Petition for Writ of Certiorari — Eric Jermaine Spivey and Chenequa Austin, Petitioners v. United States

Supreme Court briefDec 11, 2017

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No. ____

IN THE

Supreme Court of the United States

______________

CHENEQUA AUSTIN,

ERIC JERMAINE SPIVEY,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

______________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

______________

PETITION FOR A WRIT OF CERTIORARI

______________

MICHAEL G. SMITH

Litigation Building

633 South Andrews Ave. , Suite 500

Ft. Lauderdale, FL 33301

(954) 761-7201

Counsel for Petitioner Spivey

MICHAEL CARUSO

FEDERAL PUBLIC DEFENDER

ANDREW L. ADLER

Counsel of Record

ASS’T FED. PUBLIC DEFENDER

150 W. Flagler St., Suite 1500

Miami, FL 33130-1555

(305) 536-5900

Andrew_Adler@fd.org

Counsel for Petitioner Austin

December 11, 2017

QUESTION PRESENTED

In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), this Court held that

consent must be voluntary for it to validate an otherwise unreasonable warrantless

search. The test for voluntariness is whether the consent is “the product of an

essentially free and unconstrained choice,” or instead whether the individual’s “will

has been overborne and his capacity for self-determination critically impaired.” Id.

at 225 (citation omitted).

The inquiry is a subjective one based on “all the

circumstances.” Id. at 227, 229–30, 249.

In this case, two law-enforcement officers employed a ruse in order to induce

a homeowner to consent to a search of her master bedroom.

The officers

misrepresented their investigatory purpose: they told the homeowner that they

sought to assist her as the victim of burglaries that she had reported, when in

reality they sought to search her home for contraband.

A divided panel of the

Eleventh Circuit held that her consent was voluntary, reasoning that the officers’

subjective investigatory purpose was categorically irrelevant to the legal analysis.

The question presented is:

When the police misrepresent the purpose of their investigation, may courts

consider that deception as one circumstance in assessing the voluntariness of the

resulting consent, or is the officers’ subjective purpose irrelevant as a matter of law?

PARTIES TO THE PROCEEDINGS

The caption contains the names of all of the parties to the proceedings.

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDINGS ............................................................................ ii

TABLE OF AUTHORITIES .......................................................................................... v

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL PROVISION INVOLVED ........................................................... 1

INTRODUCTION .......................................................................................................... 2

STATEMENT OF THE CASE ....................................................................................... 4

A. THE UNDISPUTED FACTS: OFFICERS CONCOCT A RUSE INDUCING AUSTIN TO

CONSENT TO A SEARCH OF HER MASTER BEDROOM ............................................ 4

B. THE DISTRICT COURT FINDS AS A FACTUAL MATTER THAT THE OFFICERS

MISREPRESENTED THEIR INVESTIGATORY PURPOSE ........................................... 9

C. THE ELEVENTH CIRCUIT HOLDS AS A LEGAL MATTER THAT THE OFFICERS’

SUBJECTIVE PURPOSE IS IRRELEVANT TO THE VOLUNTARINESS OF CONSENT .. 10

REASONS FOR GRANTING THE PETITION .......................................................... 13

THE DECISION BELOW CONFLICTS WITH COUNTLESS FEDERAL AND STATE

APPELLATE DECISIONS ANALYZING THE VOLUNTARINESS OF CONSENT ........... 13

II. THE QUESTION PRESENTED IS UNSETTLED, RECURRING, AND IMPORTANT ...... 23

III. THIS IS AN IDEAL VEHICLE TO DECIDE THE QUESTION PRESENTED .................. 29

IV. THE DECISION BELOW IS WRONG ..................................................................... 32

CONCLUSION............................................................................................................. 37

iii

TABLE OF APPENDICES

Appendix A: Opinion of the U.S. Court of Appeals for the

Eleventh Circuit (June 28, 2017) ........................................................... 1a

Appendix B: Order of the U.S. Court of Appeals for the

Eleventh Circuit Denying Rehearing En Banc (Sept. 13, 2017) ........ 36a

Appendix C: Order of the U.S. District Court for the

Southern District of Florida (Aug. 12, 2015) ....................................... 38a

Appendix D: Transcript of the Hearing on

Petitioners’ Motion to Suppress, Volume I (Aug. 7, 2015) .................. 45a

Appendix E: Transcript of the Hearing on

Petitioners’ Motion to Suppress, Volume II (Aug. 10, 2015) ............ 160a

TABLE OF AUTHORITIES

CASES

Alexander v. United States,

390 F.2d 101 (5th Cir. 1968) .................................................................................... 33

Birchfield v. North Dakota,

579 U.S. __, 136 S. Ct. 2160 (2016) .......................................................................... 25

Bumper v. North Carolina,

391 U.S. 543 (1968) .................................................................................................. 36

Byrd v. United States,

__ S. Ct. __, 2017 WL 2119343 ................................................................................. 24

Code v. State,

214 S.E.2d 873 (Ga. 1975) ........................................................................................ 22

Collins v. Virginia,

__ S. Ct. __, 2017 WL 73634 ..................................................................................... 24

Commonwealth v. Slaton,

608 A.2d 5 (Pa. 1992).......................................................................................... 16, 17

Coolidge v. New Hampshire,

403 U.S. 443 (1971) .................................................................................................. 27

Daniel v. State,

597 S.E.2d 116 (Ga. 2004) ........................................................................................ 22

District of Columbia v. Wesby,

137 S. Ct. 826 (2017) ................................................................................................ 25

Fernandez v. California,

571 U.S. __, 134 S. Ct. 1126 (2014) .......................................................................... 24

Florida v. Jardines,

569 U.S. 1 (2013) ................................................................................................ 25, 26

Franks v. Delaware,

438 U.S. 154 (1978) .................................................................................................. 36

Georgia v. Randolph,

547 U.S. 103 (2006) ............................................................................................ 24, 28

Heien v. North Carolina,

574 U. S. __, 135 S. Ct. 530, 539 (2014) ................................................................... 11

Hoffa v. United States,

385 U.S. 293 (1966) .................................................................................................. 34

Krause v. Commonwealth,

206 S.W.3d 922 (Ky. 2006) ....................................................................................... 16

Kyllo v. United States,

533 U.S. 27 (2001) .................................................................................................... 25

McCall v. People,

623 P.2d 397 (Col. 1981) ........................................................................................... 17

Michigan v. Chesternut,

486 U.S. 567 (1988) .................................................................................................. 36

Ohio v. Robinette,

519 U.S. 33 (1996) .................................................................................................... 34

Payton v. New York,

445 U.S. 573 (1980) .................................................................................................. 25

People v. Daugherty,

514 N.E.2d 228 (Ill. Ct. App. 1987) .......................................................................... 19

People v. Davis,

187 P.3d 562 (Col. 2008) ........................................................................................... 17

Redmond v. State,

73 A.3d 385 (Md. Ct. Spec. App. 2013) .............................................................. 18, 19

Salmeron v. State,

632 S.E.2d 645 (Ga. 2006) ........................................................................................ 22

Schneckloth v. Bustamonte,

412 U.S. 218 (1973) .......................................................................................... passim

SEC v. ESM Govn’t Sec., Inc.,

645 F.2d 310 (5th Cir. 1981) .................................................................................... 28

State v. Bailey,

417 A.2d 915 (R.I. 1980) ..................................................................................... 17, 18

State v. Head,

964 P.2d 1187 (Wash. 1998) ..................................................................................... 19

State v. McCrorey,

851 P.2d 1234 (Wash. Ct. App. 1993) ...................................................................... 19

State v. Schweich,

414 N.W.2d 227 (Minn. Ct. App. 1987) .................................................................... 19

United States v. Bosse,

898 F.2d 113 (9th Cir. 1990) .................................................................................... 14

United States v. Briley,

726 F.2d 1301 (8th Cir. 1984) .................................................................................. 20

United States v. Carter,

884 F.2d 368 (8th Cir. 1989) .................................................................................... 20

United States v. Davis,

749 F.2d 292 (5th Cir. 1984) .................................................................................... 21

United States v. Drayton,

536 U.S. 194 (2002) ................................................................................ 24, 28, 33, 34

United States v. Griffin,

530 F.2d 739 (7th Cir. 1976) ........................................................................ 20, 21, 33

vii

United States v. Hardin,

539 F.3d 404 (6th Cir. 2008) .............................................................................. 15, 16

United States v. Harrison,

639 F.3d 1273 (10th Cir. 2011) ................................................................................ 15

United States v. Little,

753 F.2d 1420 (9th Cir 1984) ................................................................................... 15

United States v. Mendenhall,

446 U.S. 544 (1980) .................................................................................................. 34

