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You know, some legal cases do more than raise eyebrows, they can start a push to change the law. So it is with a federal case in Las Vegas now working its way through the courts. The question is whether federal agents can disrupt service to a house, and then masquerading as helpful technicians, gain entry to covertly search the premises all in hopes of finding evidence to later justify a search warrant. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The defendants in this case are not your everyday Americans. They're in fact Chinese gamblers who were in Las Vegas staying at Caesars Palace. Caesars and other gambling casinos thrive on these high rollers and provide them with free villas, butlers and other services. But in this case at least one of the high rollers had been tossed out of Macau for running an illegal sports betting operation. That fact made the Nevada Gaming Commission and the FBI suspicious that they were doing the same thing here. Suspicions, however, aren't enough for a search warrant - not for my house, not for yours or for high-roller villas. And so according to court papers filed by defense lawyers late yesterday, the FBI came up with a plan. Working with a computer contractor for Caesars, the agents first tried to get into the villas by delivering laptops and asking to come in to make sure the connections worked. The butler, however, wouldn't let them in as we hear in this tape of the actual event.
(SOUNDBITE OF ARCHIVED RECORDING)
UNIDENTIFIED MAN #1: I just want to make sure they can connect before I leave. Can we just make sure they can connect OK?
UNIDENTIFIED MAN #2: I don't think that you can go in there right now.
UNIDENTIFIED MAN #1: Oh.
TOTENBERG: Next the agents came up with what defense lawyer Tom Goldstein calls another trick.
TOM GOLDSTEIN: And the trick was, we will cut off their Internet access. And when they tell the hotel, hey, it's not working, we'll dress up as technicians, we'll come inside, we'll claim to be fixing the Internet connection - even though we can't because we broke it from outside - and then we'll just look around and see what we see.
TOTENBERG: Once inside, the agents wandered around the premises as they covertly photographed the rooms, entering the previously off-limits media room where a group of men was watching the World Cup soccer game and looking at betting odds on their laptops, something that's perfectly legal in Las Vegas. What else the agents saw is not entirely clear at this point, but when they left they seem satisfied that they had enough to get a search warrant and later an indictment.
(SOUNDBITE OF ARCHIVED RECORDING)
UNIDENTIFIED MAN #3: Yeah. We saw what we needed to see, very much.
UNIDENTIFIED MAN #4: Very cool.
TOTENBERG: Defense lawyer Goldstein contends that not only was the search illegal, the government knew it was and tried to cover it up. He contends that the materials submitted to a federal magistrate judge in seeking a warrant later carefully eliminated all indications that the Feds had themselves cut the Internet line in order to be invited into the villas as repairmen.
GOLDSTEIN: They just managed not to tell the magistrate what it is they had actually done.
TOTENBERG: Indeed Goldstein says that he and his clients would never have known that it was the FBI that cut the line were it not for one slip of the tongue that the agents made recorded on tape when talking amongst themselves. He adds that when the defense asked for further recordings, the FBI provided two blank CDs and said the recording devices malfunctioned.
GOLDSTEIN: The bottom line here is there's no real way of looking at this other than to say that it was a cover-up.
TOTENBERG: Cover-up or not, the legal theory used here by the Justice Department and the FBI would change the legal rules of the road dramatically if adopted by the courts.
STEPHEN SALTZBURG: The theory behind the search is scary.
TOTENBERG: George Washington University law professor Stephen Saltzburg is the author of a leading criminal law text.
SALTZBURG: It means the government can cut off your service intentionally and then pretended to be a repair-person, and then while they're there, they spent extra time searching your house. It is scary beyond belief.
TOTENBERG: Saltzburg, who has himself worked for the Justice Department, is frankly puzzled by the brazenness of the search here.
SALTZBURG: It's very difficult to understand unless they want to try to push the law of consent beyond where its ever gone before.
TOTENBERG: The Justice Department declined to comment for this story, saying it would make its arguments in court. Nina Totenberg, NPR News, Washington.
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