Commonwealth v. Brown

Dissenting Opinion by

Mr. Justice Roberts:

This case rests unhappily between two principles of law, both of which are at once equally weighty, apparently logical, and infuriatingly difficult to resolve with each other. The facts, ably stated in greater detail by the majority, are briefly as follows. Donald Brown was suspected of involvement in several recent crimes in and around Grove City, Pennsylvania, and it was determined by local law enforcement officials that he ought to be questioned. During the course of ■the questioning it was established that Brown was both in need of money and in possession of a recently purchased .32 calibre revolver. One of the officers questioning Brown was aware that just such a weapon had been involved in a recent murder, and suggested to Brown that he might sell the revolver to get some money. After several such suggestions and an offer by the officer to negotiate the sale himself, Brown turned the gun over to the officer for that purpose. The officer did in fact sell the weapon (to the dealer who had originally sold the gun to Brown) on Brown’s account, but he then “borrowed” the gun from the purchaser and had ballistics tests run. The question then is whether the manner in which the Commonwealth came into possession of this weapon violated the fourth amendment’s prohibition against unreasonable searches and seizures. I am compelled to disagree with the *10 majority’s conclusion that those proscriptions were not transgressed. 1

The first relevant line of cases hold that the fourth amendment’s restrictions can be violated by behavior which is deceitful or fraudulent as well as by that which is coercive or stealthful. Gouled v. United States, 255 U.S. 298 , 41 S. Ct. 261 (1921). 2 But not all deceit or guile works such a violation, and the problem lies, as usual, in drawing the line between prohibited and permissible deception.

In Gouled an old business acquaintance of the defendant was contacted by the police and asked to conduct a search of the defendant’s office. Gaining admission by virtue of his acquaintance with the defendant, the informer proceeded to conduct an extensive search of the office when the defendant left the room. The Court said: “The prohibition of the Fourth Amendment is against all unreasonable searches and seizures and if for a government officer to obtain entrance to a man’s house or office by force or by an illegal threat or show of force, amounting to coercion, and then to search for and seize his private papers would be an unreasonable and therefore a prohibited search and seizure, as it certainly would be, it is impossible to successfully contend that a like search and seizure would be a reasonable one if only admission were obtained by stealth instead of by force or coercion. . . . [Wjhether entrance ... be obtained ... by stealth, or through social acquaintance, or in the guise of a business call, and whether the owner be present or not when he enters, any search and seizure subsequently *11 and secretly made in his absence, falls within tbe scope of the prohibition of the Fourth Amendment.” 255 U.S. at 305-06 , 41 S. Ct. at 263-64 .

There are two cases decided under the rationale of Gouled which are strikingly similar to the one before us now. In United States v. Lipshitz, 132 F. Supp. 519 (E.D. N.Y. 1955), a revenue agent was in the process of making a regular audit of the defendant’s books. Before he had concluded the examination, which was being performed with the consent of the defendant, a “special agent” got in touch with him and, explaining that the defendant was suspected of possible criminal violations, instructed him to conduct a more extensive audit. The court held that the information “seized” during the expanded examination was obtained in violation of the fourth amendment. The government argued that the defendant consented to the search, but the court said that the consent went only to the more limited routine audit and did not authorize the expanded search.

Even more on point is United States v. Ong Goon Sing, 149 F. Supp. 267 (S.D. N.Y. 1957). Sing, an immigrant who was suspected of having entered the country illegally, had filed a court action seeking to establish the American citizenship of his two children, both of whom were then living in Hong Kong. An immigration service agent visited Sing, purporting to seek information relevant to this lawsMt. Actually, the agent was interested in the legality of Sing’s presence in the country. The agent was permitted to examine some papers in Sing’s possession, and took some with Mm with Sing’s consent. At Sing’s deportation trial the papers and other evidence obtained by the agent were suppressed. “. . . [T]he movant’s surrender of that portion of the papers which he claimed to own was further tainted by the representation that they would be used for his benefit and the concealment by *12 the Special Agent and the Investigator of the true purpose of their visit.” 149 F. Supp. at 269 . 3

*13 Under the rationale of Gouled and its progeny it would seem that evidence is rendered inadmissible if uncovered by an officer while exceeding the reasonably anticipated scope of a consensual intrusion into an individual's protected rights.

