Case: 15-15023 Date Filed: 06/28/2017 Page: 1 of 35
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 15-15023 ________________________
D.C. Docket No. 0:15-cr-60082-WPD-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee, versus
ERIC JERMAINE SPIVEY, CHENEQUA AUSTIN,
Defendants - Appellants.
________________________
Appeals from the United States District Court for the Southern District of Florida ________________________
(June 28, 2017)
Before WILLIAM PRYOR, MARTIN, and BOGGS, * Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
* Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by designation. Case: 15-15023 Date Filed: 06/28/2017 Page: 2 of 35
This appeal presents the question whether deception by law enforcement
necessarily renders a suspect’s consent to a search of a home involuntary.
Chenequa Austin and Eric Spivey shared a home and a penchant for credit-card
fraud. And they both became crime victims. Their home was twice burgled, which
each time they reported to the police. Two officers, one posing as a crime-scene
technician, came to their house on the pretense of following up on the burglaries,
but mainly, unbeknownst to them, to investigate them for suspected fraud. The
police had already caught the burglar who, in turn, had informed the police that
Austin and Spivey’s house contained evidence of credit-card fraud. Spivey hid
some incriminating evidence in the oven before Austin invited the officers inside.
The couple then provided the officers video footage of the burglary and led the
officers through their home. After the officers saw a card-embossing machine,
stacks of cards, and a lot of high-end merchandise in plain view, they informed
Spivey that they investigated credit-card fraud. Spivey then consented to a full
search that turned up a weapon, drugs, and additional evidence of fraud. Austin
and Spivey moved to suppress all evidence obtained as a result of the officers’
“ruse.” The district court denied the motion to suppress because it found that
Austin’s consent to the initial search was voluntary and, alternatively, that Spivey’s
later consent cured any violation. Austin and Spivey each pleaded guilty to several
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offenses, conditioned on the right to pursue this appeal of the denial of their motion
to suppress. Because Austin made a strategic choice to report the burglary and to
admit the officers into her home, the district court did not clearly err in finding that
Austin’s consent was voluntary. We affirm.
I. BACKGROUND
Caleb Hunt twice burgled the Lauderhill, Florida, home of Chenequa Austin
and Eric Spivey. Spivey reported the first burglary to the police. The second time,
Hunt tripped a newly installed security system. Austin spoke with the police about
the second burglary when officers responded to the audible alarm. When the police
caught Hunt, he informed them that the residence was the site of substantial credit-
card fraud. Indeed, Hunt told the police that the home “had so much high-end
merchandise in it that he [burgled] it twice.”
Two members of the South Florida Organized Fraud Task Force then
became involved. Special Agent Jason Lanfersiek works for the United States
Secret Service investigating financial crimes, including credit-card fraud. Detective
Alex Iwaskewycz works for the Lauderhill Police Department. The Task Force
decided to have Lanfersiek and Iwaskewycz investigate Austin and Spivey’s
suspected fraud.
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The district court found that Lanfersiek and Iwaskewycz went to the
residence “on the pretext of following up on two burglaries, which was a legitimate
reason for being there, but not the main or real reason.” Iwaskewycz displayed a
gun and a badge. Lanfersiek wore a police jacket. Austin saw the agents
approaching and went inside to warn Spivey and tell him to hide the card
reader/writer in the oven. When the agents told Austin they were there to follow up
on the burglary, Austin invited them in. The officers told Austin that Lanfersiek
was a crime-scene technician for the police department, and Lanfersiek maintained
the façade by pretending to brush for latent fingerprints. Austin led Lanfersiek and
then Iwaskewycz through the house to the master bedroom, following the burglar’s
path. Spivey showed Iwaskewycz home-surveillance video of the burglary. A
detective assigned to the burglary investigation later used that video evidence to
help prosecute Hunt. Inside the home, both officers observed evidence of fraud,
including a card-embossing machine, stacks of credit cards and gift cards, and
large quantities of expensive merchandise such as designer shoes and iPads. Austin
and Spivey separately told the officers that the embossing machine had been left in
the apartment before they moved in. Iwaskewycz arrested Austin on an unrelated
active warrant and removed her from the scene.
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The officers then ended their ruse and told Spivey that they investigated
credit-card fraud. Nevertheless, Spivey remained cooperative. After being advised
of his rights, he signed two forms giving his consent to the officers to conduct a
full search of the home and a search of his computer and cell phone. In that search,
officers recovered high-end merchandise, drugs that field-tested positive as
MDMA, a loaded handgun, an embossing machine, a card reader/writer (found
inside the oven), and at least seventy-five counterfeit cards.
After a federal grand jury returned an indictment against them, Austin and
Spivey moved to suppress all evidence procured as a result of the officers’ “entry
into Austin’s residence . . . by fraud . . . which vitiated any consent.” The district
court denied the motion to suppress and rejected a “bright line rule that any
deception or ruse vitiates the voluntariness of a consent-to search.” The district
court explained, “Austin wanted to cooperate in solving the burglaries; expensive
shoes had been stolen.” The district court found that “Spivey thought he could talk
his way out of a predicament and was willing to risk exposure to credit[-]card
prosecution to get his property back. Thieves usually don’t report that the property
that they stole has been stolen.” And “any problem with [Austin’s] initial consent
was cured by Spivey’s later signing a written waiver of a search warrant.” It
determined that “the government has shown by clear and positive testimony that
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the consents were voluntary, unequivocal, specific, intelligently given, and
uncontaminated by duress or coercion.”
