Post by shoreman on Aug 20, 2006 12:37:31 GMT -5
Ky. court will consider if police can lie
Ruse let detective gain entry to home
By Andrew Wolfson
awolfson@courier-journal.com
The Courier-Journal
When Kentucky State Police Detective Jason Manar knocked on the door of a Paducah home where he'd heard drugs were being sold, he knew the occupants probably wouldn't consent to a search if he said he was looking for narcotics.
So he lied.
He said a girl claimed to have been sexually assaulted inside the house and that he wanted to examine the furniture and bedding to see if it matched the description she gave.
Manar was allowed into the home, where he found a small amount of cocaine and marijuana and then arrested the homeowner, Frederick Carl "Fritz" Krause III.
"I was outraged," recalled Krause, who was fired from his job as a director at WPSD-TV after the March 2003 arrest. "You would think you could trust authorities to tell you the truth."
Krause, then 29, pleaded guilty to possession of drugs and drug paraphernalia -- but on the condition he could challenge the legality of the search.
Today, as a result, the Kentucky Supreme Court will hear arguments on an issue it has never addressed: Whether a defendant's consent to a search can ever be "voluntary" -- as required for a search without a warrant -- when it is the product of a police officer's deceit and misrepresentation.
Courts have long held that police may try to trick suspects during interrogations -- by falsely telling them that their fingerprints were found at the scene, for example, or that a partner confessed and implicated them. The thinking is that the suspect is already in custody and has been read his rights.
But constitutional law experts say the use of trickery to get permission for a search is more troubling because it easily can be coercive.
"Anyone falsely accused of sexually assaulting a young girl would allow the search in order to clear himself," said Wayne LaFave, professor emeritus at the University of Illinois College of Law and author of a six-volume treatise on searches and seizures.
Ruse raises questions
In the Krause case, McCracken Circuit Judge Craig Clymer upheld the search, in part because he said Krause and his roommate, who also was charged and convicted, could have refused it.
But Clymer said the ruse raised "serious constitutional questions" and was "not an appropriate police practice."
Dissenting from a 2-1 decision affirming Clymer's decision, Chief Court of Appeals Judge Sara Combs called the deception "a dangerous threat to the essence and integrity of the Fourth Amendment, which protects against unreasonable searches and seizures."
Manar, who acknowledged in court that he made up the story to get into Krause's home, now works for the FBI in Illinois. Reached by phone yesterday, he said he couldn't comment on the court case, citing bureau policy.
A state police spokesman, Sgt. Phil Crumpton, said the department also couldn't comment, because of the appeal.
But in a brief filed with the Supreme Court, Assistant Attorney General Courtney Hightower said deception alone does not invalidate consent to a search and that most courts have recognized that "ruses are a sometimes necessary element of police work."
In Washington, for example, a state court found in 2003 that Seattle police did not violate the Constitution when they tricked a serial murder suspect into providing a sample of his DNA by sending him a letter -- and a self-addressed, stamped envelope -- from a phony law firm, inviting him to join a nonexistent class-action lawsuit. He licked the envelope, providing the DNA sample.
"You kind of wince a bit and it's not something you want to do, but sometimes you have to use deception because it is necessary to solve crimes," said Louisville Metro Louisville Police Detective Larry Duncan. "I refer to it as a little white lie."
But police commanders say deception can backfire. "If you tell a suspect you've got his prints and he knows he wore gloves" when committing the crime, "he knows you're lying, and you lose any rapport you've build up with him" said metro police Capt. Donald Burbrink.
Metro police Capt. Steve Thompson said deceiving a suspect into consenting to a search is a risk not worth taking -- because of the chance the evidence will be suppressed. He said the department encourages detectives to get search warrants when possible.
Crumpton said state police have no policy on using ruses to get inside a home. The Lexington Police Department also has no written rules on that practice, but Maj. Robert Stack said its officers don't do it.
Mike Schwendeman, a staff attorney at the Kentucky Department of Criminal Justice Training, which instructs officers from many police departments, said through a spokeswoman that officers must be extremely careful using deception in searches because consent must be given "freely and voluntarily."
FBI spokesman Stephen Kodak said if agents use a ruse to get voluntary consent for a search, "our policy is to stay within the parameters of the deception. If we say we are a meter reader, we will search around the meter, not wander around the house."
Searching for drugs
The events leading to Krause's conviction began on March 18, 2003, according to court records, when another man that Manar had arrested on a charge of cocaine possession said he had bought the drug from Krause's roommate, Joe Yamada.