If the cases discussed so far were the only ones applicable there would be no problem with the instant one. They are not. Another line of cases, three of which are fairly recent Supreme Court decisions, hold that the government may indeed employ certain deceptive practices.

In Lopez v. United States, 373 U.S. 427 , 83 S. Ct. 1381 (1963), a federal tax investigator was propositioned by an individual he was investigating. After reporting the bribe offer to his superiors the investigator agreed to a second meeting with the subject, at which meeting he recorded the substance of the conversation. He was permitted to testify at the trial. The Court did not enter into an extensive discussion of the fourth amendment, but merely held it inapplicable, saying: “ [w] e decline to hold that whenever an offer of a bribe is made in private, and the offeree does not intend to accept, that offer is constitutionally protected communication.” 373 U.S. at 438 , 83 S. Ct. at 1387 .

In Hoffa v. United States, 385 U.S. 293 , 87 S. Ct. 408 (1966), an informer worked his way into the Hoffa entourage during the time that Hoffa was being tried for a violation of the Taft-Hartley Act. Hoffa was subsequently convicted of attempting to fix the jury in the Taft-Hartley trial, largely on evidence supplied by the informer. The conviction was affirmed by a seven man Supreme Court, four in the majority, one in dissent, and two of the opinion that the writ of certiorari was improvidently granted. In discussing the fourth amendment the majority said: . . What the Fourth Amendment protects is the security a man relies upon when he places himself or his property *14 within a constitutionally protected area. . . . There he is protected from unwarranted governmental intrusion. ... In the present case, however, it is evident that no interest legitimately protected by the Fourth Amendment is involved. It is obvious that the petitioner was not relying on the security of his hotel suite when he made the incriminating statements to Partin or in Partin’s presence. . . . The petitioner . . . was relying upon his misplaced confidence that Partin would not reveal his wrongdoing.” 385 U.S. at 301-02 , 87 S. Ct. at 413 .

The third case is Lewis v. United States, 385 U.S. 206 , 87 S. Ct. 424 (1966), decided the same day as Hoffa . In this case an undercover federal narcotics agent called the home of a suspected marijuana seller to inquire about purchasing a quantity of that drug. The seller acknowledged that he was able to fulfill the agent’s needs. The agent then drove to the seller’s residence, identified himself as the caller, and the transaction was completed. After one more similar transaction the seller was arrested. The Supreme Court affirmed the conviction eight to one, two concurring. As I read the opinion the majority based its decision on two considerations. First, they felt that ruling out the deception used by the agent would render nearly all undercover work virtually unconstitutional per se, and that such a result would “severely hamper the Government in ferreting out those organized criminal activities that are characterized by covert dealings with victims who either cannot or do not protest.” 385 U.S. at 210, 87 S. Ct. at 427. Secondly, the Court was impressed by the fact that “. . . petitioner invited the undercover agent to his home for the specific purpose of executing a felonious sale of narcotics. . . . During neither of his visits to petitioner’s home did the agent see, hear, or take anything that was not contemplated, and in fact intended, by petitioner as a *15 necessary part of his illegal business.” Ibid. Beyond citing these two factors the Court did nothing except distinguish the case from those petitioner had advanced as controlling.

The fourth and most recent case in this area is United States v. Haden, 397 F. 2d 460 (7th Cir. 1968). In that case the authorities learned that Haden had contacted several foreign chemical producers requesting information about certain processes used in the manufacture of narcotic drugs. An agent, posing as a German chemist, called on Haden. Although Haden at first denied any knowledge of what the agent was talking about they eventually got together and the agent agreed to demonstrate a process used in the manufacture of heroin to Haden for a fee. Haden was to supply the raw material—morphine sulphate tablets. After several false starts Haden got some tablets and turned them over to the agent; they met in a parking lot and Haden told the agent that the tablets were under the rug on the right front floor of his car. While Haden looked on from a distance the agent retrieved the tablets from Haden’s car. Haden was then arrested. The court cited to Lopes, Hoffa and Lewis and affirmed.