Both Austin and Spivey conditionally pleaded guilty. Austin pleaded guilty
to conspiracy to commit access-device fraud and possess device making-
equipment, 18 U.S.C. § 1029(b)(2), and aggravated identity theft, id.
§ 1028A(a)(1). Spivey pleaded guilty to conspiracy to commit access device fraud
and possess device-making equipment, id. § 1029(b)(2), aggravated identity theft,
id. § 1028A(a)(1), and being a felon in possession of a firearm, id. § 922(g)(1).
Both pleas reserved the right to appeal the denial of the motion to suppress. The
district court sentenced Austin to thirty-six months in prison and three years of
supervised release and Spivey to seventy months in prison and three years of
supervised release.
III. STANDARD OF REVIEW
“A denial of a motion to suppress involves mixed questions of fact and law.
We review factual findings for clear error, and view the evidence in the light most
favorable to the prevailing party. We review de novo the application of the law to
the facts.” United States v. Barber, 777 F.3d 1303, 1304 (11th Cir. 2015) (citations
omitted). Voluntariness is “a question of fact,” Schneckloth v. Bustamonte, 412
U.S. 218, 227 (1973), that we may disturb only if clearly erroneous, United States
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v. Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984). “Normally, we will accord the
district judge a great deal of deference regarding a finding of voluntariness, and we
will disturb the ruling only if we are left with the definite and firm conviction that
the trial judge erred.” United States v. Fernandez, 58 F.3d 593, 596–97 (11th Cir.
1995) (citation omitted). But we will review de novo the district court’s application
of the law about voluntariness to uncontested facts. See United States v. Garcia,
890 F.2d 355, 359–60 (11th Cir. 1989) (explaining that because “we believe[d] that
the trial court[’s]” “decision was based on the application of what he believed to be
the existing law as applied to the uncontroverted facts,” we “review[ed] the judge’s
finding of voluntariness de novo”).
IV. DISCUSSION
The Fourth Amendment 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, and no warrants shall issue, but upon probable
cause.” U.S. Const. Amend. IV. A search is reasonable and does not require a
warrant if law enforcement obtain voluntary consent. Schneckloth, 412 U.S. at 222.
The parties agree that Austin consented to the search, so the sole question on
appeal is whether her consent was voluntary.
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“A consensual search is constitutional if it is voluntary; if it is the product of
an ‘essentially free and unconstrained choice.’” United States v. Purcell, 236 F.3d
1274, 1281 (11th Cir. 2001) (quoting Schneckloth, 412 U.S. at 225). Voluntariness
is “not susceptible to neat talismanic definitions; rather, the inquiry must be
conducted on a case-by-case analysis” that is based on “the totality of the
circumstances.” United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989) (citing
Schneckloth, 412 U.S. at 224–25). Relevant factors include the “voluntariness of
the defendant’s custodial status, the presence of coercive police procedure, the
extent and level of the defendant’s cooperation with police, the defendant’s
awareness of his right to refuse to consent to the search, the defendant’s education
and intelligence, and, significantly, the defendant’s belief that no incriminating
evidence will be found.” Chemaly, 741 F.2d at 1352 (citation omitted).
Deceit can also be relevant to voluntariness. Because we require “that the
consent was not a function of acquiescence to a claim of lawful authority,” Blake,
888 F.2d at 798, deception invalidates consent when police claim authority they
lack. For example, when an officer falsely professes to have a warrant, the consent
to search is invalid because the officer “announces in effect that the occupant has
no right to resist the search. The situation is instinct with coercion—albeit
colorably lawful coercion.” Bumper v. North Carolina, 391 U.S. 543, 550 (1968).
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And when an officer lies about the existence of exigent circumstances, he also
suggests that the occupant has no right to resist and may face immediate danger if
he tries. See, e.g., United States v. Harrison, 639 F.3d 1273 (10th Cir. 2011)
(agents falsely implied that a bomb was planted in the apartment they sought to
search). Deception is also likely problematic for consent if police make false
promises. See United States v. Watson, 423 U.S. 411, 424 (1976) (“There were no
promises made to him and no indication of more subtle forms of coercion that
might flaw his judgment.”); cf. Alexander v. United States, 390 F.2d 101, 110 (5th
Cir. 1968) (“We do not hesitate to undo fraudulently induced contracts. Are the
disabilities here less maleficent?”).
In the tax context, we have ruled that when a taxpayer asked whether a
“special agent” was involved in the investigation and the Internal Revenue Service
answered “no,” consent was involuntary because it was induced by an official
misrepresentation that suggested the investigation was only civil, not criminal.
United States v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977). Contrary to the dissent’s
assertion that “consent searches are almost always unreasonable” when induced by
deceit, Dissenting Op. at 26 (citing Tweel, 550 F.2d at 299), we have never applied
this decision outside the administrative context, let alone to a situation in which the
suspect is aware of the criminal nature of the investigation. This limitation makes
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sense in the light of the rule that police officers are permitted to obtain a confession
through deception under the Fifth Amendment. See Illinois v. Perkins, 496 U.S.
292, 297 (1990) (“Ploys to mislead a suspect or lull him into a false sense of
security that do not rise to the level of compulsion or coercion to speak are not
within Miranda’s concerns.”); see also United States v. Peters, 153 F.3d 445, 463
(7th Cir. 1998) (Easterbrook, J., concurring) (“If a misunderstanding of one’s
status as a target—misunderstanding abetted by calculated silence and half-truths
from agents and prosecutors—does not invariably make a statement involuntary,
why should it make a disclosure of physical evidence involuntary?”).