United States v. Parson,

599 F.Supp.2d 592 (W.D. Pa. 2009) ......................................................................... 28

United States v. Phillips,

497 F.2d 1131 (9th Cir. 1974) .................................................................................. 15

United States v. Tweel,

550 F.2d 297 (5th Cir. 1977) .................................................................................... 10

United States v. Watson,

423 U.S. 411 (1976) .................................................................................................. 34

United States v. Watzman,

486 F.3d 1004 (7th Cir. 2007) .................................................................................. 21

Varriale v. State,

119 A.3d 824 (Md. 2015)........................................................................................... 19

Vizbaras v. Prieber,

761 F.2d 1013 (3d Cir. 1985) .................................................................................... 20

Welch v. State,

229 S.E.2d 390 (Ga. 1976) ........................................................................................ 22

Welch v. Wisconsin,

466 U.S. 740 (1984) .................................................................................................. 25

viii

Whren v. United States,

517 U.S. 806 (1996) ................................................................................ 10, 11, 31, 35

Wyche v. State,

987 So.2d 23 (Fla. 2008) ............................................................................... 21, 22, 24

STATUTES

28 U.S.C. § 1254(1) ........................................................................................................ 1

Fla. Stat. §§ 817.57–685 .............................................................................................. 23

OTHER AUTHORITIES

Alafair S. Burke,

Consent Searches and Fourth Amendment Reasonableness,

67 Fla. L. Rev. 509 (2015) ........................................................................................ 23

Fed. Bureau of Investigation,

Uniform Crime Report, 2016 Crime Clock Statistics.............................................. 27

Wayne R. LaFave, et al.,

2 Criminal Procedure § 3.10(c) (3d ed. 2007) .......................................................... 15

Wayne R. LaFave,

4 Search & Seizure § 8.2 (5th ed. 2016) ............................................................. 23, 24

Christopher Slobogin,

Deceit, Pretext, and Trickery: Investigative Lies by the Police,

76 Or. L. Rev. 775 (1997).......................................................................................... 24

Rebecca Strauss,

Note, We Can Do This the Easy Way or the Hard Way: The Use of Deceit to Induce

Consent Searches,

100 Mich. L. Rev. 868 (2002) .................................................................................... 24

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully seek a writ of certiorari to review a decision of the

United States Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW

The Eleventh Circuit’s divided opinion is published at 861 F.3d 1207 and is

reproduced as Appendix A. App. 1a. The district court’s order denying the motion

to suppress is unreported but reproduced as Appendix C. App. 38a.

JURISDICTION

The court of appeals denied a petition for rehearing en banc on September 13,

2017. The order denying rehearing is reproduced as Appendix B. App. 36a. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States Constitution provides: “The

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, supported by oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.”

INTRODUCTION

Two law-enforcement officers knocked on Petitioners’ front door and asked for

consent to search the home.

The officers’ stated purpose was to follow up on

burglaries that Petitioners had recently reported. Petitioners breathed easy: the

police were there to help them as victims of a crime. Naturally, they consented.

But there was a twist: unbeknownst to Petitioners, the officers’ stated purpose was

actually a pretext. Their real purpose was to look for contraband in the bedroom.

They were not there to help Petitioners; they were there to bust them. But unaware

of the officers’ true investigatory purpose, Petitioners unwittingly consented.

In a divided opinion, the Eleventh Circuit concluded that this undisputed

police deception did not vitiate the voluntariness of the consent that it deliberately

induced. To reach that conclusion, the court of appeals remarkably proclaimed that

“[t]he officers’ subjective purpose in undertaking their investigation does not affect

the voluntariness” of consent.

App. 13a.

That’s right: “[w]hether officers

deliberately lie[ ] does not matter.” App. 12a (citation omitted). Because the ruse

employed was wholly “irrelevant” to the voluntariness inquiry, id., it was as if the

police deception never happened at all.

That legal rule is unprecedented. No other appellate court, state or federal,

has reasoned that police deception of their investigatory purpose is irrelevant to the

voluntariness inquiry under Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Quite

the contrary, courts have uniformly considered such deception to be a relevant

circumstance, often finding it (or its absence) to be dispositive. The anomalous

decision below shatters that agreement and defies the totality-of-the-circumstances

analysis mandated by Schneckloth.

Federal courts in Florida, Georgia, and

Alabama are now categorically prohibited from even considering such deception as a

relevant factor in the analysis. Meanwhile, every other court will continue to deem

it salient, if not dispositive. And for good reason: deciding whether to invite officers

into one’s home will almost always depend on their stated purpose for entering.

This lack of uniformity is untenable. The voluntariness of consent cannot

hinge on the jurisdiction in which it is given, or on whether the search results in a

federal as opposed to a state prosecution. The decision below not only creates such

disparity—including within both Florida and Georgia, the third and eighth most

populous states—but it has dangerous implications for police behavior and society.

By declaring deception of purpose irrelevant to voluntariness, it encourages the

police to affirmatively lie about their investigations in order to circumvent the

warrant requirement—even where, as here, they seek to rummage through a

bedroom. “In effect, it teaches police they don’t need to get a warrant so long as

they can pre-plan a convincing enough ruse.” App. 35a (Martin, J., dissenting).

When the police knock on the front door and represent that they are there to

fulfill their sworn duty to protect and serve, society trains the homeowner to trust

that assurance. Officers in the Eleventh Circuit can now betray that trust at will,

even when the homeowner is innocent of wrongdoing and simply reports a burglary.

Constrained only by their imagination, they can beguile their way into the home

with Fourth Amendment impunity. The Court’s review is urgently needed.

STATEMENT OF THE CASE

Following the denial of a motion to suppress evidence and statements,

Petitioners Chenequa Austin and Eric Jermaine Spivey pled guilty to conspiracy to

commit access-device fraud and aggravated identity theft. Petitioner Spivey also

pled guilty to being a felon in possession of a firearm. Their guilty pleas were

expressly conditioned on the right to appeal the denial of their suppression motion.

App. 2a–3a, 6a. The parties agreed that this issue was case dispositive.

A. THE UNDISPUTED FACTS: OFFICERS CONCOCT A RUSE INDUCING AUSTIN TO

CONSENT TO A SEARCH OF HER MASTER BEDROOM

At the suppression hearing, the government called the two law-enforcement

officers as witnesses. Their testimony was remarkably consistent and candid. The

defense neither challenged the accuracy of their testimony nor called any witnesses

of its own. The relevant facts, set out below, were thus wholly undisputed.

A Burglar Turns Informant

On November 6, 2014, and again on November 23, 2014, a man burglarized

Austin’s home in Lauderhill, Florida.

On each occasion, an officer from the

Lauderhill Police Department was dispatched and prepared a report. In between

the two burglaries, Austin and Spivey, her live-in boyfriend, installed video

surveillance. On December 9, 2014, a detective from the neighboring Sunrise Police

Department arrested the burglar. The burglar confessed and cooperated, during

which time he informed the detective that there was a credit-card manufacturing

plant inside the master bedroom of Austin’s home.

A Federal Fraud Investigation is Born

That Sunrise Police detective relayed that information to Detective Alex

Iwaskewycz. Although employed by the Lauderhill Police Department, Iwaskewycz

had been assigned to the Secret Service’s Organized Fraud Task Force for almost

five years.

That federal Task Force exclusively investigated financial crimes,

including credit-card fraud.

