Interesting new CA9 case on the 4th Amendment from Judge Bybee, holding the 4A violated when an officer investigating civl fraud gained entry into a home w/ the ruse that he needed resident's help with a fictitious criminal investigation. A few thoughts.
cdn.ca9.uscourts.gov/datastore/opin…
cdn.ca9.uscourts.gov/datastore/opin…
I have a slight concern about the doctrinal box the court used. Judge Bybee treats the issue as whether there was a search under Jardines, a curtilage case. But this was an actual entry into the home: I would think the issue is whether the consent was valid.
When an officer actually enters the home, of course there was a search: The issue is whether the consent was reasonable b/c it was within the scope of valid voluntary consent.
There's a lot of caselaw on when misrepresentation limits consent, including officers pretending to be needing help when really they're looking for evidence. See, for example, United States v. Turner, 169 F.3d 84 (1st Cir. 1999). scholar.google.com/scholar_case?c…
I'd have to think about it, but it's not obvious to me that seeing the issue as a Jardines question leads to the same test as seeing it as a consent issue. And that raises a broader Q about Jardines: Is it really just a consent case? It presents itself as something different;
It presents itself as a search case, based on norms of permission on curtilage, not a reasonableness case, based on actual consent to enter and search. One is about broad shared norms; the other about case-by-case consent. How to reconcile them is a bit unclear to me.