The Fourth Amendment allows some police deception so long the suspect’s
“will was [not] overborne,” Schneckloth, 412 U.S. at 226. Not all deception
prevents an individual from making an “essentially free and unconstrained choice,”
id. at 225. For example, undercover operations do not invalidate consent. Lewis v.
United States, 385 U.S. 206, 206–07 (1966). When an undercover agent asks to
enter a home to buy drugs, the consent is voluntary despite the agent’s
misrepresentations about his identity and motivation. Id. “If dissimulation so
successful that the suspect does not know that he is talking to an agent is
compatible with voluntariness, how could there be a rule that misdirection by a
known agent always spoils consent?” Peters, 153 F.3d at 464 (Easterbrook, J.,
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concurring). Although we distinguish undercover investigations from those where
the officer is “seeking . . . cooperation based on his status as a government agent,”
United States v. Centennial Builders, Inc., 747 F.2d 678, 682 (11th Cir. 1984), an
individual who interacts with officers undertakes a knowing risk that the officers
may discover evidence of criminal behavior. Cf. United States v. Wuagneux, 683
F.2d 1343, 1348 (11th Cir. 1982) (“[A]ll taxpayers, especially businessmen, are
presumed to be aware of th[e] possibility” “that a routine civil audit may lead to
criminal proceedings if discrepancies are uncovered.”). That “fraud, deceit or
trickery in obtaining access to incriminating evidence can make an otherwise
lawful search unreasonable,” United States v. Prudden, 424 F.2d 1021, 1032 (5th
Cir. 1970) (emphasis added), does not mean that it must. Particularly because
physical coercion by police is only one factor to be considered in the totality of the
circumstances, see Chemaly, 741 F.2d at 1352, we should approach psychological
coercion the same way. The district court correctly stated the law when it
explained that deception does not always invalidate consent.
Austin and Spivey argue that the officers’ deception was egregious because
the purpose of the ruse was to mislead them into believing that the officers were
there to “assist them,” not to “bust them.” They argue that a “ruse” about whether
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Austin was the target of the investigation is worse than misrepresentations about
whether an investigation is civil or criminal. We disagree.
We cannot say that it was clear error for the district court to find that,
although the burglary investigation was “not the main or real reason” for the
search, it was “a legitimate reason for being there.” Iwaskewycz testified that it
was a “dual-purpose investigation.” And the district court found that “the
videotape was eventually used in the burglary investigations.” Austin argues that
the stated purpose “was nothing more than a ‘pretext’” because one agent had the
“exclusive purpose” and the other had the “primary purpose” “to investigate the
report of a credit-card plant,” but even this argument concedes that at least one of
the officers had a dual purpose. What matters is the existence of a legitimate reason
to be there, not the priority that the officers gave that reason.
The subjective motivation of the officers is irrelevant. Consent is about what
the suspect knows and does, not what the police intend. “Coercion is determined
from the perspective of the suspect.” Illinois v. Perkins, 496 U.S. 292, 296 (1990).
Whether officers “deliberately lied” “does not matter” because the “only relevant
state of mind” for voluntariness “is that of [the suspect] himself.” United States v.
Farley, 607 F.3d 1294, 1330 (11th Cir. 2010). And officers are entitled to be silent
about their motivations. See Prudden, 424 F.2d at 1033 (“[T]he agents did not have
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to warn him directly that they were undertaking a criminal investigation.”). The
officers’ subjective purpose in undertaking their investigation does not affect the
voluntariness of Austin’s consent. See Farley, 607 F.3d at 1330–01.
Pretext does not invalidate a search that is objectively reasonable. Cf. Whren
v. United States, 517 U.S. 806, 814 (1996) (“[T]he Fourth Amendment’s concern
with ‘reasonableness’ allows certain actions to be taken in certain circumstances,
whatever the subjective intent.”); Heien v. North Carolina, 135 S. Ct. 530, 539
(2014) (“We do not examine the subjective understanding of the particular officer
involved.”). As long as the officers are engaging in “objectively justifiable
behavior under the Fourth Amendment,” Whren, 517 U.S. at 812, their subjective
intentions will not undermine their authority to stop or search, or in this appeal, to
ask for consent to search. Responding to a burglary report is objectively justifiable
behavior, and we must ask only whether the officers prevented Austin from
making a free and unconstrained choice.
Stripped of its subjective purposes, the officers’ “ruse” was a relatively
minor deception that created little, if any, coercion. The officers admittedly
misrepresented Agent Lanfersiek’s identity, but there is no evidence that his exact
position within the hierarchy of criminal law enforcement was material to Austin’s
consent. Wuagneux held that even though the agent did not reveal that he was a
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part of a strike force, the suspect’s knowledge that the agent worked for the
Internal Revenue Service and was empowered to conduct a tax audit was sufficient
for consent. 683 F.2d at 1347–48. Austin likewise knew that Agent Lanfersiek was
involved in criminal investigations and was going to search her home. Austin
understood that she faced a risk that Lanfersiek would notice evidence of the
credit-card fraud when she consented to his presence in her home. His identity is
material only to the subjective purpose of the investigation. The dissent argues that
Agent Lanfersiek misrepresented his legal authority because the Secret Service
does not have the authority to enforce a state burglary offense, Dissenting Op. at
28–29, but that misrepresentation did not lead Austin to believe that Lanfersiek
could investigate without her consent or that Lanfersiek would not act upon
evidence of criminal activity. And Lanfersiek acted within the scope of his
authority to investigate credit-card fraud and was accompanied by an officer with
the authority to investigate both burglaries and fraud. Pretending to be a crime-
scene technician and to dust for fingerprints was perhaps silly and unnecessary, but
it was relatively insignificant.