App. 53a–54a, 85a, 210a, 213a–14a.

Iwaskewycz

relayed the information to U.S. Secret Service Agent Jason Lanfersiek, a fellow

Task Force member.

Iwaskewycz relayed the information to Lanfersiek for the

exclusive purpose of investigating the credit-card fraud, not for the purpose of

investigating the burglaries. Indeed, the Secret Service and the federal Task Force

lack jurisdiction over burglary offenses. App. 212a–18a, 230a.

The Officers Concoct a Ruse

To investigate the potential credit-card fraud, the two officers concocted a

ruse, which they unveiled at a “planning strategy” session shortly before it was

implemented on December 17, 2014. Present at that meeting were three police

officers and three to four Secret Service agents, including supervisors, all of whom

were working under the auspices of the Task Force. App. 55a, 95a–97a, 173a–74a.

Rather than seek a search warrant, the two officers planned to request

consent to enter the house by informing the residents that they were there to follow

up on the burglaries.

In truth, however, Lanfersiek’s exclusive purpose was to

investigate the credit-card fraud.

App. 56a, 62a, 112a, 118a.

And, while

Iwaskewycz claimed to be following up on the burglaries in part, he admitted that

his “primary function” and “primary assignment” was to investigate the credit-card

fraud. App. 188a, 195a, 239a, 255a. Although the Lauderhill Police Department’s

burglary case was technically still open, the detective from the neighboring

department had already arrested the burglar, obtained his written and oral

confession, and closed the case. App. 88a, 218a–19a.

In order to further conceal their true investigatory purpose, the officers also

planned to misrepresent Lanfersiek’s identity. Iwaskewycz would correctly identify

himself as a member of the Lauderhill Police Department (though make no mention

of his assignment to the Task Force). However, he would falsely identify Lanfersiek

as a forensic crime-scene technician who was there to dust for fingerprints that the

burglar may have left. In reality, Lanfersiek was a Secret Service Agent who had

no training or experience with fingerprints whatsoever. App. 97a–100a, 234a.

Moreover, in order to gain access to the master bedroom—where the burglar

had informed them that the credit-card plant was located—they planned to ask the

residents to re-trace the route that the burglar took, knowing that it would lead

them to the bedroom. If they observed contraband in plain view, they would then

ask for consent to search the residence. If that request failed, then they would clear

the residence and apply for a warrant based on what they had seen in plain view.

The ruse worked like a charm; they never sought a warrant.

Phase I: Austin Invites the Officers in to Investigate the Burglaries

After receiving the green light from their supervisors, the two officers drove

to Austin’s residence. Iwaskewycz had his badge and weapon exposed; and, because

Lanfersiek was posing as a crime-scene technician, he was disguised in a police

jacket and carrying a bag of forensic tools. Upon seeing them arrive, Austin told

Spivey that the police were there, and she hid a credit-card reader in the oven.

Identifying themselves as Lauderhill Police, the officers knocked on the door

and Austin opened it. As planned, Iwaskewycz identified himself as a Lauderhill

Police Detective, but misidentified Lanfersiek as a Lauderhill Police crime-scene

technician and fingerprint analyst. He explained that they were there to follow up

on the burglaries. Upon hearing the stated purpose for their visit, Austin became

“relieved,” “happy,” and “genuinely excited;” she invited them in the house; and she

offered to discuss the burglaries and show them video surveillance of the second

burglary. The conversation at the door lasted thirty seconds to a minute. App.

58a–59a, 100a–102a, 175a–77a, 232a, 240a–41a.

Phase II: Lanfersiek “Dusts” His Way Into the Master Bedroom

Once inside, the officers re-introduced themselves to Spivey and repeated

that their purpose was to follow up on the burglaries.

App. 142a, 183a, 257a.

Austin informed them that Spivey could help retrieve video surveillance. Spivey

and Iwaskewycz spent the next thirty to forty-five minutes attempting to do so.

Meanwhile, and according to plan, Lanfersiek asked Austin to re-trace the

route that the burglar took so that he could dust for fingerprints, beginning with

where the burglar entered the house. Austin led him to a back door adjacent to the

master bedroom, and Lanfersiek pulled out gloves and a brush and began dusting

for fingerprints. In reality, he was “faking” and “pretending” to dust. App. 97a–

98a, 104a–05a, 234a.

Lanfersiek asked Austin where the burglar went next, and

she informed him what he already knew: the burglar went into the master bedroom.

That was exactly where Lanfersiek had “wanted to go” all along. App. 106a.

Inside the bedroom, Lanfersiek observed stacks of credit cards and high-end

merchandise. Continuing the ruse, he asked Austin where the burglar went within

the bedroom, and she informed him that the burglar went through the two bedside

tables. Lanfersiek asked Austin to open the drawers to those tables, which she did,

and he observed additional credit cards, as well as prepaid value cards and receipts.

Remaining in character, Lanfersiek “dusted” the tables for fingerprints. He then

asked her where else the burglar went, and she directed him to the bathroom and

closet. When Lanfersiek approached the closet, he observed a credit-card embossing

machine on the shelf next to the closet door.

During this time, Austin believed that Lanfersiek was gathering evidence of

the burglaries, when he was really looking for contraband. App. 104a, 106a–07a.

Despite having confirmed the fraud, Lanfersiek did not reveal his true identity or

purpose. Instead, he informed Iwaskewycz about what he had seen. Iwaskewycz

asked Austin to take him in the master bedroom, and he observed the same items.

Phase III: The Officers End Their Ruse and Exploit It

The officers then separated Petitioners and ended the ruse. Bringing Austin

outside the house, Iwaskewycz informed her for the first time that his primary

responsibility was investigating fraud, and he asked her about the suspicious items

he had seen. Upon learning that he was investigating credit-card fraud, Austin

immediately became concerned and uncooperative. App. 240a, 243a–45a, 207a–09a,

263a.

After providing unsatisfactory answers to his questions, Iwaskewycz

determined that Austin was not going to cooperate at all with his fraud

investigation.

Iwaskewycz had by then learned that there was an unrelated,

outstanding warrant for Austin, and he arrested her. Austin was handcuffed and

removed from the premises.

Back inside, the officers revealed the ruse to Spivey, who had been

cooperative.

Iwaskewycz informed Spivey that he was actually investigating

credit-card fraud, Lanfersiek was in fact a Secret Service Agent, they had observed

suspicious items in the residence, and he had just arrested Austin. So confronted,

Spivey consented to a full-scale search of the home and electronic devices. A team

of agents searched the home for several hours and found additional contraband.

The officers later confronted Austin at the police station with the evidence found

during that search, inducing her to make incriminating statements.

B. THE DISTRICT COURT FINDS AS A FACTUAL MATTER THAT THE OFFICERS

MISREPRESENTED THEIR INVESTIGATORY PURPOSE

In accordance with the undisputed testimony, the district court found that

the officers misrepresented the purpose of their investigation.

Specifically, the

court found that “[t]he agents went to the home on the pretext of following up on

two burglaries.” App. 39a. While following up on the burglaries would have been a

“legitimate reason” for some officers to go there, it was “not the main or real reason”

for the two officers in this case. Id.

The court further found that the officers “lied when they represented

Lanfersieck to be a crime scene technician, who was interested in gathering

evidence of a burglary. The sought-after evidence to be gathered was not intended

to be used in a case where Spivey and Austin were victims, but it was used to be

used against them.” App 42a. It found that, to the extent there was “[a]ny motive

to obtain evidence of a burglary,” it “was clearly secondary and very minimal

compared to the interest in a credit card investigation.” Id. Yet Austin consented

only because she “wanted to cooperate in solving the burglaries.” App. 43a.

The court nonetheless concluded that her consent was voluntary. While it

acknowledged that the officers’ ruse was a relevant factor, it noted that “[n]ot all

pretextual actions by the police are illegal.”

States, 517 U.S. 806 (1996)).