Manar knew he didn't have probable cause to get a warrant, so he went to their house in the middle of the night to see if they would agree to a search. He said he told Yamada or Manar -- he wasn't sure which -- that a girl claimed she had been assaulted and that the assault took place at their house.
"I thought that would ease his mind a little more than confronting him with the drugs," Manar said.
Inside, Manar said, he caught Yamada trying to hide a coke spoon, then found a bag of about 3 grams of cocaine in his bedroom and a bag with slightly more than an ounce of marijuana in another room.
Yamada and Krause pleaded guilty to marijuana and cocaine charges, as well as possession of drug paraphernalia. Yamada, who didn't join the appeal, was placed on probation for three years, and Krause for 2½.
Krause, who now lives in a Chicago suburb where he manages a grocery store, has served out his probation. He said in a phone interview that he is continuing to challenge his conviction because "the right to be secure in your own home has gone out the window."
His lawyer, Jeremy Ian Smith of Paducah, said the case is important to all Kentuckians.
"If the court upholds this decision," he said, "the police will be able to show up at your doorstep, claim they have a report of a fire, and then search your place looking for the alleged heroin that some recently arrested nut who owes you money said would be there."
When Kentucky State Police Detective Jason Manar knocked on the door of a Paducah home where he'd heard drugs were being sold, he knew the occupants probably wouldn't consent to a search if he said he was looking for narcotics.
So he lied.
He said a girl claimed to have been sexually assaulted inside the house and that he wanted to examine the furniture and bedding to see if it matched the description she gave.
Manar was allowed into the home, where he found a small amount of cocaine and marijuana and then arrested the homeowner, Frederick Carl "Fritz" Krause III.
"I was outraged," recalled Krause, who was fired from his job as a director at WPSD-TV after the March 2003 arrest. "You would think you could trust authorities to tell you the truth."
Krause, then 29, pleaded guilty to possession of drugs and drug paraphernalia -- but on the condition he could challenge the legality of the search.
Today, as a result, the Kentucky Supreme Court will hear arguments on an issue it has never addressed: Whether a defendant's consent to a search can ever be "voluntary" -- as required for a search without a warrant -- when it is the product of a police officer's deceit and misrepresentation.
Courts have long held that police may try to trick suspects during interrogations -- by falsely telling them that their fingerprints were found at the scene, for example, or that a partner confessed and implicated them. The thinking is that the suspect is already in custody and has been read his rights.
But constitutional law experts say the use of trickery to get permission for a search is more troubling because it easily can be coercive.
"Anyone falsely accused of sexually assaulting a young girl would allow the search in order to clear himself," said Wayne LaFave, professor emeritus at the University of Illinois College of Law and author of a six-volume treatise on searches and seizures.
Ruse raises questions
In the Krause case, McCracken Circuit Judge Craig Clymer upheld the search, in part because he said Krause and his roommate, who also was charged and convicted, could have refused it.
But Clymer said the ruse raised "serious constitutional questions" and was "not an appropriate police practice."
Dissenting from a 2-1 decision affirming Clymer's decision, Chief Court of Appeals Judge Sara Combs called the deception "a dangerous threat to the essence and integrity of the Fourth Amendment, which protects against unreasonable searches and seizures."
Manar, who acknowledged in court that he made up the story to get into Krause's home, now works for the FBI in Illinois. Reached by phone yesterday, he said he couldn't comment on the court case, citing bureau policy.
A state police spokesman, Sgt. Phil Crumpton, said the department also couldn't comment, because of the appeal.
But in a brief filed with the Supreme Court, Assistant Attorney General Courtney Hightower said deception alone does not invalidate consent to a search and that most courts have recognized that "ruses are a sometimes necessary element of police work."
In Washington, for example, a state court found in 2003 that Seattle police did not violate the Constitution when they tricked a serial murder suspect into providing a sample of his DNA by sending him a letter -- and a self-addressed, stamped envelope -- from a phony law firm, inviting him to join a nonexistent class-action lawsuit. He licked the envelope, providing the DNA sample.
"You kind of wince a bit and it's not something you want to do, but sometimes you have to use deception because it is necessary to solve crimes," said Louisville Metro Louisville Police Detective Larry Duncan. "I refer to it as a little white lie."
But police commanders say deception can backfire. "If you tell a suspect you've got his prints and he knows he wore gloves" when committing the crime, "he knows you're lying, and you lose any rapport you've build up with him" said metro police Capt. Donald Burbrink.