After it considered the totality of the circumstances, the district court
correctly determined that Austin’s consent was voluntary. The factors other than
deceit all point in favor of voluntariness. Austin was not handcuffed or under arrest
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when she gave her consent. See Garcia, 890 F.2d at 360–62. She invited the
officers inside the home and volunteered video footage of the burglary. The
encounter was polite and cooperative, and the officers used no signs of force,
physical coercion, or threats. See United States v. Espinosa-Orlando, 704 F.2d 507,
513 (11th Cir. 1983). The officers did not inform Austin that she had the right to
refuse consent, but they were not required to do so. Schneckloth, 412 U.S. at 248–
49. And a warning is even less relevant in this context because it is easier to refuse
consent when the police are offering to help than when they initiate an adversarial
relationship. The district court found that the consent was “intelligently given.”
And “significantly,” Chemaly, 741 F.2d at 1352 (citation omitted), Austin believed
that no incriminating evidence would be found—or at least, nothing she and
Spivey had not prepared to explain away.
The “ruse” did not prevent Austin from making a voluntary decision. Austin
and Spivey informed the police of the burglaries and invited their interaction. The
officers did not invent a false report of a burglary, nor claim any authority that they
lacked. Agent Iwaskewycz testified that he and Lanfersiek never promised Austin
that “[w]e’re just here to investigate a burglary; anything else we see, we’re gonna
ignore.” Austin knew that she was interacting with criminal investigators who had
the authority to act upon evidence of illegal behavior. There is no evidence that
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Austin felt that she was required to help with the burglary investigation or that she
needed to consent to avoid her inevitable prosecution. From Austin’s perspective,
her ability to consent to the search of an area where she knew there was evidence
of illegal activity was not dependent on whether the officers provided no
explanation or a partial explanation of their intentions. “[M]otivated solely by the
desire” to retrieve her stolen property, Austin consented to the officers’ entry and
search “at h[er] own peril.” Cf. Perkins, 496 U.S. at 298.
And perhaps most significant of all, Austin and Spivey engaged in
intentional, strategic behavior, which strongly suggests voluntariness. Although
Austin and Spivey were victims of one crime and suspects of another, the district
court reasoned, “[t]hieves usually don’t report that the property that they stole has
been stolen.” The district court found that Austin and Spivey enlisted the officers’
assistance to recover their property. Austin “wanted to cooperate” because
“expensive shoes had been stolen,” and Spivey was “willing to risk exposure to
credit[-]card prosecution to get his property back.” Before allowing the officers
into their home, they hid the most damning piece of evidence in the oven. And
Austin and Spivey gave a rehearsed story to explain the device that remained
visible. This prior planning proves that Austin and Spivey understood that asking
for the officers’ assistance came with the risk that their own crimes would be
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discovered. Austin’s behavior does not evoke fear or good-faith reliance, but
instead suggests that she sought to gain the benefit of police assistance without
suffering potential costs. The more Austin behaved strategically, the more her
behavior looked like a voluntary, rational gamble, and less like an unwitting,
trusting beguilement. Although the plan to involve police to recover their stolen
goods may not have been the best one, voluntariness does not require that
criminals have perfect knowledge of every fact that might change their strategic
calculus. Nor does it require that “consent [be] in the[ir] best interest.” United
States v. Berry, 636 F.2d 1075, 1081 (5th Cir. Unit B 1981).
When we view the evidence in the light most favorable to the judgment,
Austin’s consent was not “granted only in submission to a claim of lawful
authority.” Schneckloth, 412 U.S. at 233 (citations omitted). We agree with the
district court that under the totality of the circumstances, “the government has
shown by clear and positive testimony that the consents were voluntary,
unequivocal, specific, intelligently given, and uncontaminated by duress or
coercion.”
Austin and Spivey make two additional arguments based on precedent, both
of which fail. First, they rely on the statement that “[i]ntimidation and deceit are
not the norms of voluntarism. In order for the response to be free, the stimulus
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must be devoid of mendacity.” Alexander, 390 F.2d at 110. But this statement is
dicta and arose in a materially different context. In Alexander, postal inspectors
illegally detained an employee suspected of mail theft. They then admittedly
“misle[d]” the defendant by telling him they were investigating mail theft,
particularly jewelry, when what they really sought were marked dollar bills they
had placed in his mail. Id. at 102–03, 110. We held that compliance with
“disingenuous questioning” by the police did not “purg[e] the taint of the illegal
arrest.” Id. at 110. Austin’s consent, in contrast, did not have to overcome any
previous taint. Second, Austin and Spivey rely on a decision that expressed
concern with “allow[ing] the state to secure by stratagem what the fourth
amendment requires a warrant to produce.” Graves v. Beto, 424 F.2d 524, 525 (5th
Cir. 1970). But this decision involved the scope of consent, not the voluntariness of
consent. See id. at 525 n.2. In Graves, the police requested a blood sample and the
suspect refused. Id. at 525. The suspect consented only after the police said the
sample would be used to determine his alcohol content, but the police nevertheless
ran a test to compare his blood type with blood sample from the scene of a rape.
Writing for our predecessor Court, Judge Wisdom interpreted the consent as
limited to the blood-alcohol test because individuals can place boundaries on their
consent. Id.
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Even if Austin and Spivey had framed their appeal as a question of the scope
of consent, Judge Wisdom’s approach in Graves cuts in favor of the government.