App. 39a (citing Whren v. United

The court alternatively concluded that, even if

Austin’s initial consent was involuntary, Spivey’s subsequent consent and Austin’s

subsequent statements were not fruit of the poisonous tree. App. 40a, 43a–44a.

C. THE ELEVENTH CIRCUIT HOLDS AS A LEGAL MATTER THAT THE OFFICERS’

SUBJECTIVE PURPOSE IS IRRELEVANT TO THE VOLUNTARINESS OF CONSENT

On appeal, the parties vigorously contested whether the admitted police

deception vitiated the voluntariness of Austin’s consent. Petitioners argued that it

did, relying on what had been the “well established rule” of the former Fifth Circuit

(which binds the Eleventh) that consent induced by material misrepresentations is

not voluntary. United States v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977). Resisting

that rule, the government argued that her consent was voluntary. In so arguing,

the government asserted, inter alia, that “an officer’s subjective intent is totally

irrelevant to analyzing the voluntariness of a defendant’s consent.”

U.S. C.A.

Br. 38. A divided Eleventh Circuit agreed with the government.

As a general matter, the majority acknowledged that police deception can

sometimes be a relevant factor to voluntariness. See App. 8a–11a. But the court

then determined that it was not relevant where, as here, the deception derives from

an officer’s subjective motivations. In unequivocal language, it stated:

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. Whether officers

deliberately lied does not matter because the only relevant state of

mind for voluntariness is that of the suspect himself. . . . The officers’

subjective purpose in undertaking their investigation does not affect

the voluntariness of Austin’s consent.

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.

App. 12a–13a (citations, quotation marks, and brackets omitted). “From Austin’s

perspective, her ability to consent to the search . . . was not dependent on whether

the officers provided” an accurate “explanation of their intentions.” App. 16a.

By declaring the officers’ subjective investigatory purpose irrelevant, the

majority effectively removed the ruse from the analysis. It continued: “Stripped of

its subjective purposes, the officers’ ruse was a relatively minor deception that

created little, if any, coercion.” App. 13a. Absent the officers’ deception of their

investigatory purpose, all that remained of the ruse was the misidentification of

Agent Lanfersiek. But the court determined that “[h]is identity [wa]s material only

to the subjective purposes of the investigation,” which, in the court’s view, was

legally irrelevant. App. 14a (emphasis added). And “[t]he factors other than deceit

all point in favor of voluntariness.”

Id.

Because the majority found Austin’s

consent to be voluntary, it expressly declined to address any question about fruit of

the poisonous tree. App. 20a.

Judge Beverly Martin vigorously dissented.

She emphasized, and the

majority did not dispute, that: the facts were undisputed; the officers deliberately

“lied about their real reason for being there;” they deliberately lied about

Lanfersiek’s identity and authority in order to conceal their “true purpose;” and

“this record shows [Austin] would not have let [them] into her home” had she known

that purpose. App. 21a–24a, 28a–32a & n.5, 33a n.7. By pretending to help Austin

as a crime victim, the officers “took advantage of a public trust in law enforcement

in order to search the Spivey/Austin home without a warrant.” App. 21a, 33a.

Judge Martin rejected the majority’s assertion that the “pretext for

investigating the burglary is not relevant.”

App. 31a n.4.

She explained that

Whren was distinguishable, because it “was about inquiries into whether probable

cause exists, which are made from a law enforcement officer’s perspective,” while

voluntariness was about “Austin’s subjective understanding.”

Id.

And “[t]he

pretext of investigating a burglary” was highly relevant, because it was “the express

reason given to Ms. Austin that led her to let the officers into her home.” Id.

Judge Martin concluded by expressing grave concerns about the implications

of the majority opinion. In her view, it “blesses the deliberate circumvention of

constitutional protection, and in this way undermines the public trust in police.”

App. 22a.

“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. . . . 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.” App. 35a.

Petitioners filed a petition for rehearing en banc. Despite a request for en

banc poll, the full court denied the petition. App. 36a–37a.

REASONS FOR GRANTING THE PETITION

THE DECISION BELOW CONFLICTS WITH COUNTLESS FEDERAL AND STATE

APPELLATE DECISIONS ANALYZING THE VOLUNTARINESS OF CONSENT

In a passage destined for police bulletin boards, the decision below

explicitly announced the following rule: “The subjective motivation of the officers is

irrelevant” to the voluntariness of consent. App. 12a. Practically inviting police

deception, the court went so far to say this: “Whether the officers deliberately lie[ ]

does not matter because the only relevant state of mind for voluntariness is that of

the suspect himself.”

Id. (emphasis added; citations omitted).

In short: “The

officers’ subjective purpose in undertaking their investigation does not affect the

voluntariness of Austin’s consent.”

App. 13a.

Because an officer’s true

investigatory purpose is inherently subjective, no misrepresentations about it—no

matter how flagrant—could ever be legally relevant.

That reasoning is unprecedented.

No other appellate court has

adopted such a categorical ban on the consideration of such police deception. To the

contrary, innumerable federal and state court decisions over the four decades since

Schneckloth have uniformly recognized that such deception is a highly relevant

circumstance when assessing whether consent is voluntary.

Whether that

deception ultimately vitiates the voluntariness of consent will depend on the totality

of the circumstances. But, regardless of outcome, courts have always understood

that police deception of their investigatory purpose bears on that determination.

The Ninth Circuit has held that “[a] ruse entry when the suspect is

informed that the person seeking entry is a government agent but is misinformed as

to the purpose for which the agent seeks entry cannot be justified by consent.”

United States v. Bosse, 898 F.2d 113, 115 (9th Cir. 1990). In Bosse, a local firearms

official obtained consent to inspect the defendant’s home as a part of a pending

license application. An ATF agent accompanied that official, but deliberately failed

to disclose his identity or his true purpose of searching for incriminating items. Id.

at 114. In holding that this deception invalidated the consent, the court enforced

the “rule for th[at] Circuit clearly prohibiting deliberate misrepresentation of the

purpose of a government investigation.” Id. at 116; accord United States v. Little,

753 F.2d 1420, 1437–38 (9th Cir 1984); United States v. Phillips, 497 F.2d 1131,

1135 & n.4 (9th Cir. 1974) (“The occupants were led to believe that they were

admitting officers to investigate a burglary when, in fact, the officers and agents

were entered to arrest Phillips.”).

Similarly, the Tenth Circuit has found consent involuntary where officers

implied that a bomb was planted in the defendant’s apartment, when their real,

subjective purpose was to search for drugs. United States v. Harrison, 639 F.3d

1273 (10th Cir. 2011). The court made clear that “[w]hen government agents seek

an individual’s cooperation with a government investigation by misrepresenting the

nature of that investigation, this deception is appropriately considered as part of

the totality of circumstances in determining whether consent was gained by

coercion or duress.” Id. at 1278–79. In its view, “[n]ot all deceit and trickery is

improper, but ‘when the police misrepresentation of purpose is so extreme that it

deprives the individual of the ability to make a fair assessment of the need to

surrender his privacy . . . the consent should not be considered valid.’” Id. at 1280

(quoting 2 Wayne R. LaFave et al., Criminal Procedure § 3.10(c) (3d ed. 2007)).

The Sixth Circuit reached the same conclusion in United States v. Hardin,

539 F.3d 404 (6th Cir. 2008). There, the court found consent involuntary where an

apartment manager, acting as an agent for the government, claimed to be

investigating a water leak when the real, subjective purpose was to determine

whether the defendant was inside.

Id. at 407–08, 425–26.

The court offered

“numerous citations” to “illustrate the decidedly non-novel proposition that officers

may invalidate an individual’s consent through the use of certain ruses or trickery,”

referring

cases

involving

misrepresentation

the

officers’

subjective

investigatory purpose. Id. at 425 n.12.

Such deception has likewise played a key role in state court decisions finding

consent involuntary under Schneckloth. For example, in Krause v. Commonwealth,

206 S.W.3d 922 (Ky. 2006), an officer fabricated a story that a young girl had

reported being raped by the defendant in his home, and the officer asked to enter in

order to determine whether the girl’s account was accurate; the officer’s real

purpose, however, was to search for drugs. Id. at 923–24, 926. The defendant, of

course, “would have never consented to the search if [he] knew the trooper’s true

purpose.” Id. at 926. The court determined that “the deception employed . . . was so

unfair and unconscionable as to be coercive and thus, Appellant’s consent to a

search of his residence was constitutionally invalid.”

