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United States v. Spivey

United States Court of Appeals, Eleventh Circuit

June 28, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ERIC JERMAINE SPIVEY, CHENEQUA AUSTIN, Defendants-Appellants.

         Appeals from the United States District Court for the Southern District of Florida D.C. Docket No. 0:15-cr-60082-WPD-2

          Before WILLIAM PRYOR, MARTIN, and BOGGS, [*] Circuit Judges.

          WILLIAM PRYOR, Circuit Judge.

         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 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.

         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.

         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 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 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.

         "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). 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 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., 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 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 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 ...


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