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Lying about a search warrant is not a substitute for having one

When police officers can lie and about what they can lie is a recurring issue in criminal appeals. Courts have found that not telling the truth can be a useful tool in investigations, but is checked by the Constitution. For example, a detective can, while interrogating a suspect, lie about the evidence the police already have in their possession. Police can lie about the real reason for stopping a driver — they say it was for speeding, but in fact was because they believed the driver was a drug dealer. But, police cannot tell you they have a search warrant when, in fact, they do not have one.

In May 2012, Kenneth Rush was staying in Marquita Wills’s apartment. She contacted the police because she suspected Rush was dealing drugs out of her apartment and she asked them to remove him from the apartment. Wills gave police a key to the apartment and signed a consent form allowing them to search it as well. She added that she was afraid of Rush because his family had a history of violence. Crucially to the decision, however, she did not say that he had ever used or threatened violence against her.

Six officers went to the apartment. They opened the door with Wills’s key and found Rush asleep in the master bedroom. At first, they placed him on the couch in handcuffs, but after confirming that no one else was in the apartment they uncuffed him.

When Rush asked what was happening, officers told him they had a search warrant for the apartment. The officer who told that lie knew they did not have a warrant, but testified that he lied to protect Wills. The officers searched the apartment and found over twenty-eight grams of crack cocaine and digital scales. Rush, when asked, admitted that the drugs were his and also told the officers the name of his supplier.

Rush was not arrested at that time nor did the officers remove him from the apartment as Wills had requested. The next day, he met with officers and provided them additional information about is supplier. After that meeting, officers again let him go without arresting him.

Rush was eventually arrested and charged with possessing with intent to distribute the crack in the apartment. He moved to suppress the warrantless search of the apartment. The district court found that lying about the search warrant violated Rush’s Fourth Amendment rights to prevent the officers from entering his home, but it nonetheless declined to suppress the evidence because the lie was part of a “justifiable effort to protect Ms. Wills.” It further held that suppression would not deter future police misconduct of this sort because there was a “vanishingly low likelihood of future recurrences” of the same police actions.

The Circuit Court rejected this reasoning by looking back to cases examining the good-faith exception to the warrant requirement. Good faith applies when police believe their conduct is lawful or their conduct involves only “simple, ‘isolated’ negligence.” An outright lie about the presence of a warrant fit into neither of those categories. In addition to reminding the government that police officers cannot lie about having a warrant in order to search a house, the case emphasized that their claimed rationale for the lie, protecting Wills, did not excuse their conduct.

The outcome in the case seems obvious. And, indeed, the Court’s opinion was relatively brief. But, given the wide latitude that courts give law enforcement in conducting investigations, it is natural that police would seek to test and press the limits to their actions. Opinions like this are needed to remind the police and the government that while courts do not like to get involved in picking and choosing police tactics, that does not give police a free hand to do as they please.

Congratulations to Rhett Johnson from the Office of the Federal Defender for West Virginia for the victory in this case.

Andrew Szekely is a Greenbelt-based criminal defense attorney with a practice specializing in federal criminal defense and serious state-court crimes in Maryland and the District of Columbia. He also maintains an active appellate, post-conviction, and habeas corpus practice.

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