Id. at 927–28.

The court

emphasized that, in deceiving the defendant about his true purpose, the officer

“exploited a citizen’s desire to assist police in their official duties for the express

purpose of incriminating that citizen.” Id. at 927. That deception “crossed the line

of civilized notions of justice” and “vitiat[ed] the long established trust and accord

our society has placed with law enforcement.” Id.

In Commonwealth v. Slaton, 608 A.2d 5 (Pa. 1992), the court also found that

police deception of purpose vitiated the voluntariness of consent.

In that case,

officers truthfully went to the defendant’s pharmacy for the stated purpose of

investigating a suspect believed to be forging prescriptions. The officers obtained

the defendant’s consent to do so, but during the investigation discovered forged

prescriptions implicating the defendant. With that shifted investigatory focus, the

officers later returned to the pharmacy a second time, but did not inform the

defendant of their new investigatory purpose. Id. at 209–10. In finding the second

consent involuntary, the court emphasized that “the agents obtained entry to the

premises without any additional disclosure of purpose.” Id. at 217.

By permitting

the defendant to rely on the earlier representation, the agents “obtained appellee’s

consent through deception,” which “amount[ed] to implied coercion.” Id.

In McCall v. People, 623 P.2d 397 (Col. 1981), overruled on other grounds by

People v. Davis, 187 P.3d 562 (Col. 2008), the court found consent involuntary where

officers “deceived the defendant’s parents into believing that their purpose in being

there was to question the defendant as a witness,” when in reality their true,

subjective purpose was to question him as a suspect.

Id. at 403.

The court

concluded: “Where, as here, entry into the home is gained by a preconceived

deception as to purpose, consent in the constitutional sense is lacking.” Id. Again,

that this purpose derived from an officer’s subjective motivation was of no moment.

In State v. Bailey, 417 A.2d 915 (R.I. 1980), the court reasoned that “consent

to enter one’s home . . . cannot be deemed free or voluntary unless the person said to

consent is aware of the purpose for which the police seek to enter. The notion of a

free and voluntary consent necessarily implies that the person knows what it is he

is allowing the police to do.” Id. at 918. In that case, the officers came to the

defendant’s home for the purpose of “picking him” up on an investigation. When the

defendant asked what the investigation was about, the officers truthfully answered

that they did not know, and they offered to use the defendant’s telephone to find

out. Upon learning that the defendant was wanted in connection with a rape, they

arrested him. Id. at 917. The court concluded that the defendant’s consent was not

voluntary because he “allowed the police into his home for the purpose of using his

telephone.” Id. at 919. “Were we to find that the entry into defendant’s apartment

was consensual, we would be sanctioning a procedure whereby the police could

circumvent the warrant requirement for an arrest in the home by initially entering

the home for some innocuous reason and then seizing the person as soon as they

were admitted. We are unwilling to so compromise the sanctity of the home from

unreasonable government intrusion.” Id.

Likewise, in Redmond v. State, 73 A.3d 385 (Md. Ct. Spec. App. 2013), the

police “misrepresented” “that they were looking for a pedophile named ‘Leroy

Smalls,’ going so far as to display a photograph of the supposed suspect. In fact,

there was no such wanted pedophile, and no ‘Leroy Smalls.’ The real purpose the

police had for entering . . . was to search for the stolen cell phone.” Id. at 394. The

court concluded that the consent was involuntary, because it was “eroded and w[as]

directly induced by an affirmative misrepresentation by the police as to their

purpose for entering the house.” Id. at 397 (citations and brackets omitted). The

court emphasized that “the ruse was designed to make [the defendants] think they

were helping the police investigate the whereabouts of a dangerous pedophile,”

when their real purpose was to locate incriminating evidence.

Id. at 398.

See

Varriale v. State, 119 A.3d 824, 835 n.10 (Md. 2015) (approving Redmond’s holding).

In People v. Daugherty, 514 N.E.2d 228 (Ill. Ct. App. 1987), an officer went to

a home on the pretext of following up on a theft that had previously been reported,

but the “real reason” for going “was to investigate if marijuana was present in the

home.”

Id. at 230–31, 233.

The court concluded: “Where, as here, the law

enforcement officer without a warrant uses his official position of authority and

falsely claims that he has legitimate police business to conduct in order to gain

consent to enter the premises when, in fact, his real reason is to search inside for

evidence of a crime, we find that this deception under the circumstances is so unfair

as to be coercive and renders the consent invalid.” Id. at 233.

In State v. Schweich, 414 N.W.2d 227 (Minn. Ct. App. 1987), the court found

consent involuntary where officers requested to search the defendant’s home in

order to find a firearm used to assault him, not to investigate whether the

defendant possessed drugs.

Id. at 230. The court recognized that even “[t]acit

misrepresentation of the purpose of a search can rise to such a level of deception to

invalidate the consent.” Id. And, in State v. McCrorey, 851 P.2d 1234 (Wash. Ct.

App. 1993), abrogated on other grounds by State v. Head, 964 P.2d 1187 (Wash.

1998), the court likewise “conclude[d] that police acting in their official capacity

may not actively misrepresent their purpose to gain entry.” Id. at 1240.

In all of these cases, the courts not only deemed relevant, but found

dispositive, police deception of their real, albeit subjective, investigatory purpose.

Even in cases finding consent voluntary, federal and state appellate

courts have made clear that police deception of investigatory purpose was by no

means “irrelevant—it still may be considered along with other factors as part of the

totality of circumstances.”

United States v. Carter, 884 F.2d 368, 375 (8th Cir.

1989). For example, the Eighth Circuit in one case held that consent was voluntary

because the officers did not engage in any deceptive misrepresentation. United

States v. Briley, 726 F.2d 1301, 1304–05 (8th Cir. 1984). But the court cautioned

that “misrepresentation about the nature of an investigation may be evidence of

coercion,” and its conclusion in that case was “not meant to imply that [the] consent

would be considered voluntary had the police intentionally attempted to trick her by

falsely stating their purpose.” Id. (citation omitted); accord Vizbaras v. Prieber, 761

F.2d 1013, 1017 (3d Cir. 1985) (finding consent voluntary because officers did not

“deceptively describe[ ] their purpose”).

Similarly, the Seventh Circuit emphasized in one case that “[m]ost

important[ ]” to its conclusion on voluntariness was the “clear absence of any

misrepresentation, deception, or trickery on the part of the police.” United States v.

Griffin, 530 F.2d 739, 743 (7th Cir. 1976). The court recognized that “[t]rickery,

fraud, or misrepresentation on the part of the police to gain entry naturally

undermines the voluntariness of any consent.”

Id.

In that case, however, the

officers accurately and “fully informed [the defendant] of the events leading to their

presence and the reasons for their request to be admitted into,” including the

purpose of the investigation. Id. Given that “full disclosure by the police and the

absence of any signs of coercion by the officers,” the consent was voluntary. Id.

at 744; cf. United States v. Watzman, 486 F.3d 1004, 1006–07 (7th Cir. 2007)

(government conceded on appeal, and court of appeals accepted, that consent was

involuntary where officers told homeowner they were following up on burglary he

had previously reported, when their real purpose was to search for contraband).

The Fifth Circuit has likewise recognized that “[a]ny misrepresentation by

the government is a factor to be considered in evaluating the circumstances.”

United States v. Davis, 749 F.2d 292, 294 (5th Cir. 1984).

In Davis, the court

rejected as a factual matter the defendant’s argument “that the officers

intentionally misrepresented the nature and scope of their investigation.” Id. It

explained that the officers’ secondary investigative purpose did not arise until after

they had entered the home and the defendant voluntarily offered incriminating

evidence. See id. at 294–97. Because the officers did not “mistate[ ] their purpose,”

and there was “no evidence in the record of any intent to deceive on the part of the

officers,” the consent was deemed voluntary. Id. at 295 & n.2, 297.

