There are three constitutionally permissible encounters between citizens and police:

• An officer can approach a citizen at any time and ask questions so long as the citizen is not detained against his/her will
• An officer may seize a person but must have reasonable articulable suspicion that a crime has been or is about to be committed and the detention must be temporary and not last longer than is necessary to effectuate the purpose of the stop;
• An officer may arrest someone if the officer has probable cause to believe an offense has been or is currently being committed.

In a level two encounter the officer must be able to articulate or say why he has formed the objective impression that a crime has been or is about to be committed.

In State v. Chism, 107 P.3d 706 (Utah App 2005) an officer pulled defendant’s vehicle over for a traffic violation. On approaching the vehicle, the officer smelled tobacco smoke coming from the vehicle and observed two packs of cigarettes on the dashboard and several vehicle occupants who did not appear to be old enough to possess tobacco. The focus of the investigation shifted away from a traffic stop to investigating whether the occupants of the vehicle were old enough to possess tobacco. All occupants, including defendant Chism, produced identification. Chism’s driver’s license showed his age as 19 years old. The legal age to possess tobacco in Utah is 18. Without articulating his suspicions, the officer detained the occupants of the vehicle while he ran computer checks on their I.D.

The court ruled that the burden was on the state to support the officer’s suspicion that the defendant was underage to possess tobacco. Accordingly the officer’s detention to further investigate the validity of his identification and ultimate search and arrest were all unlawful. Id.

It is well settled under the Fourth Amendment that a search conducted without a warrant based upon probable cause is ‘per se unreasonable…subject only to a few specifically established and well-delineated exceptions.’  Katz v. United States, 389 U.S. 347, 357 (1967).  One such exception to the search warrant requirement is a search conducted based on consent.   Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).   When the suspect is not in custody and the “state attempts to justify the search based on his consent”, the State must show “that the consent was in fact freely given, and not the result of duress or coercion, express or implied.”  Id. at 218.  The voluntariness of consent is based on the totality of the surrounding circumstances.  Id.  The Utah Supreme Court lists four factors in determining whether consent is voluntary based on the totality of circumstances.  Factors showing a lack of duress or coercion include: “1) the absence of a claim of authority to search by the officers; 2) the absence of an exhibition of force by the officers; 3) a mere request to search; 4) cooperation by the owner…and; 5) the absence of deception or trick on the part of the officer.”  State v. Whittenback, 621 P.2d 103, 106 (Utah 1980).

It is a violation of the Fourth Amendment for agents to use a ruse for the intended purpose of gaining entry to Defendant’s residence. Although it is permissible for police to conceal their identity in obtaining an invitation into a suspect’s home, such as the case in undercover operations, the entry is lawful only for the “very purpose contemplated by the occupant.”  Lewis v. United States, 385 U.S. 206, 211 (1966).  However, it is a violation of the Fourth Amendment if entry is gained through misrepresentation of the investigations true nature. United States v. Bosse, 898 F.2d 113, 115 (9^th Cir. 1990).  “When a government agent presents himself to a private individual, and seeks that individual’s cooperation based on his status as a government agent, the individual should be able to rely on the agent’s representations.”  Id.    As a result, when a suspect “is misinformed as to the purpose for which the agent seeks entry cannot be justified by consent.”  Id. (quoting United States v. Phillips, 497 F.2d 1131, 1135 n.4 (9^th Cir. 1974)).

Bottom line, police trickery which creates an emergent situation for the defendant whether it be a car crash, gas leak or other troubling event is an impermissible violation of the Fourth Amendment and any evidence obtained as a result of such trickery will be suppressed.