Metro police Capt. Steve Thompson said deceiving a suspect into consenting to a search is a risk not worth taking -- because of the chance the evidence will be suppressed. He said the department encourages detectives to get search warrants when possible.
Crumpton said state police have no policy on using ruses to get inside a home. The Lexington Police Department also has no written rules on that practice, but Maj. Robert Stack said its officers don't do it.
Mike Schwendeman, a staff attorney at the Kentucky Department of Criminal Justice Training, which instructs officers from many police departments, said through a spokeswoman that officers must be extremely careful using deception in searches because consent must be given "freely and voluntarily."
FBI spokesman Stephen Kodak said if agents use a ruse to get voluntary consent for a search, "our policy is to stay within the parameters of the deception. If we say we are a meter reader, we will search around the meter, not wander around the house."
Searching for drugs
The events leading to Krause's conviction began on March 18, 2003, according to court records, when another man that Manar had arrested on a charge of cocaine possession said he had bought the drug from Krause's roommate, Joe Yamada.
Manar knew he didn't have probable cause to get a warrant, so he went to their house in the middle of the night to see if they would agree to a search. He said he told Yamada or Manar -- he wasn't sure which -- that a girl claimed she had been assaulted and that the assault took place at their house.
"I thought that would ease his mind a little more than confronting him with the drugs," Manar said.
Inside, Manar said, he caught Yamada trying to hide a coke spoon, then found a bag of about 3 grams of cocaine in his bedroom and a bag with slightly more than an ounce of marijuana in another room.
Yamada and Krause pleaded guilty to marijuana and cocaine charges, as well as possession of drug paraphernalia. Yamada, who didn't join the appeal, was placed on probation for three years, and Krause for 2½.
Krause, who now lives in a Chicago suburb where he manages a grocery store, has served out his probation. He said in a phone interview that he is continuing to challenge his conviction because "the right to be secure in your own home has gone out the window."
His lawyer, Jeremy Ian Smith of Paducah, said the case is important to all Kentuckians.
"If the court upholds this decision," he said, "the police will be able to show up at your doorstep, claim they have a report of a fire, and then search your place looking for the alleged heroin that some recently arrested nut who owes you money said would be there."
Ruse let detective gain entry to home
By Andrew Wolfson
awolfson@courier-journal.com
The Courier-Journal
When Kentucky State Police Detective Jason Manar knocked on the door of a Paducah home where he'd heard drugs were being sold, he knew the occupants probably wouldn't consent to a search if he said he was looking for narcotics.
So he lied.
He said a girl claimed to have been sexually assaulted inside the house and that he wanted to examine the furniture and bedding to see if it matched the description she gave.
Manar was allowed into the home, where he found a small amount of cocaine and marijuana and then arrested the homeowner, Frederick Carl "Fritz" Krause III.
"I was outraged," recalled Krause, who was fired from his job as a director at WPSD-TV after the March 2003 arrest. "You would think you could trust authorities to tell you the truth."
Krause, then 29, pleaded guilty to possession of drugs and drug paraphernalia -- but on the condition he could challenge the legality of the search.
Today, as a result, the Kentucky Supreme Court will hear arguments on an issue it has never addressed: Whether a defendant's consent to a search can ever be "voluntary" -- as required for a search without a warrant -- when it is the product of a police officer's deceit and misrepresentation.
Courts have long held that police may try to trick suspects during interrogations -- by falsely telling them that their fingerprints were found at the scene, for example, or that a partner confessed and implicated them. The thinking is that the suspect is already in custody and has been read his rights.
But constitutional law experts say the use of trickery to get permission for a search is more troubling because it easily can be coercive.
"Anyone falsely accused of sexually assaulting a young girl would allow the search in order to clear himself," said Wayne LaFave, professor emeritus at the University of Illinois College of Law and author of a six-volume treatise on searches and seizures.
Ruse raises questions
In the Krause case, McCracken Circuit Judge Craig Clymer upheld the search, in part because he said Krause and his roommate, who also was charged and convicted, could have refused it.
But Clymer said the ruse raised "serious constitutional questions" and was "not an appropriate police practice."
Dissenting from a 2-1 decision affirming Clymer's decision, Chief Court of Appeals Judge Sara Combs called the deception "a dangerous threat to the essence and integrity of the Fourth Amendment, which protects against unreasonable searches and seizures."
