That's right: FBI agents can't pretend to be ISP repairmen to search homes without a warrant
Vegas hotel raid broke 4th Amendment, says judge
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 as ISP technicians.
If such a ruse was allowed to stand, the US government could search any home in America without a warrant, the court ruled.
The FBI believed Phua and his associates were running an illegal World Cup gambling den out of his villa on the grounds of Caesar's Palace between June and July of 2014. With the hotel's help, the agents cut off the broadband links to the home, then two of them turned up posing as ISP employees to repair the internet connection.
The Feds had yet to obtain a search warrant, but took the opportunity once inside the villa to take photos and gather as much intelligence as they could, and then successfully applied for a search warrant. Crucially, the agents did not tell the judge who signed off the warrant that they had already snuck in as bogus repairmen.
With the warrant in hand, the FBI raided the villa, and arrested and charged Phua with operating an illegal gambling ring. Phua denies any wrongdoing.
The wealthy Malaysian asked Nevada's district court to rule that the search warrant was invalid because the g-men had kept the shenanigans involving the villa's broadband a secret from the courts; in February, Judge Peggy Leen agreed.
Now, in a hearing at the end of last week, district judge Andrew Gordon has ruled that the whole operation violated the US Fourth Amendment, which safeguards against unwarranted search and seizure.
"By creating the need for a third party to enter defendant’s premises and then posing as repairmen to gain entry, the government violated the defendant’s Fourth Amendment rights," Judge Gordon ruled, adding:
Allowing law enforcement to engage in this conduct would eviscerate the warrant requirement. Authorities would need only to disrupt phone, internet, cable, or other “non-essential” service and then pose as technicians to gain warrantless entry to the vast majority of homes, hotel rooms, and similarly protected premises across America. Permitting the government to engage in this conduct is inconsistent with the narrow consent exception to the Fourth Amendment’s warrant requirement.
As a result, all the evidence gathered against Phua has been stricken from the record, which rather derails the prosecution's case. However, the criminal complaint against Phua, 50, continues: according to the FBI, $13m in bets were unlawfully placed before the villa was raided and its computers seized.
Phua's son Darren and five other defendants in the case have pleaded guilty to lesser charges, forfeited large sums of money, and have been banned from traveling to the US for five years. ®