State courts are again on the same page, including those within the Eleventh

Circuit.

Emphasizing Schneckloth’s totality-of-the-circumstances approach, the

Florida Supreme Court has made clear that “police deception [i]s one of many

factors to be reviewed when analyzing the voluntariness of consent.”

Wyche v.

State, 987 So.2d 23, 29 (Fla. 2008). Thus, while the court concluded in that case

that deception did not vitiate the voluntariness of consent, it recognized that the

“investigator’s failure to inform Wyche of the actual purpose of the search” was a

relevant factor, just not one “so controlling as to overpower Wyche’s will.”

Id.

Illustrating the point, the court in that same opinion upheld a finding in a

companion lower-court case “that the investigator's deception [of purpose] caused

[the defendant] to feel coerced into consenting.” Id. at 31.

The Georgia Supreme Court has likewise recognized that police deception

may vitiate the voluntariness of consent. In Welch v. State, 229 S.E.2d 390 (Ga.

1976), the court acknowledged that “consent which is the product of . . . deceit on

the part of the police is invalid,” but it found no deception in that case. Id. at 397.

In Code v. State, 214 S.E.2d 873 (Ga. 1975), the court also found no deception, but

recognized that “[i]t is true that where deceit is used to obtain a consent . . . , a

resultant consent by the accused to the search is invalid.” Id. at 877. And that

court more recently recognized that “[t]he subjective intent of the officer in

requesting the search is relevant” to voluntariness where “that intent has been

conveyed to the person confronted.” Daniel v. State, 597 S.E.2d 116, 123 (Ga. 2004)

(citation omitted), abrogation on other grounds recognized in Salmeron v. State, 632

S.E.2d 645, 647 (Ga. 2006).

* * *

In sum, in the 45 years since Schneckloth, federal and state courts have

repeatedly recognized that police misrepresentation of their investigatory purpose

can, and often will, bear heavily on the voluntariness inquiry. Yet the decision

below categorically holds that such deception, no matter how deliberate or flagrant,

is legally “irrelevant.” The resulting disparity is manifest: in the Eleventh Circuit

alone, federal courts must now disregard the otherwise critical fact that the police

misrepresented the purpose of their investigation. As a result, geography alone will

play a determinative role in resolving whether such deception vitiates the

voluntariness of consent. This case concretely illustrates the point: had Petitioners

lived outside of the Eleventh Circuit—or had they been charged with state rather

than federal offenses, see Fla. Stat. §§ 817.57–685 (“Credit Card Crimes”)—the

police deception would have, at the very least, been a dominant factor in the court’s

legal analysis. Fourth Amendment protection should not turn on such fortuity.

II.

THE QUESTION PRESENTED IS UNSETTLED, RECURRING, AND IMPORTANT

Not only does the anomalous decision below fracture the legal landscape, but

it creates perverse incentives for police behavior, it has deeply troubling

implications for the Fourth Amendment, and it undermines the rule of law.

Consent searches are widespread in America. While “[i]t is difficult to

assess the[ir] precise number,” “[m]ultiple scholars have estimated that consent

searches comprise more than 90% of all warrantless searches by police, and that

they are unquestionably the largest source of searches conducted without

suspicion.”

Alafair S. Burke, Consent Searches and Fourth Amendment

Reasonableness, 67 Fla. L. Rev. 509, 511 (2015) (quotation marks and footnotes

omitted). As police “have increasingly come to rely upon purported ‘consents’ as the

basis upon which wholesale searches are undertaken without probable cause and

upon no or minimal suspicion,” Wayne R. LaFave, 4 Search & Seizure § 8.2 (5th ed.

2016), they have resorted to deception. Indeed, “[l]ying meant to effectuate a search

or a seizure is routine practice for many police officers,” including by

“misrepresent[ing] [their] purpose.”

Christopher Slobogin, Deceit, Pretext, and

Trickery: Investigative Lies by the Police, 76 Or. L. Rev. 775, 782 (1997).

This

controversial practice is reflected in the number of cases where the resulting

consent is challenged as involuntary. See LaFave, supra § 8.2(n) (citing numerous

cases addressing voluntariness and police “[d]eception as to purpose”).

Yet, surprisingly, this Court “has never addressed how a government official’s

deception as to the purpose of the official’s action or investigation may affect the

voluntariness of an individual’s consent to a search.” Wyche, 987 So.2d at 38 n.12

(Anstead, J., dissenting). Nor has it even generally “addressed deception in the

context of inducing consent to be searched.” Rebecca Strauss, Note, We Can Do This

the Easy Way or the Hard Way: The Use of Deceit to Induce Consent Searches, 100

Mich. L. Rev. 868, 882, 884 (2002). In fact, the Court has devoted sparse attention

to the consent exception in recent years. Since 2006, it has meaningfully addressed

it only twice, with both cases dealing with the discrete question of third-party

consent. See Fernandez v. California, 571 U.S. __, 134 S. Ct. 1126 (2014); Georgia v.

Randolph, 547 U.S. 103 (2006). Not since United States v. Drayton, 536 U.S. 194

(2002) has the Court addressed the voluntariness of a consent. Meanwhile, it has

repeatedly granted certiorari to address numerous other Fourth Amendment issues

pertaining to warrantless searches and seizures.1 Given the prevalence of consent

For examples in just the last two Terms, see Byrd v. United States, __ S. Ct. __,

2017 WL 2119343 (warrantless search of rental cars); Collins v. Virginia, __ S. Ct.

__, 2017 WL 73634 (automobile exception, as applied to curtilage of home);

searches, and the widespread use of police deception to conduct them, this Court’s

review in this area is long overdue.

The need for such scrutiny is most pressing where, as here, police use

trickery to invade the home without a warrant. 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 (1984) (citation

omitted). Because this freedom from governmental intrusion stands “[a]t the very

core of the Fourth Amendment,” Kyllo v. United States, 533 U.S. 27, 31 (2001)

(citation omitted), it is “a basic principle of Fourth Amendment law that searches

and seizures inside a home without a warrant are presumptively unreasonable,”

Payton v. New York, 445 U.S. 573, 589 (1980) (quotation marks, brackets, and

comma omitted). Because “all details [in the home] are intimate details,” Kyllo, 533

U.S. at 37, the consent exception must remain “jealously and carefully drawn” in

that context, Randolph, 547 U.S. at 109. With “the home . . . first among equals,”

Florida v. Jardines, 569 U.S. 1, 6 (2013), voluntariness review must be robust.

The decision below imperils these entrenched principles.

Rather than

promoting caution, it incentivizes the circumvention of the warrant requirement for

the home.

By concluding that investigatory purpose is irrelevant to the

voluntariness inquiry—such that it “does not matter” whether officers “deliberately

lie[ ]” about their purpose, App. 12a—the decision below encourages officers to trick

Carpenter v. United States, 137 S. Ct. 211 (2017) (warrantless seizure of historical

cell phone records); District of Columbia v. Wesby, 137 S. Ct. 826 (2017) (probable

cause to conduct warrantless arrest); Birchfield v. North Dakota, 579 U.S. __, 136 S.

Ct. 2160 (2016) (warrantless blood/breath tests).

wary homeowners into opening their doors when they otherwise would not. In the

Eleventh Circuit, officers can now rest assured that, if they develop a clever pretext

and use it to induce a homeowner’s consent, there is no risk that it will later be

invalidated by a federal court. Moving forward, they can gin up wily subterfuges

with Fourth Amendment impunity. So why would they ever tell the truth or seek a

warrant? It is open season on the home.

The unconstrained employment of such deception would thus render the

Fourth Amendment “of little practical value.” Jardines, 569 U.S. at 6. Indeed,

there is no limit to the forms that police deception may take. As this case and

others illustrate, the police have sought consent to enter the home for a variety of

irresistible purposes—e.g., to assist the suspect as the victim of a crime, to assist

her with official government business, to protect her from danger, to facilitate her

exoneration of a crime, and to enlist her help as a good Samaritan—when their real

purpose was to criminally investigate her.

