Judge says FBI ruse violated rights of Las Vegas hotel guest

AP Photo/John Locher

The FBI violated the rights of a wealthy Malaysian businessman when agents posed as Internet repairmen to get into his Las Vegas suite to search for evidence of wrongdoing during the World Cup soccer tournament last summer, a federal judge ruled Friday.

"The government violated the defendant's Fourth Amendment rights" against unreasonable searches and seizures, U.S. District Judge Andrew Gordon said in a bluntly worded decision.

His ruling threw out evidence collected last July from Wei Seng "Paul" Phua's high-security luxury villa at Caesars Palace.

"This had implications for all Americans," defense attorney David Chesnoff said, hailing the decision as a victory for freedom.

Phua's attorneys said they were stunned to learn that investigators enlisted a Caesars contractor to shut off Internet access so agents disguised as repairmen could enter with hidden cameras. "Law enforcement can't break something in your house and pose as repair people to get inside," Chesnoff said.

The defense lawyers accused the FBI of deceiving a magistrate judge who granted a search warrant by failing to disclose the tactics used to find probable cause and leaving any reference to the ruse out of investigative reports.

Officials with the FBI referred messages seeking comment to the U.S. attorney's office in Las Vegas, which didn't immediately respond.

Gordon's 22-page ruling effectively guts the criminal prosecution of a man authorities characterized as a top member of an Asian organized crime syndicate who flew to Las Vegas last summer on his private jet after having been arrested and charged with operating an illegal sports betting business in the Asian gambling hub of Macau.

The decision, however, doesn't kill the case outright.

Prosecutors said some $13 million in bets had been wagered before the FBI, working with Nevada gambling regulators, raided three Caesars Palace villas where Phua, his son and several other people were staying. Agents seized computers, cellphones and cash.

Gordon called the evidence collected from Phua's suite "fruits of an unconstitutional search," and said it can't be used if the government presses forward with charges that Phua operated an illegal gambling business and transmitted wagering information. The two charges each carry a penalty of up to seven years in prison.

"Permitting the government to create the need for the occupant to invite a third party into his or her home would effectively allow the government to conduct warrantless searches of the vast majority of residences and hotel rooms in America," the judge wrote.

Phua's lawyers also disputed allegations that their client had criminal ties.

"We hope this will bring the case to a close because the decision suppresses all the evidence that directly involves Mr. Phua." defense attorney Thomas Goldstein said.

Federal prosecutors conceded mistakes but argued that the government did nothing malicious and had not violated Phua's constitutional rights.

Prosecutor Kimberly Frayn argued that Internet service isn't an essential service like electricity, air conditioning or water, and that people in the Caesars Palace villas weren't compelled to invite in the agents disguised as repairmen.

"There is not a constitutional right to DSL," she said.

Phua, 50, was the last remaining defendant among eight people arrested in the case, including his son Darren Wai Kit Phua, 23.

Darren Phua was the last of six defendants to plead guilty to lesser charges, forfeit large amounts of money and return to Asia under plea deals banning them from travel to the U.S. for five years. Charges against one defendant were dismissed.