defendant's dwelling by pretending to be a drug buyer;
defendant was a seller. In denying suppression, the Court
stressed the fact that defendant voluntarily admitted the
agent to further an unlawful end and that the agent acted
within the scope of the license he was granted. Id. at 210, 87
S.Ct. at 427.
Some courts have extended Lewis to cases where an undercover
agent gains entry to a dwelling pursuant to some lawful
behavior. See, e.g., United States v. Scherer, 673 F.2d 176
(7th Cir.), cert. denied, 457 U.S. 1120, 102 S.Ct. 2935, 73
L.Ed.2d 1334 (1982); United States v. Wright, 641 F.2d 602 (8th
Cir.), cert. denied, 451 U.S. 1021, 101 S.Ct. 3014, 69
L.Ed.2d 394 (1981) (agent pretended to have car trouble and
wanted to borrow tools).
The case at bar is distinguishable from the Lewis line
because of the nature of the police deception. By claiming
there was a possible gas leak, defendant was led to believe
there was a life-threatening emergency. His decision to admit
the agents was thus not "voluntary." Defendant's only "free
choice" in this case was to have refused entry to the "gas
company" and risk blowing up himself and his neighbors. See
People v. Jefferson, 43 A.D.2d 112, 350 N.Y.S.2d 3 (1973)
(excluded evidence in plain view where police gained entry by
identifying themselves as police but claiming to be
investigating a gas leak).
Even if the courts permit some forms of deception to gain
entry to a private dwelling, there are sound public policy
reasons for distinguishing the type of deception engaged in
here. We take judicial notice of the suspicion with which the
police, fire departments and public utilities are regarded in
many poor urban communities. In order to ensure cooperation
in truly life-threatening situations, it is vital to maintain
the public trust in emergency services. When the police or
the gas company come to the door warning of a real gas leak
or other life-threatening emergency, it is in everyone's
interest that they be believed. Sanctioning the type of
deception engaged in here would send a message to all those
with reason to fear "the system" (whether they be law abiding
or law breaking) that emergency warnings cannot be trusted.
False cries of "wolf" have never been condoned by society.
Residents should be habituated to assist in calls for public
assistance by emergency services. Any other rule would risk
serious dangers to life if people refused to open their doors
or vacate the premises in case of fire, toxic fumes, gas
leaks, flooding or the like.
The original entry was illegal. "Consent" was obtained by
falsely inducing fear of an imminent life-threatening danger.
Was the subsequent written consent a valid waiver of the
right to keep the police from conducting a warrantless
search? In order for such consent to be effective, the
government must prove not simply that the consent was
granted, but also that it was independent of a prior illegal
taint. The Supreme Court has established as a test
whether granting establishment of the primary
illegality, the evidence to which instant
objection is made has been come at by
exploitation of that illegality or instead by
means sufficiently distinguishable to be purged
of the primary taint.
Brown v. Illinois,