The police can now employ such

deception at will, regardless of whether they have suspicion of any wrongdoing.

Given the lack of legal repercussions, even innocent homeowners are at risk, not to

mention those belonging to disfavored groups. In the Eleventh Circuit, police can

now prey on the good-faith belief that government officials are truly there to protect

and serve.

Such deception is circumscribed only by the bounds of police

imagination, not the law.

The unfettered police deception unleashed by the decision below

creates serious public policy concerns. Routinely betraying the people’s trust in

order to invade their home will have deleterious consequences not only for the

people but for law-enforcement.

People will stop reporting crime, assisting

investigations, and engaging in open dialogue. They will no longer be the eyes and

ears of the street. If they see something, they may not say something for fear of

becoming a suspect. “But it is no part of the policy underlying the Fourth . . .

Amendment[ ] to discourage citizens from aiding to the utmost of their ability in the

apprehension of criminals.” Coolidge v. New Hampshire, 403 U.S. 443, 488 (1971).

This case illustrates the point: had Petitioners known that reporting

burglaries would have invited police deception and ultimately their own

prosecution, they never would have reported those crimes.

And burglaries are

commonplace: in 2016, one occurred every 20 seconds in America. Fed. Bureau of

Investigation, Uniform Crime Report, 2016 Crime Clock Statistics.2 Yet, in the

Eleventh Circuit, reporting a burglary now “welcomes the warrantless search of

[the] home for other illegal activity.” App. 34a n.8 (Martin, J., dissenting).

Not only does the decision below discourage citizens from reporting crime, but

it cuts deeper, threatening a cornerstone of our democracy.

As one court has

cogently explained:

Inherent in our democracy is a belief that, since the government

represents the will of the people, the people will accept its dictates

voluntarily. There is a sense of trust between the government and the

people. It [i]s the abuse of this trust which we [can]not accept . . . .

We believe that a private person has the right to expect that the

government, when acting in its own name, will behave honorably.

https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/resourcepages/figures/crime-clock.

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 records which would otherwise be unavailable to him

by invoking the private individual’s trust in his government, only to

betray that trust.

SEC v. ESM Govn’t Sec., Inc., 645 F.2d 310, 316 (5th Cir. 1981) (citation omitted).

Those troubling policy implications align with precedent.

“The constant

element in assessing Fourth Amendment reasonableness in [our] consent cases . . .

is the great significance given to widely shared social expectations.” Randolph, 547

U.S. at 111. A society founded on the rule of law should not require its citizens to

harbor such deep-seated mistrust of the uniformed officers sworn to protect and

serve them. Just as it “reinforces the rule of law for the citizen to advise the police

of his or her wishes and for the police to act in reliance on that understanding,”

Drayton, 536 U.S. at 207, it undermines the rule of law for the police to deceptively

induce citizens to consent to searches that they would otherwise refuse. If that

paradigm takes hold in the context of the home, perhaps the last refuge of privacy

in the digital era, then the people will come to resent the government and even

regard it as illegitimate. “The catastrophic consequences for a society which loses

trust in its constables may be conjured without even the exercise of any creative

effort.” United States v. Parson, 599 F.Supp.2d 592, 606 (W.D. Pa. 2009).

* * *

As Judge Martin cautioned in dissent, the decision below will permit the

routine circumvention of the warrant requirement for searches of the home,

draining the core of the Fourth Amendment. And because it emboldens the police to

lie, deceive, and trick the American people in order to access their most intimate

spaces, it will deliver a shocking blow to the already-fragile relationship between

the citizenry and the government. By encouraging the police to become fraudsters,

the decision below will blur the line between cop and criminal, foster cynicism,

mistrust, and non-cooperation among the citizenry, and tear at the fabric of our

democracy. These high stakes necessitate review by this High Court.

III.

THIS IS AN IDEAL VEHICLE TO DECIDE THE QUESTION PRESENTED

This case is an optimal vehicle for review. For starters, “the parties do

not dispute the facts and both rely solely on the testimony of the government’s

witnesses.” App. 24a (Martin, J., dissenting). Because the officers candidly, if not

boastingly, admitted to deliberately misrepresenting their investigatory purpose in

order to induce Austin’s consent, Petitioners did not challenge their credibility.

They simply argued that this testimony established a lack of voluntariness.

The district court’s factual findings track that undisputed testimony. The

court specifically found that the officers “went to the home on the pretext of

following up on two burglaries,” which was “not the main or real reason” for their

visit. App. 39a. It further found that the evidence they sought “was not intended to

be used in a case where Spivey and Austin were victims, but it was to be used

against them.” App. 42a. And, to the extent Iwaskewycz had “[a]ny motive to

obtain evidence of a burglary,” it “was clearly secondary and very minimal

compared to the interest in a credit card investigation.”

Id. Thus, there is no

dispute that the officers misrepresented their purpose. Rarely will the Court be

presented with such a clean factual record on subjective purpose.

On appeal, and agreeing with the government’s argument, U.S. C.A.

Br. 38, the court of appeals explicitly ruled that “[t]he officers’ subjective purpose in

undertaking their investigation does not affect the voluntariness of Austin’s

consent.” App. 13a. The court was emphatic on this point, repeating that: “[t]he

subjective motivation of the officers is irrelevant;” it “does not matter” whether

officers “deliberately lie[ ]” about their purpose; “pretext” is irrelevant where officers

are engaged in “objectively justifiable behavior;” and Austin’s “ability to consent

was not dependent on whether the officers” truthfully explained their “intentions.”

App. 12a–13a, 16a. The court could not have been clearer.

That unequivocal point, moreover, was critical to the court’s voluntariness

conclusion. By declaring subjective purpose legally irrelevant, the court excised the

police deception from the analysis. “Stripped of its subjective purposes, the officers’

‘ruse’ was a relatively minor deception that created little, if any, coercion.” App.

13a.

Without that deceptive purpose, all that remained of the ruse was the

misidentification of Lanfersiek. But the court of appeals disposed of that deception

on the same ground, pointing out it was “material only to [conceal] the subjective

purpose of the investigation.” App. 14a. Thus, by declaring the subjective purpose

of the police legally irrelevant, the court removed the deception from the analysis.

After that, the court had little trouble concluding that the consent was voluntary,

for the remaining “factors other than deceit all point in favor of voluntariness.” Id.

Not only did that reasoning form the linchpin of the court’s analysis,

but it represented a key point of contention with the dissent.

Judge Martin

disagreed that “pretext for investigating the burglary [wa]s not relevant.” App. 31a

n.4. She explained that the officers’ pretext here was highly relevant because it was

“the express reason given to Ms. Austin that led her to let the officers into her

home.”

Id.

And she explained that Whren was distinguishable, because it

addressed probable cause, objectively analyzed from the officers’ perspective,

whereas voluntariness is a subjective analysis from the individual’s perspective. Id.

Furthermore, Judge Martin relied heavily on the officers’ deception of

purpose to conclude that Austin’s consent was not voluntary. App 21a, 28a, 31a.

She repeatedly explained that, had the officers truthfully informed Austin that

their purpose was to investigate credit-card fraud, she “would not have let [them]

into her home.” App. 29a, 33a n.7. Judge Martin correctly explained that, when the

officers falsely told Austin that their purpose was to follow up on the burglaries, she

became “genuinely excited,” “relieved,” “happy,” and eagerly invited them inside.

App. 31a. And, later on, “Austin refused to cooperate with law enforcement once

the officers revealed their true purpose.” Id. Had the officers’ subjective purpose

been relevant, Austin’s consent “could not have been free, because it was entirely a

product of the officers’ untruthfulness.” App. 31a–32a. Unable to dispute this key

point, the majority instead declared their investigatory purpose legally irrelevant.

Finally, the decision below was based solely on the voluntariness of

Austin’s consent. While the district court denied the suppression motion on an

alternative ground, the court of appeals expressly declined to reach that issue. App.