Manar, who acknowledged in court that he made up the story to get into Krause's home, now works for the FBI in Illinois. Reached by phone yesterday, he said he couldn't comment on the court case, citing bureau policy.
A state police spokesman, Sgt. Phil Crumpton, said the department also couldn't comment, because of the appeal.
But in a brief filed with the Supreme Court, Assistant Attorney General Courtney Hightower said deception alone does not invalidate consent to a search and that most courts have recognized that "ruses are a sometimes necessary element of police work."
In Washington, for example, a state court found in 2003 that Seattle police did not violate the Constitution when they tricked a serial murder suspect into providing a sample of his DNA by sending him a letter -- and a self-addressed, stamped envelope -- from a phony law firm, inviting him to join a nonexistent class-action lawsuit. He licked the envelope, providing the DNA sample.
"You kind of wince a bit and it's not something you want to do, but sometimes you have to use deception because it is necessary to solve crimes," said Louisville Metro Louisville Police Detective Larry Duncan. "I refer to it as a little white lie."
But police commanders say deception can backfire. "If you tell a suspect you've got his prints and he knows he wore gloves" when committing the crime, "he knows you're lying, and you lose any rapport you've build up with him" said metro police Capt. Donald Burbrink.
Metro police Capt. Steve Thompson said deceiving a suspect into consenting to a search is a risk not worth taking -- because of the chance the evidence will be suppressed. He said the department encourages detectives to get search warrants when possible.
Crumpton said state police have no policy on using ruses to get inside a home. The Lexington Police Department also has no written rules on that practice, but Maj. Robert Stack said its officers don't do it.
Mike Schwendeman, a staff attorney at the Kentucky Department of Criminal Justice Training, which instructs officers from many police departments, said through a spokeswoman that officers must be extremely careful using deception in searches because consent must be given "freely and voluntarily."
FBI spokesman Stephen Kodak said if agents use a ruse to get voluntary consent for a search, "our policy is to stay within the parameters of the deception. If we say we are a meter reader, we will search around the meter, not wander around the house."
Searching for drugs
The events leading to Krause's conviction began on March 18, 2003, according to court records, when another man that Manar had arrested on a charge of cocaine possession said he had bought the drug from Krause's roommate, Joe Yamada.
Manar knew he didn't have probable cause to get a warrant, so he went to their house in the middle of the night to see if they would agree to a search. He said he told Yamada or Manar -- he wasn't sure which -- that a girl claimed she had been assaulted and that the assault took place at their house.
"I thought that would ease his mind a little more than confronting him with the drugs," Manar said.
Inside, Manar said, he caught Yamada trying to hide a coke spoon, then found a bag of about 3 grams of cocaine in his bedroom and a bag with slightly more than an ounce of marijuana in another room.
Yamada and Krause pleaded guilty to marijuana and cocaine charges, as well as possession of drug paraphernalia. Yamada, who didn't join the appeal, was placed on probation for three years, and Krause for 2½.
Krause, who now lives in a Chicago suburb where he manages a grocery store, has served out his probation. He said in a phone interview that he is continuing to challenge his conviction because "the right to be secure in your own home has gone out the window."
His lawyer, Jeremy Ian Smith of Paducah, said the case is important to all Kentuckians.
"If the court upholds this decision," he said, "the police will be able to show up at your doorstep, claim they have a report of a fire, and then search your place looking for the alleged heroin that some recently arrested nut who owes you money said would be there."
When Kentucky State Police Detective Jason Manar knocked on the door of a Paducah home where he'd heard drugs were being sold, he knew the occupants probably wouldn't consent to a search if he said he was looking for narcotics.
So he lied.
He said a girl claimed to have been sexually assaulted inside the house and that he wanted to examine the furniture and bedding to see if it matched the description she gave.
Manar was allowed into the home, where he found a small amount of cocaine and marijuana and then arrested the homeowner, Frederick Carl "Fritz" Krause III.
"I was outraged," recalled Krause, who was fired from his job as a director at WPSD-TV after the March 2003 arrest. "You would think you could trust authorities to tell you the truth."
Krause, then 29, pleaded guilty to possession of drugs and drug paraphernalia -- but on the condition he could challenge the legality of the search.
Today, as a result, the Kentucky Supreme Court will hear arguments on an issue it has never addressed: Whether a defendant's consent to a search can ever be "voluntary" -- as required for a search without a warrant -- when it is the product of a police officer's deceit and misrepresentation.
