Commonwealth v. Morrison

¶1concurring:

¶2I agree with the majority that we should reverse the order of the lower court. However, I am unable to join the majority’s opinion, for I am unable to discern from it by what rule the majority would determine the propriety of police deception. In its most obvious interpretation, the opinion seems to say that the only limits on police deception *464are that the deception must not amount to “force or other coercion.” See in particular Majority at 1380, 1381 n.l. This proposition, however, is so plainly contrary to settled law that one must ask whether perhaps the opinion is not intended to mean something else. There is no reason for such ambiguity. Examination of the pertinent cases will disclose the limits that have been imposed on police deception. Admittedly, the exact extent of those limits has not been settled, and cases of police deception may be imagined that do not fall within the decided cases, and in which it would be difficult to say whether the limits had or had not been exceeded. The present case, however, is not such a case.

¶3Perhaps the principal difficulty with the majority’s opinion is its reliance on Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).1Schneckloth, however, is not in point. As the majority notes, Schnecklothinvolved an automobile search conducted by uniformed police officers. The issue before the Supreme Court was whether the passengers’ consent to the automobile search could be deemed voluntary in the absence of a warning by the officers that the passengers had the right to withhold their consent and refuse to permit the automobile to be searched. The issue before us, however, is the propriety of police deception. In Schneckloththere was no police deception; accordingly, the Court had no occasion to address, and did not address, the issue before us. The Court did address *465the issue before us in the two other cases-Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), and Lewis v. United States 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966)-and those cases should be the starting point of our discussion.2

¶4In Lewis, the Supreme Court held that the fourth amendment was not violated when a narcotics agent, by misrepresenting his identity and stating his willingness to purchase narcotics, got himself invited into the defendant’s home, where an unlawful narcotics transaction was then consummated. The Court reasoned that the narcotics involved in the transaction could be introduced in evidence against the defendant because the agent during his visits to the defendant’s home did not “see, hear or take anything that was not contemplated, and in fact intended, by [the defendant] as a necessary part of his illegal business,” 385 U.S. at 210, 87 S.Ct. at 427. In Hoffa, the Court defined the issue as “whether evidence obtained by the Government by means of deceptively placing a secret informer in the quarters and councils of a defendant during one criminal trial so violates the defendant’s Fourth, Fifth and Sixth Amendment rights that suppression of such evidence is required in a subsequent trial of the same defendant on a different charge.” In concluding that suppression was not required, the Court held that the fourth amendment does not protect a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. Accord: United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952).

¶5In both Lewisand Hoffa, the Supreme Court pointed out that in some instances police deception may violate the *466fourth amendment. In particular, the Court contrasted the situations in those cases with the situation in Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921). In Gouled, a business associate of the defendant’s, under the direction of federal officers, pretended to pay a friendly call upon the defendant, and upon gaining admission to the defendant’s office, in the defendant’s absence seized and carried away documents belonging to the defendant. This search and seizure, the Court held, violated the fourth amendment.

¶6It is apparent that the present case falls somewhere between, on the one hand, Lewisand Hoffa, and on the other, Gouled. In contrast to the situation in Lewisand Hoffa, appellee did not attempt to engage Trooper Shaw in an illegal transaction, or to confide to Trooper Shaw his wrongdoing. Appellee’s relationship with the trooper was that of a neighbor displaying his home in order to give tips on home improvement. Thus, appellee has a better argument than did the defendant in Lewisor Hoffa. In contrast to the situation in Gouled, Trooper Shaw did not exceed the scope of appellee’s invitation to observe his home, and did not conduct a surreptitious search and seizure.3 When appellee opened the shutters of his home, the marijuana inside was revealed for the trooper to see. Thus, here the police have a better argument than did the police in Gouled.

¶7This contrast suggests that a helpful way to go about deciding the present case is to consider whether appellee’s situation was different enough from the situation in Lewisand Hoffa to require a different result. In undertaking this consideration, the cases following Lewisand Hoffa may be divided into two groups.