20a. And for good reason: that alternative ruling was manifestly incorrect.

Austin explained at length below, the officers deliberately exploited the contraband

they observed during the initial warrantless search of the home. As part of their

plan, they strategically confronted Spivey and Austin with that evidence to induce

his consent and her statements. Accordingly, everything was fruit of the unlawful

initial search. See Pet. Austin C.A. Br. 42–56; Pet. Austin C.A. Reply Br. 17–27.

* * *

To recap: the undisputed testimony and factual findings establish that the

officers misrepresented their investigatory purpose.

The parties thoroughly

disputed the voluntariness of Austin’s consent below, and both courts resolved that

question. The court of appeals expressly ruled that police deception of investigatory

purpose is irrelevant to voluntariness. That reasoning formed the linchpin of its

conclusion and was disputed by the dissent. The majority did not dispute that,

absent the deception, Austin would have refused consent. It did not uphold the

denial of the suppression motion on any alternative ground.

And there are no

state-law or tangential issues that might obstruct review. Accordingly, the question

presented is squarely before the Court. The Court should decide it.

IV.

THE DECISION BELOW IS WRONG

Finally, and as its outlier status reflects, the decision below is wrong.

As an initial matter, it defies common sense. When an officer comes to

the door and asks to come in and look around, the very first question a homeowner

will have is: why? Where an officer affirmatively represents that his purpose is to

help the homeowner as, say, the victim of a crime, when in reality his purpose is to

investigate

the

homeowner

the

perpetrator

crime,

misrepresentation will invariably affect the homeowner’s decision.

then

that

Had the

homeowner known the officer’s true purpose, she would be much less likely to

consent; hence the reason for the police deception in the first place.

Put simply, such “misrepresentation on the part of the police to gain entry

naturally undermines the voluntariness of any consent.” Griffin, 530 F.2d at 743;

see Alexander v. United States, 390 F.2d 101, 110 (5th Cir. 1968) (“Intimidation and

deceit are not the norms of voluntarism. In order for the response to be free, the

stimulus must be devoid of mendacity. We do not hesitate to undo fraudulently

induced contracts.”).

But by concluding that an officer’s subjective purpose is

always irrelevant, the decision below ignores that common-sense reality.

For that same reason, the decision below also contravenes Schneckloth.

In that seminal decision, the Court explained that the test for voluntariness is

whether the consent is “the product of an essentially free and unconstrained choice,”

or instead whether the individual’s “will has been overborne and his capacity for

self-determination critically impaired.”

Schneckloth, 412 U.S. at 225 (citation

omitted). As just explained, a citizen cannot make a meaningful decision, exercise

self-determination, or “advise the police of . . . her wishes” when she is misled about

their objective. Drayton, 536 U.S. at 207; cf. United States v. Watson, 423 U.S. 411,

424 (1976) (finding consent voluntary where there was “no indication of more subtle

forms of coercion that might flaw his judgment”).

Categorically exempting such deception from the analysis also runs afoul of

Schneckloth’s repeated observation that voluntariness depends on “all the

circumstances.”

412 U.S. at 226–27, 233, 234 n.15, 249.

The Court has since

reiterated that “the totality of the circumstances must control,” and “there are no

per se rules.” Drayton, 536 U.S. at 206–07; see Ohio v. Robinette, 519 U.S. 33, 39–40

(1996); United States v. Mendenhall, 446 U.S. 544, 557–58 (1980); Watson, 423 U.S.

at 424.

The decision below, however, isolates one particular (and critical)

circumstance—police deception of purpose—and declares it irrelevant as a matter of

law. That per se exemption finds no support in this Court’s consent precedents.

To the contrary, the Court has recognized that “[t]he Fourth Amendment can

certainly be violated by guileful . . . intrusions into a constitutionally protected

area.” Hoffa v. United States, 385 U.S. 293, 301 (1966). In Schneckloth itself, the

Court cautioned “that the criminal law cannot be used as an instrument of

unfairness, and that the possibility of unfair . . . police tactics poses a real and

serious threat to civilized notions of justice.”

412 U.S. at 225.

It repeatedly

recognized that “implied,” “implicit,” and “subtle” forms of coercion could vitiate the

voluntariness of consent.

Id. at 227–30, 248. “For, no matter how subtly the

coercion was applied, the resulting ‘consent’ would be no more than a pretext for the

unjustified police intrusion against which the Fourth Amendment is directed.” Id.

at 228.

The decision below contravenes that understanding by treating

consent-inducing “pretexts” as legally irrelevant. App. 13a.

In addition to overlooking the points above, the decision below employs

flawed reasoning. It replaces Schneckloth’s voluntariness inquiry—focusing on the

defendant’s “subjective” state and understanding, 412 U.S. at 229–30—with one

based on whether the police have engaged in “objectively justifiable behavior,” App.

13a. The authority it cites for that doctrinal transformation reveals its fallacy.

Whren and its progeny address whether there is probable cause or reasonable

suspicion to support a search or seizure.

Because that is an objective inquiry

undertaken from the perspective of the officer, pretexts and subjective motivations

are irrelevant. See Whren, 517 U.S. at 810–13. Voluntariness, by contrast, is a

subjective inquiry undertaken from the perspective of the individual. The inquiry

focuses on the circumstances surrounding her decision.

And that decision can

certainly be informed by police misrepresentations of purpose.

To be sure, this Court’s Fourth Amendment jurisprudence has generally

eschewed examination of officers’ subjective motivations. But the very nature of the

voluntariness inquiry compels such an examination where officers affirmatively

misrepresent their investigatory purpose.

Again, such representations influence

the decision to consent and thus bear on its voluntariness.

Where officers

affirmatively inject their investigatory purpose into the calculus, their true

subjective purpose cannot be carved out of the ensuing analysis.

That is

particularly true here, where “[t]he pretext of investigating a burglary . . . was the

express reason given to Ms. Austin that led her to let the officers into her home.”

App. 31 n.4. (Martin, J., dissenting); cf. Michigan v. Chesternut, 486 U.S. 567, 575

n.7 (1988). And just as deliberate police misrepresentations to a neutral magistrate

can bear on the validity of the resulting warrant, see Franks v. Delaware, 438 U.S.

154 (1978), deliberate misrepresentations to an individual can bear on the

voluntariness of her resulting consent.

Lastly, the court of appeals reasoned that voluntariness depends solely on

“what the suspect knows.” App. 12a. But that cramped conception of voluntariness

is irreconcilable with Bumper v. North Carolina, 391 U.S. 543 (1968). There, the

Court held that consent was coerced where the police claimed to possess a warrant,

but that warrant turned out to be invalid or non-existent.

Id. at 549–50.

The

individual had no knowledge of that crucial fact, yet the Court nonetheless deemed

her consent coerced. Had the individual been so informed, she would have refused

consent. So too here. Moreover, if voluntariness depended only on what the suspect

knew, then that would render virtually all forms of police deception irrelevant.

After all, police deception is always designed to conceal the truth from the suspect.

* * *

In sum, while police deception of investigatory purpose need not vitiate the

voluntariness of consent in every single case, it cannot be categorically excluded

from Schneckloth’s totality-of-the-circumstances analysis. To the contrary, it will

often be the most important circumstance of all.

This Court’s intervention is

necessary to correct the anomalous and dangerous reasoning of the decision below.

CONCLUSION

For the foregoing reasons, the Court should grant this petition for a writ of

certiorari.

Respectfully submitted,

MICHAEL G. SMITH

Litigation Building

633 South Andrews Ave. , Suite 500

Ft. Lauderdale, FL 33301

(954) 761-7201

MICHAEL CARUSO

FEDERAL PUBLIC DEFENDER

/s/ Andrew L. Adler

ANDREW L. ADLER

Counsel of Record

ASS’T FED. PUBLIC DEFENDER

150 W. Flagler St., Suite 1500

Miami, FL 33130-1555

(305) 536-5900

Andrew_Adler@fd.org

Counsel for Petitioner Spivey

Counsel for Petitioner Austin

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.