The problem now is to determine whether the deceptive conduct utilized in this case is permissible under the Lopes-Hoffa-Lewis rationale or is proscribed by the logic of Gouled and its progeny. 4

*16 I believe that a crucial distinction between these lines of cases lies in whether the law enforcement officer had to exceed the reasonably anticipatible scope of his consensual intrusion into the defendant’s protected security to discover the criminality. All of the decided cases can be rationalized through the use of this distinction, which, I am convinced, is a distinction with a logical difference. When an individual voluntarily exposes obvious criminal behavior to another the risk that the person in Avhom he confides Avill betray the confidence rests Avith the individual who voluntarily exposes himself. However, whenever criminal bebaidor or evidence of criminality is discovered only when the scope of an otherwise consented to intrusion into the constitutionally protected security of another is exceeded, I believe that the fourth amendment is violated.

In Lopez, Hoffa, Lewis, and Haden the eventual defendants all openly committed or admitted to criminal behaAdor in the presence of the government agent. No additional action by the government agent was necessary to positively establish the defendant’s criminality. The only thing separating the defendants from almost certain criminal prosecution was their (misplaced) confidence that the person to whom they disclosed their venality would not reveal it to others.

In the Gouled line of cases the government agents who eventually revealed the defendant’s criminality became aware of that criminality only after invading the defendant’s security more deeply than consented to. They had to take some additional action, not reasonably a part of the consensual intrusion, in order to *17 establish the defendant’s criminality. In Gouled the informer gained admission to the defendant’s office with his consent, but proceeded to conduct a secret and unauthorized search. In Ong Goon Sing the Special Agent removed and used defendant’s papers for a reason different from that given to the defendant. And in Lipshits the agent conducted an audit more extensive than that consented to by the defendant.

Although it is a close question, I believe that the instant case is of the Gouled variety. The officer took the gun from defendant’s possession for a reason different from that given to gain his consent. As in the other cases the government carried out an extensive search and seizure by deceitfully gaining the defendant’s consent to a lesser invasion of his constitutionally protected security. I believe therefore that it constitutes a violation of the fourth amendment.

There is another factor that impels me. toward the conclusion that the behavior in the instant ease violated the fourth amendment—the fact that the misrepresentation was made by an acknowledged government agent. There are two reasons why I feel this factor important. First, I believe that there is an element of coercion in any request made by an officer of the law. Refusing a government agent’s seemingly reasonable request for information or offer of help inevitably casts suspicion on the person who so refuses, thereby creating a not-so-subtle pressure to comply with the request or offer if at all possible. Secondly, I believe that law enforcement personnel ought to be highly credible. I think that one of the factors responsible, and legitimately so, for the holdings in Ong Goon Sing and Lipshits is. the feeling that acknowledged law enforcement officials should not resort to lies. 5

*18 A third reason for holding this behavior violative of the fourth amendment is simply that it permits law enforcement officials to circumvent the warrant requirements of that provision. Why would any officer ever attempt to build up a case of probable cause before he tried to get the evidence through guile and deceit? Approval of the procedure used in this case would, I fear, lead inevitably to its broader utilization. Whatever one thinks of the morality and legality of this conduct in the context of an isolated incident, it would certainly become more distasteful as it became more prevalent.

I would hold that the officer’s conduct in this case resulted in a violation of Brown’s fourth amendment rights. An acknowledged officer of the law misrepresented his intentions to the suspect, and as a result was able to carry out a search in excess of that consented to by the suspect—one which would never have been consented to if the officer’s true intentions were revealed. I believe that this kind of official misbehavior is exactly the kind of thing the fourth amendment was intended to outlaw, and I would not sanction it now.

Mr. Justice Pomeroy joins in this dissent.

It needs almost no mention tliat tlie protections of the fourth amendment are fully applicable against the states. Mapp v. Ohio, 367 U.S. 643 , 81 S. Ct. 1684 (1961).

