To Deceive or Not to Deceive: Law Enforcement Officers Gain Broader Approval to Use Deceptive Tactics to Obtain Voluntary Consent
| Citation | Vol. 69 No. 2 |
| Publication year | 2018 |
To Deceive or not to Deceive: Law Enforcement Officers Gain Broader Approval to use Deceptive Tactics to Obtain Voluntary Consent
Alex G. Myers
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"Seldom, very seldom, does complete truth belong to any human disclosure; seldom can it happen that something is not a little disguised, or a little mistaken."1
In the modern era of criminal investigations, law enforcement officers use many tactics from their bag of tricks to catch criminals. One such tactic, deception,2 has long been used to lull suspects into a
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false sense of security.3 Another tactic, voluntary consent,4 is widely used to gain permission to search suspects or their premises.5 While such tactics are prevalent, they must not run into conflict with the United States Constitution. Specifically, the Fourth Amendment of the United States Constitution6 provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."7 Yet how can the use of deception be reasonable under the Fourth Amendment to gain voluntary consent? At the heart of United States v. Spivey8 lies the intersection of deception and voluntary consent. Specifically, "whether deception by law enforcement necessarily renders a suspect's consent to a search of a home involuntary" was the key consideration of the opinion of the United States Court of Appeals for the Eleventh Circuit.9 The court of appeals answered the question in the negative.10 Consequently, the court significantly broadened the approval for law enforcement officers to use deception to gain voluntary consent.
Mr. Eric Spivey and Ms. Chenequa Austin became crime victims on November 6 and 23, 2014, when an individual burglarized their south Florida home twice. Spivey and Austin individually reported the burglaries to local police on two separate occasions. Law enforcement never informed the couple that they had arrested a suspect for the burglaries.12 Unbeknownst to the couple, the burglar began cooperating with law enforcement, stating that upon entering the home he saw substantial evidence of credit-card fraud.13
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After the burglar's revelations, two law enforcement agents of the South Florida Organized Fraud Task Force (SFOFTF)—Secret Service Agent (SSA) Lanfersiek of the United States Secret Service (USSS) and Detective (Det.) Iwaskewycz of the Lauderhill Police Department (LPD)—began investigating the suspected credit-card fraud.14 To that point, no law enforcement had followed up on either of the burglary reports. The agents decided to use the lack of follow-up as a pretext for gaining entry to the home.15
Austin, seeing the agents approach, warned Spivey to hide certain incriminating evidence; Spivey hid a card reader-writer in the oven. Austin answered the door and the agents represented their purpose as following-up on the filed burglary reports. Det. Iwaskewycz introduced himself and concealed SSA Lanfersiek's identity by stating that SSA Lanfersiek was a crime-scene technician with the LPD.16 After these representations, Austin invited the agents into the residence. The agents' actual purpose was to investigate credit-card fraud.17 Neither agent informed the couple that the burglar had been arrested.18
After admitting the agents, the couple began cooperating, contributing copious amounts of information to aid in the burglary investigation.19 Additionally, Austin led the agents along the
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burglar's path through the home.20 Yet, this tour was only offered after persistent questioning by SSA Lanfersiek about where the burglar went in the home and whether he could see those areas.21 Throughout the entire ruse investigation, SSA Lanfersiek maintained his disguise as a crime-scene technician by pretending to brush areas for latent prints.22 Furthermore, both agents observed significant evidence of credit-card fraud.23 At this point, the agents ended their ruse and separated the couple.24
First, Det. Iwaskewycz took Austin outside the home and informed her of the real reason for the agents' presence: to investigate credit-card fraud. Det. Iwaskewycz then asked about the card-embossing machine found in the bedroom.25 Austin stated that she and Spivey found the machine when they moved into the home and assumed that it had been left by the prior owner.26 Unconvinced, Det. Iwaskewycz determined that Austin would no longer cooperate or provide consent to a full search.27 He contacted a colleague in the LPD to run a background check on Austin, which revealed an unrelated outstanding warrant. Det. Iwaskewycz promptly arrested Austin28 and removed her from the scene.29
Then, the agents turned their focus to Spivey, who remained inside the home with SSA Lanfersiek. Notwithstanding the agents' disclosure that the burglary investigation was merely a ruse to investigate suspected credit-card fraud, Spivey remained