To the extent the officers lied, we would not “void the consent as to the purpose for
which it was given,” but instead “simply limit the state to the purposes
represented.” Id. at 525 n.2. We could attempt to limit Austin’s consent to the
burglary investigation, but unlike in Graves, the two police purposes do not align
with divisible searches. If the scope of consent is about physical space,
investigating the burglary and the credit-card fraud both involve looking in the
living room and master bedroom. Austin gave “unequivocal” and “specific”
consent to the physical presence of police in those spaces. The agents did not enter
additional parts of the home irrelevant to the burglary, secretly film, or run any
fraud-specific tests. Cf. Gouled v. United States, 255 U.S. 298, 309 (1921) (holding
it unconstitutional to secretly ransack an office and seize papers when allowed into
the home on the false representation that the officer was there for a social visit).
The incriminating evidence was in plain view.
If the scope of Austin’s consent were limited by police intent, then the
officers had two legitimate purposes for the search. Judge Wisdom distinguished
evidence acquired “in good faith for a legitimate purpose,” Graves, 424 F.2d at
525 n.1, as evidence that could be used for another purpose. And if the police had
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come to the home with the sole purpose of investigating the burglary, the district
court found that “it is highly likely that he would have seen most of the same
incriminating evidence in plain view.” After all, even Hunt, the burglar, was
suspicious.
Not all deception by law enforcement invalidates voluntary consent. Austin
and Spivey deride the “shocking” nature of the “misconduct” in this case, but we
are “not empowered to forbid law enforcement practices simply because [we]
consider[] them distasteful.” Florida v. Bostick, 501 U.S. 429, 439 (1991). The
district court did not clearly err in determining that the “ruse” did not coerce
Austin into giving her consent involuntarily.
Because the initial search was supported by Austin’s voluntary consent, it
did not violate the Fourth Amendment. And because the initial search was
constitutional, we do not reach any question about Spivey’s later consent and the
fruit of the poisonous tree. We affirm the denial of the motion to suppress.
V. CONCLUSION We AFFIRM the judgments of conviction and the sentences of Austin and
Spivey.
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MARTIN, Circuit Judge, dissenting:
The Majority describes this case as raising the question of whether
“deception by law enforcement” during the search of a home violates the Fourth
Amendment of the United States Constitution. Among other things, the Fourth
Amendment protects the “right of the people to be secure in their [] houses,” and
requires that warrants allowing a home to be searched, issue “upon probable cause,
supported by Oath or affirmation.” The two officers here had no warrant allowing
their entry into the home of Eric Spivey and Chenequa Austin. Instead, they had a
plan to get around the Fourth Amendment’s protections. They lied about their
legal authority. They lied about their real reason for being there. And they took
advantage of a public trust in law enforcement in order to search the Spivey/Austin
home without a warrant. When Ms. Austin learned the true purpose of the
officers’ presence in her home, she stopped cooperating immediately. Based on all
the circumstances of her case, it is clear to me that Ms. Austin’s permission for the
officers to enter her home was not voluntarily given.
This litigation could have easily been avoided. Instead of planning their
ruse, the officers could have gotten a warrant. We know that “[w]ith few
exceptions, the question whether a warrantless search of a home is reasonable and
hence constitutional must be answered no.” Kyllo v. United States, 533 U.S. 27,
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31, 121 S. Ct. 2036, 2042 (2001) (Scalia, J.). There is no exception that fits this
case. I am concerned that the Majority opinion blesses the deliberate
circumvention of constitutional protections, and in this way undermines the public
trust in police. I therefore dissent.
There is no dispute about the facts here. The two officers who conducted the
search, Special Agent Lanfersiek and Detective Iwaskewycz, both testified at a
suppression hearing, and told us what happened. I will add some detail taken from
their testimony, which is necessary to fully understand why this search was not
lawful.
The Majority opinion misses the fact that Agent Lanfersiek and Detective
Iwaskewycz deliberately planned how to circumvent the Fourth Amendment’s
general requirement that they get a warrant before searching someone’s home.
Agent Lanfersiek testified that instead of getting a warrant, he and about ten other
officers held a planning session during which they “made a decision to come up
with the methodology of employing the ruse.” They decided to pretend to
investigate burglaries that had already been solved, as a way to get consent to enter
the home and search for evidence of credit-card fraud. To avoid suspicion, they
also came up with the idea of Agent Lanfersiek dressing up as a crime-scene
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technician. Agent Lanfersiek is a Special Agent of the U.S. Secret Service, and in
that job had no authority to investigate a local burglary. Neither, apparently, did he
know how to dust for fingerprints. Nevertheless, this ploy, together with the
costume he wore, gave him cover. Wearing his costume, he went through the
Spivey/Austin home pretending to dust for fingerprints, asking for and receiving
permission from Ms. Austin to go into areas of the home she likely would not have
otherwise let him see. The officers hoped they would be able to see evidence of
credit-card fraud in plain view. And if they did, they planned on using the
evidence they had seen to get consent to search the rest of the home. In the event
this plan did not work, the officers had an assistant state attorney on standby ready
to get a search warrant.
There is also more to the order of events here than the Majority opinion
includes. The officers testified that when they arrived at Ms. Austin’s home, she
was “genuinely excited,” “relieved,” and “happy” they were there to follow-up on
the reported burglaries of her home. Agent Lanfersiek asked Ms. Austin to show
him where the burglar entered the house so he could dust for fingerprints. She did.
After pretending to dust the door, he asked Ms. Austin where else the burglar had
gone. She said the bedroom, and Agent Lanfersiek asked to go there. Ms. Austin
took him into the bedroom, where Agent Lanfersiek asked if she would open the
23 Case: 15-15023 Date Filed: 06/28/2017 Page: 24 of 35
drawers to the bedside tables. Again, Ms. Austin complied. Agent Lanfersiek
asked where else the burglar had gone. Ms. Austin replied the bathroom and closet
areas, so he went to see those as well.