Courts have long held that police may try to trick suspects during interrogations -- by falsely telling them that their fingerprints were found at the scene, for example, or that a partner confessed and implicated them. The thinking is that the suspect is already in custody and has been read his rights.
But constitutional law experts say the use of trickery to get permission for a search is more troubling because it easily can be coercive.
"Anyone falsely accused of sexually assaulting a young girl would allow the search in order to clear himself," said Wayne LaFave, professor emeritus at the University of Illinois College of Law and author of a six-volume treatise on searches and seizures.
Ruse raises questions
In the Krause case, McCracken Circuit Judge Craig Clymer upheld the search, in part because he said Krause and his roommate, who also was charged and convicted, could have refused it.
But Clymer said the ruse raised "serious constitutional questions" and was "not an appropriate police practice."
Dissenting from a 2-1 decision affirming Clymer's decision, Chief Court of Appeals Judge Sara Combs called the deception "a dangerous threat to the essence and integrity of the Fourth Amendment, which protects against unreasonable searches and seizures."
Manar, who acknowledged in court that he made up the story to get into Krause's home, now works for the FBI in Illinois. Reached by phone yesterday, he said he couldn't comment on the court case, citing bureau policy.
A state police spokesman, Sgt. Phil Crumpton, said the department also couldn't comment, because of the appeal.
But in a brief filed with the Supreme Court, Assistant Attorney General Courtney Hightower said deception alone does not invalidate consent to a search and that most courts have recognized that "ruses are a sometimes necessary element of police work."
In Washington, for example, a state court found in 2003 that Seattle police did not violate the Constitution when they tricked a serial murder suspect into providing a sample of his DNA by sending him a letter -- and a self-addressed, stamped envelope -- from a phony law firm, inviting him to join a nonexistent class-action lawsuit. He licked the envelope, providing the DNA sample.
"You kind of wince a bit and it's not something you want to do, but sometimes you have to use deception because it is necessary to solve crimes," said Louisville Metro Louisville Police Detective Larry Duncan. "I refer to it as a little white lie."
But police commanders say deception can backfire. "If you tell a suspect you've got his prints and he knows he wore gloves" when committing the crime, "he knows you're lying, and you lose any rapport you've build up with him" said metro police Capt. Donald Burbrink.
Metro police Capt. Steve Thompson said deceiving a suspect into consenting to a search is a risk not worth taking -- because of the chance the evidence will be suppressed. He said the department encourages detectives to get search warrants when possible.
Crumpton said state police have no policy on using ruses to get inside a home. The Lexington Police Department also has no written rules on that practice, but Maj. Robert Stack said its officers don't do it.
Mike Schwendeman, a staff attorney at the Kentucky Department of Criminal Justice Training, which instructs officers from many police departments, said through a spokeswoman that officers must be extremely careful using deception in searches because consent must be given "freely and voluntarily."
FBI spokesman Stephen Kodak said if agents use a ruse to get voluntary consent for a search, "our policy is to stay within the parameters of the deception. If we say we are a meter reader, we will search around the meter, not wander around the house."
Searching for drugs
The events leading to Krause's conviction began on March 18, 2003, according to court records, when another man that Manar had arrested on a charge of cocaine possession said he had bought the drug from Krause's roommate, Joe Yamada.
Manar knew he didn't have probable cause to get a warrant, so he went to their house in the middle of the night to see if they would agree to a search. He said he told Yamada or Manar -- he wasn't sure which -- that a girl claimed she had been assaulted and that the assault took place at their house.
"I thought that would ease his mind a little more than confronting him with the drugs," Manar said.
Inside, Manar said, he caught Yamada trying to hide a coke spoon, then found a bag of about 3 grams of cocaine in his bedroom and a bag with slightly more than an ounce of marijuana in another room.
Yamada and Krause pleaded guilty to marijuana and cocaine charges, as well as possession of drug paraphernalia. Yamada, who didn't join the appeal, was placed on probation for three years, and Krause for 2½.
Krause, who now lives in a Chicago suburb where he manages a grocery store, has served out his probation. He said in a phone interview that he is continuing to challenge his conviction because "the right to be secure in your own home has gone out the window."
His lawyer, Jeremy Ian Smith of Paducah, said the case is important to all Kentuckians.
"If the court upholds this decision," he said, "the police will be able to show up at your doorstep, claim they have a report of a fire, and then search your place looking for the alleged heroin that some recently arrested nut who owes you money said would be there."
