy

    They should move to the UK

    evidence rarely - if ever - gets thrown out, no matter how dishonestly it was obtained.

    1. Anonymous Coward
      Anonymous Coward

      Re: They should move to the UK

      Who? The FBI? Your comment makes no sense to me.

    2. Anonymous Coward
      Anonymous Coward

      Re: They should move to the UK

      Well no. There's no law in the UK to exclude evidence which was illegally obtained, as there is in the US. Different country, different law. If you, as a UK citizen, would like one, then you could raise it with your MP. If he/she were embarrassed by the expenses scandal, they may even be willing to put one forward.

  9. Anonymous Coward
    Anonymous Coward

    common sense prevails

    Fuck Comey, Fuck the FBI, Fuck the Police

    #421BLAZEIT

  10. Anonymous Coward
    Anonymous Coward

    Meamwhile in the UK

    It is perfectly legal for UK uncover cops to live with and have kid on unbeknown female victims whilst providing intel on perks. Perks meaning anyone that complains a bit too much.

    1. tom dial Silver badge

      Re: Meamwhile in the UK

      I saw that on Netflix in an English police procedural. Was there a real case? (Serious question, not a snarky reply.)

      1. ScottAS2

        Re: Meamwhile in the UK

        Yes. Several, in fact.

        1. tom dial Silver badge

          Re: Meamwhile in the UK

          Thanks. The third one listed, "Clare", should get royalties and a credit if she wants, from "New Tricks".

  11. Christoph Silver badge

    Unwarranted search and seizure

    Search maybe. The provision on seizure is dead. The US police can rob anyone of money and valuables at whim, and the victim must then jump through myriad bureaucratic hoops to try to prove that it wasn't drug money.

  12. tom dial Silver badge

    Yes. Civil forfeiture is an abomination. I do not understand how it has not been thrown out as incompatible with "nor be deprived of life, liberty, or property, without due process of law" in the fifth amendment.

    Apparently the police charge the money with having participated in a crime. The money of course, has no civil rights and is forfeited to the government, which forwards part of it (I ghink 20%) to the Department of Justice as something like a tax.

    Punishment, perhaps, for those who, beyond all reason, don't trust the banking system, or who, in some cases, actually have engaged in the criminal activity that produced the money. The trouble even with the latter is that the authorities don't have to do the sometimes hard work of actually collecting evidence and proving a case to a jury.

    1. I. Aproveofitspendingonspecificprojects

      Punishment, perhaps, for those who, beyond all reason

      But they have a piece of paper/parchment... whatever...

      ...and lot of lawyers.

  13. Terry Cloth
    Headmaster

    ``between June and July of 2014''

    It didn't happen, then? After all, the time between June & July is precisely the time between 2014-06-30T2400 and 2014-07-01T0000. (Reading the dictionary for fun and clarity can be a profitable pursuit.)

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