Agent Lanfersiek saw evidence of credit-card fraud in plain view in these
different areas. He and Det. Iwaskewycz then decided to separate Mr. Spivey and
Ms. Austin and talk to them individually. This is where the ruse ended. Det.
Iwaskewycz went outside with Ms. Austin and explained to her that he was really
there to investigate credit-card fraud. He asked about the evidence in the bedroom.
Ms. Austin gave some unconvincing answers. As a result, Det. Iwaskewycz
decided Ms. Austin was not likely to cooperate and provide the consent to the full
search he and Agent Lanfersiek wanted. So he called a colleague to run a check on
Ms. Austin. He discovered there was an unrelated outstanding warrant for Ms.
Austin’s arrest. Ms. Austin was promptly arrested.
II. STANDARD OF REVIEW
Although voluntariness is usually a question of fact, the parties do not
dispute the facts and both rely solely on the testimony of the government’s
witnesses. In a case like this, our review is de novo. United States v. Valdez, 931
F.2d 1448, 1451–52 (11th Cir. 1991); United States v. Garcia, 890 F.2d 355, 359–
60 (11th Cir. 1989).
24 Case: 15-15023 Date Filed: 06/28/2017 Page: 25 of 35
III. DISCUSSION
The Fourth Amendment generally prohibits officers from searching a
person’s home without a warrant. Payton v. New York, 445 U.S. 573, 586, 100 S.
Ct. 1371, 1380 (1980) (“[S]earches and seizures inside a home without a warrant
are presumptively unreasonable.”). One exception to the warrant requirement is
where the person voluntarily gives consent for the officers to search. Illinois v.
Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 2797 (1990). The question before
us here is whether Ms. Austin’s consent for the officers to search her home was
voluntary.
A. VOLUNTARINESS PRECEDENT
Consent is voluntary “if it is the product of an ‘essentially free and
unconstrained choice.’” United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir.
2001) (quoting Schneckloth, 412 U.S. at 225, 93 S. Ct. at 2047). We evaluate
whether a consensual search was voluntary by examining the “totality of the
circumstances” in each case. United States v. Yeary, 740 F.3d 569, 581 (11th Cir.
2014). It is the government’s burden to prove both that consent was given and that
it was “given freely and voluntarily.” Id. (quotation omitted).
In analyzing the totality of the circumstances, there is no one factor that
controls. Schneckloth, 412 U.S. at 226, 93 S. Ct. at 2047. Instead this Court
25 Case: 15-15023 Date Filed: 06/28/2017 Page: 26 of 35
recognizes several important factors to consider “including the presence of
coercive police procedures, the extent of the defendant’s cooperation with the
officer, the defendant’s awareness of his right to refuse consent, the defendant’s
education and intelligence, and the defendant’s belief that no incriminating
evidence will be found.” Purcell, 236 F.3d at 1281.
This Court has also said that consent searches are almost always
unreasonable when government agents induce consent by “deceit, trickery or
misrepresentation.” United States v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977).1 In
Tweel, for example, the defendant was audited by the IRS. Id. at 298. The
defendant wanted to know whether the IRS interest in him was related to a civil or
a criminal case, so his accountant asked whether a special agent was involved. See
id. The IRS truthfully replied that no special agent was involved, but purposefully
did not say that the inquiry was being made on behalf of the Organized Crime and
Racketeering Section of the Department of Justice. Id. Because of that deliberate
omission, this Court said the “investigation was a sneaky deliberate deception” that
rendered the defendant’s consent involuntary. Id. at 299. 2
1 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at 1209. 2 The Majority says this Court has “never applied [Tweel] outside the administrative context, let alone to a situation in which the suspect is aware of the criminal nature of the 26 Case: 15-15023 Date Filed: 06/28/2017 Page: 27 of 35
Eleventh Circuit precedent about consenting to a search emphasizes that the
use of deception to get consent violates the Fourth Amendment because it is an
“abuse” of the public’s trust in law enforcement. See id.; see also SEC v. ESM
Gov’t Sec., Inc., 645 F.2d 310, 316 (5th Cir. Unit B May 18, 1981). For example,
in ESM, this Court said:
We believe that a private person has the right to expect that the
government, when acting in its own name, will behave honorably.
When a government agent presents himself to a private individual,
and seeks that individual’s cooperation based on his status as a
government agent, the individual should be able to rely on the agent’s
representations. We think it clearly improper for a government agent
to gain access to [evidence] which would otherwise be unavailable to
him by invoking the private individual’s trust in his government, only
to betray that trust. When that government agency then invokes the
power of a court to gather the fruits of its deception, we hold that
there is an abuse of process.
investigation.” Maj. Op. at 9 (emphasis added). But three of my colleagues on this Court did just that in a recent unpublished decision. See United States v. Jaimez, 571 F. App’x 935, 937 (11th Cir. 2014) (per curiam) (unpublished) (citing Tweel for the proposition that “[w]e have found that consent ‘induced by deceit, trickery, or misrepresentation’ can render consent involuntary” in the context of a consent search of a defendant’s home for contraband). 27 Case: 15-15023 Date Filed: 06/28/2017 Page: 28 of 35
Id. Thus, Eleventh Circuit precedent requires us to consider whether the public
trust was improperly employed by the officers.
