SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

is not illegal. (People v. Rand (1972) 23 Cal.App.3 rd 579; “Where
the ruse does no more than to cause a defendant, activated by his
own decision, to do an incriminating act—whether that act be a
sale to an undercover agent or a jettisoning of incriminating
material—no illegality exists.” (Id., at p. 583; see also People v.
Martino (1985) 166 Cal.App.3 rd 777, 789; phone call to cocaine
dealer.)
An undercover narcotics agent, misrepresenting his identity by
claiming to be a potential buyer of narcotics, acts lawfully when
invited into the defendant’s home for the purpose of purchasing
narcotics despite the lack of a warrant. (Lewis v. United States
(1966) 385 U.S. 206, 208-209 [17 L.Ed.2 nd 312].)
A police officer who, with information from an untested informant
that drugs were in a house that was for sale, posed as a potential
buyer and was shown the house by the real estate agent, during
which entry the officer made corroborating observations with
which he later obtained a search warrant. The entry was held to be
lawful where the officer did no more than could any prospective
buyer. (People v. Lucatero (2008) 166 Cal.App.4 th 1110)
The Lucatero Court differentiated its facts from People v.
De Caro, supra, noting that the prior ruling’s conclusion
that the entry was illegal was “dicta” only (i.e., not
necessary to its decision) and incorrectly decided.
The Lucatero Court also differentiated its facts from those
of People v. Jaquez, supra, where the officers entered with
the real estate agent’s permission for the known purpose of
conducting a warrantless police investigation. In Jaquez,
the real estate agent was not authorized to allow police into
the house to conduct a criminal investigation. In Lucatero,
where the officer posed as a potential buyer, the real estate
agent was authorized to allow in potential buyers.
The Lucatero Court also differentiated this case from
others were ruses were held to be illegal, the Court noting
that “(t)his is not a ruse in which the officer is invited in
under the ruse that he is a meter reader and then does not
read the meter, or that he is a friend of the repairman, but
then engages in investigatory behavior inconsistent with a
friend’s visit.” (Citing State v. Nedergard (Wash. Ct.App.
1988) 753 P.2 nd 526.)
© 2012 Robert C. Phillips. All rights reserved
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