¶8The first group of cases is not particularly helpful, for it comprises cases involving an illegal business transaction between a defendant and an undercover agent, i.e., cases *467substantially identical to Lewisand Hoffa. United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978); United States v. Hutchinson, 488 F.2d 484 (8th Cir. 1973), cert. denied sub nom. Ennis v. United States, 417 U.S. 915, 94 S.Ct. 2616, 41 L.Ed.2d 219 (1974); United States v. Glassel, 488 F.2d 143 (9th Cir. 1973), cert. denied, 416 U.S. 941, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974); United States v. Ryles, 451 F.2d 190 (3d Cir. 1971), cert. denied, 406 U.S. 926, 92 S.Ct. 1796, 32 L.Ed.2d 127 (1972); United States v. Boggus, 411 F.2d 110 (9th Cir. 1969); United States v. Haden, 397 F.2d 460 (7th Cir. 1968), cert. denied 396 U.S. 1027, 90 S.Ct. 574, 24 L.Ed.2d 523 (1970); Bickar v. Gray, 380 F.Supp. 804 (N.D.Ohio 1974).

¶9The second group of cases, however, is helpful, for it comprises cases in which the federal courts have extended the rationale in Lewisand Hoffa to hold that when a defendant invites into his home an undercover agent to consummate what is a lawful transaction, but in ensuing discussion directs the agent’s attention to incriminating evidence, the agent’s observation of the evidence does not constitute an unlawful search and seizure. Thus, in United States v. Guidry, 534 F.2d 1220 (6th Cir. 1976), an undercover agent, disguised as a “helper,” accompanied the service representative of a printing company on a visit to the defendant’s home. The pretended purpose of the representative’s visit was to inspect a part of defendant’s printing press the defendant was attempting to sell. The real purpose was to enable the undercover agent to inspect the press to determine whether it had been used in counterfeiting. The Court held that the agent’s observations of the press during the visit were lawful. Similarly, in United States v. Bullock, 590 F.2d 117 (5th Cir. 1979), an undercover agent pretended to the defendant to be interested in joining the Ku Klux Klan. The defendant invited the agent into his home, where he opened a wooden cabinet and displayed to the agent several firearms. The Court held that the agent’s observation of the firearms was a proper basis for a search warrant for their seizure.

¶10*468Given this evolution of the cases, it is apparent that the issue we must decide is whether the Guidry-Bullock extension of Lewisand Hoffa encompasses the present case. In approaching this question, it is important to emphasize how very limited the Guidry-Bullock extension is. The federal courts have not forgotten the warning in Lewis, Hoffa, and Gouledthat police deception will sometimes vitiate a defendant’s consent to a search. Thus, in criminal prosecutions for income tax evasion, it is a well-established rule that “a consent search is unreasonable under the Fourth Amendment if the consent was induced by the deceit, trickery or misrepresentation of the Internal Revenue Agent.” United States v. Robson, 477 F.2d 13, 17 (9th Cir. 1973). Accord: United States v. Tweel, 550 F.2d 297 (5th Cir. 1977); United States v. Rothstein, 530 F.2d 1275 (5th Cir. 1976); United States v. Dawson, 486 F.2d 1326 (5th Cir. 1973); United States v. Bland, 458 F.2d 1 (5th Cir.), cert. denied, 409 U.S. 843, 93 S.Ct. 43, 34 L.Ed.2d 83 (1972); United States v. Jaskiewicz, 433 F.2d 415 (3d Cir. 1970), cert. denied 400 U.S. 1021, 91 S.Ct. 583, 27 L.Ed.2d 632 (1971); United States v. Tonahill, 430 F.2d 1042 (5th Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 242, 27 L.Ed.2d 247 (1970); United States v. Prudden, 424 F.2d 1021 (5th Cir.), cert. denied 400 U.S. 831, 91 S.Ct. 62, 27 L.Ed.2d 62 (1970); Spahr v. United States, 409 F.2d 1303 (9th Cir.), cert. denied, 396 U.S. 840, 90 S.Ct. 102, 24 L.Ed.2d 91 (1969); Cohen v. United States, 405 F.2d 34 (8th Cir. 1968), cert. denied, 394 U.S. 943, 89 S.Ct. 1274, 22 L.Ed.2d 478 (1969); United States v. Sclafani, 265 F.2d 408 (2d Cir.), cert. denied, 360 U.S. 918, 79 S.Ct. 1436, 3 L.Ed.2d 1534 (1959); United States v. Lewis, 274 F.Supp. 184 (S.D.N.Y.1967). This rule, moreover, is but a corollary of the general rule, applicable in all criminal prosecutions, that “[w]hen an agent assumes a particular pose in order to gain entry into certain premises and then obtains information by engaging in activity not generally expected of one assuming that pose, that information is illegally obtained.” United States v. Ressler, 536 F.2d 208, 211 (7th Cir. 1976). See also United States v. Griffin, 530 F.2d 739, 743 (7th Cir. 1976) (“Trickery, fraud, or misrepresentation on the part of the *469police to gain entry naturally undermines the voluntariness of any consent”).4