B. THE TOTALITY OF THE CIRCUMSTANCES
Considering the totality of the circumstances under the standards set by our
precedent, Ms. Austin’s consent was not voluntary. The officers used deceit,
trickery, and misrepresentation to hide the true nature and purpose of their
investigation as well as the authority they had to investigate the burglaries. This
deception caused Ms. Austin to allow the officers into her home. And when the
officers revealed the ruse to Ms. Austin, she immediately stopped cooperating.
First, the officers got consent from Ms. Austin to enter her home only
through the deliberate misrepresentation of their authority. As the Majority rightly
recognizes, “deception invalidates consent when police claim authority they lack.”
Maj. Op. at 8. Agent Lanfersiek testified that as a federal Secret Service agent, he
was not at the Spivey/Austin home about a burglary. And the government
conceded at oral argument that Agent Lanfersiek, as a federal agent, had no
authority to investigate a local burglary. Knowing that his presence might alert
Ms. Austin to the true purpose of his investigation, Agent Lanfersiek hid his real
identity. He pretended to be a member of the Lauderhill Police Department and
played the part of a crime-scene technician because that role was best suited to
28 Case: 15-15023 Date Filed: 06/28/2017 Page: 29 of 35
convince Ms. Austin to allow him into parts of her home she would otherwise have
refused. Agent Lanfersiek’s misrepresentations allowed him to ask Ms. Austin—
without raising suspicion—to show him around her home, let him into her
bedroom, and even open drawers and look inside her closet. In other words, Agent
Lanfersiek lied about his law enforcement authority in order to gain warrantless
access to the most private areas of Ms. Austin’s home. See Tweel, 550 F.2d at
299; see also ESM, 645 F.2d at 316 (“When a government agent presents himself
to a private individual, and seeks that individual’s cooperation based on his status
as a government agent, the individual should be able to rely on the agent’s
representations.”). Had Ms. Austin known Agent Lanfersiek’s true identity, this
record shows she would not have let him into her home. 3
Neither was Det. Iwaskewycz there to investigate the burglaries. Although
he was employed by the local police department, his duties did not include
investigating burglaries. Instead, he was assigned to the federally-funded South
Florida Organized Fraud Task Force. The task force paired Secret Service agents
with local detectives to combat financial crimes in the Southern District of Florida.
3 The Majority says that the burglaries were a legitimate reason for the officers to be at Ms. Austin’s home. Maj. Op. at 11–12. But even setting aside the legal authority issues already discussed, the fact that other officers might have been able to investigate the burglaries through a warrantless consent search does not make the consent here voluntary. See Kyllo, 533 U.S. at 35 n.2, 121 S. Ct. at 2043 n.2 (“The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment.”). 29 Case: 15-15023 Date Filed: 06/28/2017 Page: 30 of 35
Det. Iwaskewycz had been assigned to this task force for several years. And he
testified that although the case of the burglary of the Spivey/Austin home was still
technically an open file, he knew the burglar had been caught and confessed to
burglarizing the Spivey/Austin home. He also testified that the case had been
officially closed by the neighboring police department that caught the burglar.
Thus, even aside from the fact that Det. Iwaskewycz’s job did not include
investigating burglaries, he would not have been at the Spivey/Austin home for
that reason anyway. The burglary was already solved. This record shows he lied
about why he was at the home and about who Agent Lanfersiek was. See ESM,
645 F.2d at 316.
Second, the officers methodically planned their deception. Well in advance
of the search, Agent Lanfersiek convened a team of about ten law enforcement
officers to make a plan which would circumvent the Fourth Amendment’s warrant
requirement. This fact also supports the conclusion that Ms. Austin’s consent was
not voluntary. The Supreme Court has told us to be wary of police planning
around constitutional protections. See Missouri v. Seibert, 542 U.S. 600, 617, 124
S. Ct. 2601, 2613 (2004) (holding that “[s]trategists dedicated to draining the
substance out of” constitutional protections cannot accomplish by planning around
these protections because it “effectively threatens to thwart [their] purpose”). The
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Eleventh Circuit has also adhered to this principle. We have refused to “allow the
state to secure by stratagem what the fourth amendment requires a warrant to
produce.” Graves v. Beto, 424 F.2d 524, 525 (5th Cir. 1970).
Third, and importantly, this record demonstrates that Ms. Austin refused to
cooperate with law enforcement once the officers revealed their true purpose.4
This shows she would not have allowed the officers into her home had they not
lied about their authority and their reason for wanting to get into her house. Before
the officers told her they were there to investigate credit-card fraud, they testified
Ms. Austin was “genuinely excited,” “relieved,” and “happy” they were there to
follow-up on the burglaries—crimes of which Ms. Austin was the victim. Once
the officers’ true purpose was revealed, her demeanor changed so much that Agent
Lanfersiek had a colleague run a check for any outstanding arrest warrants. After
finding one, he arrested Ms. Austin and had her taken to the police station. As this
Court has put it, deceit is not one of “the norms of voluntarism.” Alexander v.
