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FBI Sabotages Internet Connection to Send in Trojan Horse; Test Boundaries of Privacy Rights

A warrant obtained by the FBI that resulted in the arrest of “One-Drop” participant Wei Seng Phua constituted an illegal search and seizure under the Fourth Amendment of the United States Constitution, his defense attorney’s stated in a United States District Court filing last week.

As a result, they are requesting that all evidence obtained about Puha’s alleged involvement in hundreds of millions of dollars in illegal sports betting wagers during the 2014 World Cup be deemed inadmissible in any future court proceedings against him.

The case hinges on whether an alleged deception used by FBI agents to gain access to three $25,000-per-night villas where Puha and his associates were staying at the Caesars Palace Hotel and Casino in Las Vegas was legal or not.

The specific facts – involving an alleged government setup – make the case very unique. Given the sensitive nature of the debate surrounding how the government obtains information, it is guaranteed to be closely watched as it moves forward through the court system.

It’s a Trap!

The next time you call for assistance because the internet service in your home is not working the ‘technician’ who comes to your door may actually be a government agent,” said Phua’s attorneys. “He will have secretly disconnected the service, knowing that you will naturally call for help and – when he shows up at your door, impersonating a technician – let him in.”

Upon arriving at Caesar’s Palace, Puha requested that support for eight DSL lines with WiFi access be made available in the villas. Electrical engineers sent to do the work then reported to Caesars’ security personnel their suspicion that the set-up was to be used to operate illegal gambling operations. Caesars contacted the Nevada Gaming Control Board, who subsequently got the FBI involved.

This is where the stories of the FBI and Puha’s attorney’s diverge.

In the probable cause affidavit submitted to the court, the FBI states simply that “Mr. Phua’s associates made an urgent request…for technical assistance with the DSL” in one of the villas. An FBI agent posing as an engineer then entered the villa and gathered enough information to establish probable cause for a warrant.

However, Puha’s attorneys contend that while technically correct, this description of events is deliberately designed to be misleading because it omits a key detail. They write:

They [the FBI agents] would cut off the villas’ high-speed internet service…when they received the call for assistance…then [they would] have to go to the room. The agents would then enter and search the villas under the guise of fixing the problem.”

In other words, the contention is that the FBI created the problem for the express purpose of gaining access to the villa – otherwise off-limits to them – by way of a trojan horse.

Yes, the Government May Fraudulently Represent Itself to You to Gain Your Consent

It is a settled principle of federal law that the Fourth Amendment prohibition on illegal searches and seizures applies to hotel rooms. It is also settled that it is within an individual’s right to consent to a warrantless search, in which case the Fourth Amendment no longer applies.

What is at issue here is the definition of the word “consent.”

One argument that seems intuitive to people is that consent here is impossible because the FBI misrepresented itself for the express purpose of inducing it. However, this line of reasoning has been expressly rejected by the United States Supreme Court in the 1952 case of Lee v. United States:

The contentions that the undercover man’s entrance was a trespass because consent was obtained by fraud…must be rejected.”

But It May Not Coerce You…

However, Puha’s attorneys are among the nation’s best, and so they have not made the argument that the FBI misrepresentation is unconstitutional, in and of itself.

Instead, they are making the case that the deception undertaken here violated the principle of “voluntary consent:”

The Fourth Amendment requires that [the state] demonstrate that the consent was in fact, voluntarily given, and not the result of duress or coercion, express or implied.”

The courts have previously found that the Fourth Amendment does not require law enforcement officers to declare themselves as such when being invited into a home to engage in criminal activity. This case is different because law enforcement artificially created the conditions leading to the invitation to enter the villas.

Essentially, Puha’s lawyer is arguing that by purposefully manipulating circumstances to create a viable pretext for the fraudulent misrepresentation, the state has crossed the line of voluntary consent via “fraud” and entered into the realm of outright “coercion,” which is illegal.

Coercion Hard to Define

Whether or not the FBI acted illegally is going to hinge on how many degrees of separation need to exist between manipulative action by police and actual, legal coercion.

Is it illegal to manipulate circumstances in an attempt to avoid the Fourth Amendment’s warrant requirements in the same way that it is to manipulate people? Your guess is as good as mine.

There seems to be very little legal precedent that can be used to predict how the District Court will rule on the question. Cases of alleged coercion into warrantless searches by police are handled on a case-by-case basis, taking all the relevant circumstances into account.

That being said, most cases where police coercion was found involved the use of threats, force, or an explicit declaration by police that they had a right to search without a warrant.

With none of the traditional factors used to find coercion present in Puha’s case, it is difficult to predict what the outcome will be.

Conclusion of Puha’s Claim

In the conclusion of their filing before the District Court, Puha’s lawyers write:

A ruling upholding these intrusions would cause innocent Americans to live their daily lives burdened with the palpable sense that their government is regularly scheming to spy on them in their homes.”

It’s a sobering thought. Whether or not the District Court believes that is what happened here remains to be seen. The government’s response is expected in the coming days, and the case is scheduled to be heard by the District Court before the end of the year.

 

 

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Bradley Chalupski

Bradley Chalupski made his first deposit onto an online poker site in 2009 and has been paying rake and following the poker scene ever since. He received his J.D. from the Seton Hall University School of Law in 2010.

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