¶11Nevertheless, it is clear, in my opinion, that the GuidryBullock extension of Lewis and Hoffa does encompass the present case. While this case differs from Guidryand Bullockto the extent that in each of those cases the defendant specifically directed the agent’s attention to the incriminating evidence-in Guidrythe printing press, in Bullockthe firearms-whereas in this case appellee merely opened the shutters of his residence so that Trooper Shaw could inspect the carpentry inside, the difference is inconsequential. When appellee opened the shutters, the marijuana was in plain view for the trooper to see. Even though appellee did not specifically direct the trooper’s attention to the marijuana, he necessarily had to anticipate that the trooper would see it if the shutters were opened. To state the point in a different way: In Guidrythe defendant knew that he was using his printing press for counterfeiting. He nevertheless permitted the undercover agent to examine the press. No doubt he did so because he believed that the agent was a private printer, who would not know or be able to discover that the press was being used for counterfeiting. This *470belief, however, was held to be misplaced. Here, appellee knew that he had marijuana. He nevertheless permitted the undercover agent to see it. No doubt he did so because he believed that the agent was a photographer, who would not recognize the marijuana as marijuana, or if he did recognize it, would not tell anyone about it. This belief was misplaced. As a matter of law, as it has evolved in the federal courts,5 I see no reason to treat the defendant’s misplaced belief in Guidrydifferently than appellee’s misplaced belief here, simply because in Guidrythe defendant directed the agent’s attention more specifically do the incriminating evidence than appellee did; appellee’s direction of Trooper Shaw’s attention to the marijuana was specific enough.

¶12Although this case does not go beyond Guidryand Bullock, one may easily suppose a case that would. For example, suppose that an undercover agent enters a suspect’s home under the pretense of conducting lawful business, and during the visit, while within the bounds of the suspect’s invitation to enter the home, observes evidence the suspect *471had reason to believe would not be observed. See generally II W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(m) (1978). I have not seen a federal case involving this sort of situation. To date, the federal cases have gone no further than to hold that one who knowingly reveals incriminating evidence runs the risk that the person to whom the evidence is revealed is a government agent who will recognize the evidence and will report his observations of it.

¶13The problem of defining the limits to be set on the use of police deception is one of the most difficult problems of the criminal law. It may well be that certain sorts of criminals cannot be convicted unless the police are permitted to resort to deception.6 The question is then presented: Is it worth convicting them? For when the police are permitted to resort to deception, there are losses as well as gains. The gains may be considerable-for example, the detection and elimination of a carefully organized traffic in drugs. But the losses may also be considerable. The law of search and seizure is not concerned with protecting the criminal's right of privacy but the honest citizen's right. If we are to be able to enjoy liberty and pursue happiness, we must know what part of our world is real and what part is illusion-that our home is our castle, and not a broadcasting center for hidden police transmission devices; that a repairman is a repairman, a business associate a business associate, and not a police agent. Permit the police to make our world illusion, and no one, neither criminal nor honest citizen, will be free. Thus in every case involving police deception the court must balance the gains and losses incident to permitting the deception. Given the difficulty and importance of striking the proper balance, the court should bend every effort to decide each case only on its facts, never going further than it must, and never indulging in broad language that may be misunderstood and so encourage unwholesome practices. I have tried to apply these principles in deciding the present case. Doing so, I have concluded that on its facts, the case *472presents a use of police deception not at all novel, and within the decided cases. Beyond that, I choose not to go.

¶14I concur in the majority’s order reversing the order of the lower court.