E.D.Ky.: Inviting in a CI unknowingly wearing an audio-visual recording device violates no REP

Inviting in a CI unknowingly wearing an audio-visual recording device violates no reasonable expectation of privacy. United States v. Hight, 2020 U.S. Dist. LEXIS 30546 (E.D. Ky. Feb. 24, 2020):

Moreover, the law is clear that when a trafficker invites an individual into his home “for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, garage, a car, or on the street.” Lewis v. United States, 385 U.S. 206, 87 S. Ct. 424, 427, 17 L. Ed. 2d 312 (1966). In that scenario, even an undercover narcotics agent (unquestionably a government employee and a broad step beyond the CW) may, “in the same manner as a private person,” accept the invitation and enter the home “for the very purposes contemplated by the occupant.” Lewis, 87 S. Ct. at 427. Here, there is no dispute that Hight invited the CI into his home for purposes of a drug sale. Thus, for Fourth Amendment purposes, it is irrelevant whether the CI was a government agent/employee, or whether he was paid on this occasion and prior occasions (or, for that matter, if he was paid as a bi-weekly employee). See United States v. Pollard, 215 F.3d 643, 648 (6th Cir. 2000) (“[I]t is well established that an undercover officer may gain entrance by misrepresenting his identity and may gather evidence while there.” (citing Lewis)). Put simply, the CI’s invited entry into Hight’s home was not a “search” within the meaning of the Fourth Amendment. See United States v. Jones, 533 F. App’x 562, 571 (6th Cir. 2013) (noting that “Lewis is [still good] law,” finding no “illegal search[,]” and rejecting exclusion argument for “audio and video recordings taken during [ ] controlled purchases … when [a] CI entered [defendant’s] home wearing recording devices”).