…and if they do, will a judge toss out any evidence they obtain as a result? The short answer is: police in almost all circumstances are allowed to say whatever they want to get you to incriminate yourself. A short example follows:

When Al Pacino, the low level mobster, introduces Johnny Depp, the undercover police agent, to the other Mafiosos in Donnie Brasco, Depp’s character is justifiably met with some initial skepticism.  Is an undercover police agent in this situation duty bound to reveal his real identity in this situation, if he is asked, “Are you a cop?” Imagine the consequences.

Common sense tells us the answer is no. The undercover agent doesn’t have to choose death simply to maintain the constitutionality of the investigation. (And the U.S. Supreme Court came to the same conclusion in Hoffa v. United States. Yes, the Jimmy Hoffa.)

Even before that decision, police ruses were commonplace, and they have become even more so in today’s drug war environment.

In the recently decided Krause v Kentucky, however, the state’s Supreme Court decided that a trooper went too far over the line in obtaining a drug suspect’s consent to search his home. The police in this case woke the defendant up at 4 o’clock in the morning to tell him that his roommate had been accused of rape that very night. They needed to search the house to verify whether the accuser’s description of the apartment matched the scene of the alleged crime.

In fact, there had been no rape, not even an allegation, nor an accuser. It had all been a lie, intended to cause the known innocent person to allow police entry, where they could then search for drugs. Cocaine was eventually found “in plain view”.

The Court decided to reverse the conviction (affirmed by a lower court) because Schneckloth v. Bustamonte requires consent to search not to be coerced. Even that part of the Schneckloth decision has been watered down over the years, but the Court found that upholding the search would discourage future citizen cooperation in real cases.

Since the state decision was decided, at least in part, on federal Fourth Amendment grounds and federal caselaw, the State of Kentucky may appeal this all the way to the U.S. Supreme Court. Part of me wants to know what the result would be, and the other part fears further erosions of our constitutional rights. As far as the drug war goes, is there no end in sight to the ridiculous police state we are becoming?  Don’t forget, this ludicrous set of facts led to a conviction which was initially affirmed.

(Hat Tip to the Fourth Amendment blog for initially posting about this case; also, please read that blog for useful tips on navigating the confusing Kentucky Supreme Court’s webpage, if you want to read the decision.)