4 The Majority says the pretext for investigating the burglary is not relevant. Maj. Op. at 13 (citing Whren v. United States, 517 U.S. 806, 814, 116 S. Ct. 1769, 1775 (1996)). But Whren was about inquiries into whether probable cause exists, which are made from a law enforcement officer’s perspective. In contrast, when we decide whether Ms. Austin’s consent was voluntary, we must consider Ms. Austin’s subjective perspective. The Majority acknowledges this. See Maj. Op. at 12; Schneckloth, 412 U.S. at 229, 93 S. Ct. at 2049 (noting that “[t]he very object of the inquiry” in determining voluntariness is “the nature of a person’s subjective understanding”). The pretext of investigating a burglary was not a “silent” motivation as the Majority says, but was instead the express reason given to Ms. Austin that led her to let the officers into her home. Maj. Op. at 12. 31 Case: 15-15023 Date Filed: 06/28/2017 Page: 32 of 35
United States, 390 F.2d 101, 110 (5th Cir. 1968). “In order for the response to be
free, the stimulus must be devoid of mendacity.” Id. Ms. Austin’s response, then,
could not have been free, because it was entirely a product of the officers’
untruthfulness.5
Given these facts, I expected this panel to suppress the search of the
Spivey/Austin home. It is true, as the Majority says, that not all police deception is
unconstitutional.6 Maj. Op. at 10–11. But the police deception here is
unconstitutional because it meant that Ms. Austin’s consent was not knowing and
voluntary. My read of the Majority opinion is that it tries to distinguish the police
deception here from what this Court’s precedent says is unconstitutional conduct,
mainly by relying on two cases: United States v. Wuagneux, 683 F.2d 1343 (11th
Cir. 1982), and United States v. Prudden, 424 F.2d 1021 (5th Cir. 1970). Maj. Op.
at 11–14. Although the Majority is again correct that voluntary consent can carry
with it the risk that officers may discover evidence of criminal behavior, see
5 These circumstances show that, contrary to the Majority’s assertion, Agent Lanfersiek’s position was material to Ms. Austin’s consent. See Maj. Op. at 13–14. His deception and misrepresentation was not just “perhaps silly,” as the Majority describes it. Id. He lied about his true legal authority so that the ruse could succeed. 6 The Majority provides undercover operations as an example. Maj. Op. at 10–11. This was not an undercover operation. Indeed, we have specifically distinguished undercover operations from the type of deceit used here. See United States v. Centennial Builders, Inc., 747 F.2d 678, 682–83 (11th Cir. 1984) (distinguishing undercover investigations from consent to search “obtained through deception”). 32 Case: 15-15023 Date Filed: 06/28/2017 Page: 33 of 35
Wuagneux, 683 F.2d at 1348, we are still required to look to whether the initial
consent was voluntary. In Wuagneux, for example, the defendant knew he was
being investigated by the IRS. See id. The officers here, by contrast, told Ms.
Austin they were there to help her. As a victim of crime, her acceptance of the
officers’ offer of help made sense. But in fact, the officers relied on Ms. Austin’s
trust to manipulate her, and gave no indication that she was actually the one being
investigated. See Tweel, 550 F.2d at 299 (“[T]he agent’s failure to apprise the
[defendant] of the . . . nature of this investigation was a sneaky deliberate
deception . . . .); ESM, 645 F.2d at 316 (“We think it clearly improper for a
government agent to gain access to [evidence] which would otherwise be
unavailable to him by invoking the private individual’s trust in his government,
only to betray that trust.”).7
The Majority also points to Prudden to say that not all deception makes a
search unreasonable. Maj. Op. at 11. But Prudden only shows how far the officers
in this case went beyond the line of what’s constitutional. In Prudden, the
7 The Majority says that a warning of the right to refuse consent is less relevant in this context “because it is easier to refuse consent when the police are offering to help than when [the police] initiate an adversarial relationship.” Maj. Op. at 15. The Majority cites no legal authority for this proposition, and in any event, the government had the burden of proving the opposite in this case—that had Ms. Austin been aware of the adversarial nature of the investigation she would still have freely given her consent. This record shows she would not have. 33 Case: 15-15023 Date Filed: 06/28/2017 Page: 34 of 35
government agent “in no way concealed his true identity.” 424 F.2d at 1032. We
simply have a different case here.
IV. CONCLUSION
“It is axiomatic that the physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed.” Welch v. Wisconsin,
466 U.S. 740, 748, 104 S. Ct. 2091, 2097 (1984) (quotation omitted). That is why
we presume warrantless searches of the home are unreasonable. Kentucky v. King,
563 U.S. 452, 459, 131 S. Ct. 1849, 1856 (2011) (“It is a basic principle of Fourth
Amendment law, we have often said, that searches and seizures inside a home
without a warrant are presumptively unreasonable.” (quotation omitted)). This is
also why the Supreme Court has long incentivized law enforcement to get a
warrant, rather than resort to warrantless entries. See, e.g., Ornelas v. United
States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663 (1996).
At oral argument, the government was asked why it did not simply get a
warrant, rather than using the ruse to get into the house. The government did not
say it lacked probable cause. 8 Neither did it say it would have been too
8 The government also said at oral argument that by Ms. Austin and Mr. Spivey reporting the burglaries, they had “conscript[ed] the police to be their private collection agency” and “taken a calculated gamble.” To the extent the government implies it, I reject the idea that by reporting a crime a person welcomes the warrantless search of her home for other illegal activity. 34 Case: 15-15023 Date Filed: 06/28/2017 Page: 35 of 35
burdensome. Indeed, this record reflects that the officers had an assistant state
attorney on standby in case their ruse did not succeed. What the government said
was that there was “no requirement” to get a warrant.
The Majority opinion tells police that what happened here is not a problem.
In effect, it teaches police they don’t need to get a warrant so long as they can pre-
plan a convincing enough ruse. This is true even if, as here, that ruse includes
skirting the limits of the officer’s legal authority to investigate only certain crimes.
In doing so, I fear the Majority opinion undermines the public’s trust in the police
as an institution together with the central protections of the Fourth Amendment.
When I read the record in Ms. Austin’s case, I don’t believe this is the
“reasonable” conduct our Founders had in mind when drafting the Fourth
Amendment. I therefore dissent.