from the United States District Court for the Southern
District of Florida D.C. Docket No. 0:15-cr-60082-WPD-2
WILLIAM PRYOR, MARTIN, and BOGGS, [*] Circuit Judges.
WILLIAM PRYOR, Circuit Judge.
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 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.
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."
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.
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.
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
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 the consents were voluntary, unequivocal,
specific, intelligently given, and uncontaminated by duress
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.
STANDARD OF REVIEW
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 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
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
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).
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). 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?").
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
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
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.,
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.
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
Austin was the target of the investigation is worse than
misrepresentations about whether an investigation is civil or
criminal. We disagree.
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
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 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.
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 ...