Interestingly enough, Gouled was cited for this proposition in Hoffa. Hoffa v. United States, 385 U.S. 293 , 301 87 S. Ct. 408, 413 (1966).

Many of the cases following Gouled involving violations by fraud of the fourth amendment have discussed the problem not in terms of the scope of the search, but rather in terms of whether an aUeged consent to the search was vitiated by the searching authority’s use of guile in obtaining that consent. “[T]o be considered voluntary and effective a consent to search must be unequivocal, specific and intelligently given; . . . conduct which is two-faced, vague, or the product of coercion or trickery, actual or implicit, is ineffective. United States v. Thompson, 356 F. 2d 216 (2d Cir. 1965), cert. denied, 384 U.S. 964 , 86 S. Ct. 1591 , 16 L. Ed. 2d 675 (1966); United States v. Smith, 308 F. 2d 657, 663 (2d Cir.), cert. denied, 372 U.S. 906 , 83 S. Ct. 717 , 9 L. Ed. 2d 716 (1963); and . . . ‘consent to a search is not to be lightly inferred.’ United States v. Viale, 312 F. 2d 595 ( 2d Cir.), cert. denied, 373 U.S. 903 , 83 S. Ct. 1291 , 10 L. Ed. 2d 199 (1963); United States v. Como, 340 F. 2d 891 (2d Cir. 1965); United States v. Alberti, 120 F. Supp. 171, 174 (S.D. N.Y. 1954).” United States v. Lewis, 274 F. Supp. 184, 187 (S.D. N.Y. 1967).

See, also, Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S. Ct. 1019, 1023 (1938); Schoepflin v. United States, 391 F. 2d 390 (9th Cir. 1968); Cipres v. United States, 343 F. 2d 95 (9th Cir. 1965); Commonwealth ex rel. Whiting v. Cavell, 244 F. Supp. 560 (M.D. Pa. 1965); see J. Nintz, “Search of Premises by Consent,” 73 Dick. L. Rev. 44 (1968); Comment, “Effective Consent to Search and Seizure,” 113 U. Pa. L. Rev. 260 (1964).

Of all the cases which discuss violations by deceit of the fourth amendment by focusing on the voluntariness of consent, one of the most interesting is Robbins v. MacKenzie, 364 F. 2d 45 (1st Cir.), cert. denied, 385 U.S. 913 , 87 S. Ct. 215 (1966). There an officer knocked on an apartment door and requested entry to question the occupant about a recent crime. Upon entry into the room he saw some fruits of the crime sitting out in the open. The court held the evidence admissible saying: “Here the police were not seeking to bypass the commissioner. They did not . . . misstate their purpose in seeking entry. . . . Rideout [the officer] told the truth; he exercised no ruse; he threatened no force. After entry he made no attempt to engage in a search.” * * * “We would agree . . . that where the officer’s real objective is search and seizure the householder’s consent should not only be clearly voluntary, but also specifically directed toward search and not merely toward entry.” 364 F. 2d at 49 .

“The principle [limiting the application of the Fourth Amendment] that appears to be emerging from the cases is that the Fourth Amendment applies only to searches that intrude upon reasonable expectations of freedom from government search. Although this principle is more congruent with the Fourth Amendment’s central purpose to protect the privacy of the citizen from unreasonable government investigation than the property principle of Olmstead, it is difficult to apply. This difficulty was made patent in . . . Lewis v. United States, Hoffa v. United States, and Osborn v. United States. The Court has been eager to abandon *16 the limiting principle of the past, but inattentive to the more difficult task of articulating and applying a limiting principle for the future.” E. Kitch, “Katz v. United States: The Limits of the Fourth Amendment,” 1968 The Supreme Court Review 133, 134-35 (1968).

I realize that Loped also involved a lie propounded by an acknowledged government official. However, that case is different *18 in that the defendant’s bribe offer made it inevitable that the agent would betray someone’s trust, either Dopez’s or the government’s. If one requests and expects a government officer to act deceitfully he ought not be surprised if he and not the public is the victim of that deceit.