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cooperative.30 The agents informed Spivey of his rights, after which he signed two consent forms to a full search of the residence. During the search, agents found drugs, high-end merchandise, a loaded handgun, a second card-embossing machine, seventy-five counterfeit credit cards, and the card reader-writer that Spivey originally hid in the oven.31 Spivey was not arrested at the scene, but was taken to the LPD police station for further questioning. He was later arrested after incriminating statements were made by Austin.32
A grand jury indicted the couple for violations of Sections 1028A(a)(1)-(2)33 and 1029(a)-(b)34 of title eighteen of the United States Code (U.S.C.), bringing five counts each for credit-card fraud and aggravated identity theft.35 Spivey was also indicted for violations of 18 U.S.C. §§ 922(g)(1)36 and 924(e)(1)37 —possessing a firearm as a convicted felon.38
In the United States District Court for the Southern District of Florida, Austin filed a motion to suppress evidence relating to the search of her home.39 She argued that the evidence gathered by the agents should be suppressed as the fruit of fraud in the entry of her home, vitiating any consent.40 The district court denied the motion, noting that the couple voluntarily encountered the agents because they were motivated to retrieve their fraudulently gained property, and that the agents did have some legitimate justification for being in the home.41 Subsequently, both Spivey and Austin conditionally pled
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guilty to the charges, reserving the right to appeal the denial of their motion to suppress. Spivey and Austin were sentenced to seventy months and thirty-six months in prison respectively, both also receiving three years of supervised release. The couple appealed the denial of their motion to suppress.42
On appeal, the couple asserted that the deceptive tactics used to gain consent to enter and search the home were egregious, falsely misleading them "into believing that the [agents] were there to 'assist them,' not to 'bust them.'"43 The court of appeals, in a 2-1 decision, affirmed the denial of the motion to suppress, holding not all deceptive tactics invalidate voluntary consent.44 The couple filed a petition to rehear the case en banc45 that was denied pursuant to a poll of the judges of the Eleventh Circuit.46
Searches conducted outside of the judicial process of a warrant "are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions."47 Voluntary consent is one such exception.48
A. The Voluntary Consent Exception Defined
For the Government to use evidence obtained via a consent search, the consent must be freely and voluntarily given.49 The consent must not be
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the product of coercion.50 For instance, in Schneckloth v. Bustamonte,51 the Supreme Court of the United States considered the impact of duress and coercion on consent.52 During a routine traffic stop,53 the driver of a vehicle was unable to produce identification. Officers then asked if any of the other five occupants could produce identification. Only one occupant, Joe Alcala, was able to comply. Alcala gave permission to search the vehicle upon request from the officers, and even helped conduct the search.54 Subsequently, the officers found several stolen checks.55 The Court reasoned that voluntariness lies on a spectrum, acknowledging the need for law enforcement questioning at one end and society's aversion to unfair, or even brutal, police tactics on the other.56 Courts must look to all of the relevant facts to understand whether a suspect's consent was voluntary and not the product of coercion or duress.57 As such, the Court held that if, after examining all of the relevant facts, the suspect's consent was the product of duress or coercion, then the consent is involuntary.58
The factual question of voluntariness is guided by an examination of the totality of the circumstances.59 For example, in United States v. Chemaly,60 Drug Enforcement Administration (DEA) agents were contacted by an informant. The informant indicated that a man named
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Chemaly would be carrying over $500,000 in a cardboard box61 through United States Immigration and Customs (U.S. Customs)62 at Miami International Airport (MIA). After arriving at the airport, DEA agents were unable to find an individual meeting Chemaly's description.63 As such, agents paged him to the ticket stand. After coming to the ticket stand, Chemaly was taken to a screening area64 and asked if he was carrying large quantities of money. Chemaly stated he was not carrying a large sum of money and surrendered his passport and ticket to an agent. The agent then asked to search Chemaly's bags. Chemaly agreed and the agent discovered a large sum of money.65 The Eleventh Circuit...
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