Agent Carter is perhaps the best Marvel show when it comes to the Fourth Amendment. In the episode “Better Angels,” Peggy covertly enters the private all-male Arena Club, thanks to Howard Stark and his all-female “production assistants” causing a diversion. Our hero snuck around, found a room hidden behind a secret entrance, and attempted to place a wiretap in the room. When caught in the hallway, she quickly offered a ditzy “I get confused around books,” to explain why she was “lost.”

There was giant problem with Peggy Carter’s failed attempt at wiretapping the Arena Club: it grossly violated the Fourth Amendment. However, here is the golden takeaway: the writers KNEW it! New York SSR Chief Jack Thompson verbally complained to Peggy that her actions lacked probable cause and a search warrant.

Gold Star Agent Carter writers for giving a shout out to the US Constitution.

Why does the SSR need a search warrant based on probable cause to search the Arena Club? Because not securing a warrant can end in the evidence being suppressed. For example, in 1922 a police officer entered a residence search for opium under a void search warrant. The officer found a loaded revolver without a permit and arrested the gun owner. The Court held that a “motion for an order directing the return of the revolver and the dismissal of the indictment should be granted, as there was no authority for such seizure, no crime having been committed in the presence of the officer and he having no probable cause for believing that the revolver was in the defendant’s possession; that the officer had no lawful right to search the defendant’s residence and seize the revolver without a search warrant.” People v. Jakira (Ct.Gen.Sess. 1922) 118 Misc. 303, 305.

Cases with warrantless searches of private property usually end with motions to suppress. However, there are exceptions. For example, state Alcoholic Beverage Control agencies can perform warrantless administrative searches of liquor permit-holders’ premises are legal if they are establishing an administrative violation if they are limited in time, place, and manner. AL Post 0557 v. Liquor Control Comm’n (Ct.App. Sep. 24, 1998, CASE NO. 97 JE 2) 1998 Ohio App. LEXIS 4597, at *8, citing New York v. Burger (1987), 482 U.S. 691, 702-03, 96 L. Ed. 2d 601, 107 S. Ct. 2636.

The SSR could not with a straight face perform a liquor license check on the Arena Club, as it would be purely pretextual and grossly exceed the SSR’s authority, not to mention infringing on the state and local jurisdiction.

There are cases with law enforcement legally entering a club and seeing drugs in plain view that do not violate the Constitution. However, those cases are free from law enforcement entering a club by force or fraud. Commonwealth v. Black (1989) 520 Pa. 115, 117-118. In Peggy’s case, using Howard Stark as a diversion bordered on force with the production assistants barging into the Arena Club, and definitely was fraud. Moreover, we know no book has ever confused Peggy Carter.

There is no question Agent Carter did violate the Fourth Amendment in “Better Angels.” Worse yet, Jack Thompson recognizing the headline about the Senator’s resignation could be “fruit of the poisonous tree” and suppressed in trial. However, there is a strong possibility evidence of the conspiracy could be fall under the “inevitable discovery” as the season progresses.

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Josh Gilliland

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.