Opposition Brief — Eric Jermaine Spivey and Chenequa Austin, Petitioners v. United States
Supreme Court briefMay 4, 2018
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No. 17-7046
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
ERIC JERMAINE SPIVEY AND CHENEQUA AUSTIN, PETITIONERS
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOHN P. CRONAN
Acting Assistant Attorney General
ELIZABETH H. DANELLO
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTION PRESENTED
Whether
petitioner
the
Austin
court
of
appeals
voluntarily
correctly
consented
to
determined
a
search
that
of
petitioners’ house in circumstances where officers provided one
truthful reason for the search (to investigate burglaries reported
by petitioners) but concealed their other, principal reason for
the search (to investigate possible credit-card fraud).
(I)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 17-7046
ERIC JERMAINE SPIVEY AND CHENEQUA AUSTIN, PETITIONERS
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-35a) is
reported at 861 F.3d 1207.
The order of the district court (Pet.
App. 38a-44a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on June 28,
2017.
A petition for rehearing was denied on September 13, 2017
(Pet. App. 36a-37a).
The petition for a writ of certiorari was
filed on December 11, 2017.
The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).
2
STATEMENT
Following
conditional
guilty
pleas
in
the
United
States
District Court for the Southern District of Florida, petitioners
were convicted on one count of conspiracy to commit access-device
fraud
and
possess
device-making
equipment,
in
violation
of
18 U.S.C. 1029(b)(2), and one count of aggravated identity theft,
in violation of 18 U.S.C. 1028A(a)(1) and 2.
Austin Judgment 1.
Spivey Judgment 1;
Petitioner Eric Jermaine Spivey also was
convicted on one count of possession of a firearm and ammunition
by a felon, in violation of 18 U.S.C. 922(g)(1).
1.
Spivey
was
sentenced
to
a
total
term
Spivey Judgment
of
70
months
of
imprisonment, to be followed by three years of supervised release.
Spivey Judgment 2-3.
Petitioner Chenequa Austin was sentenced to
a total term of 36 months of imprisonment, to be followed by three
years of supervised release.
appeals affirmed.
1.
Austin Judgment 2-3.
Pet. App. 1a-35a.
Petitioners shared a house in Lauderhill, Florida, which
was twice burglarized in November 2014.
Pet. App. 164a-171a.
Petitioners reported both burglaries to the police.
171a.
The court of
Id. at 169a-
In December 2014, police in the nearby city of Sunrise,
Florida, arrested Caleb Hunt for a series of house burglaries in
the area.
interview,
Id. at 54a-55a, 86a-87a, 164a-165a.
Hunt
admitted
having
In a post-arrest
burglarized
petitioners’
residence, which he reported was the site of substantial credit-
3
card fraud.
Id. at 55a, 87a-93a, 164a-165a.
Alex Iwaskewycz, a
Lauderhill Police Department detective assigned to a regional
organized-fraud
task
force,
decided to investigate.
learned
of
this
information
and
Id. at 164a-166a, 171a-174a.
On December 17, 2014, Detective Iwaskewycz and his task-force
colleague, United States Secret Service Agent Jason Lanfersiek,
visited
petitioners’
house.
Pet.
App.
53a,
55a-56a,
174a.
Detective Iwaskewycz later testified that this visit was a “dualpurpose investigation.”
Id. at 257a.
Although the main purpose
of the officers’ visit was to investigate possible credit-card
fraud,
Detective
Iwaskewycz
also
received
authorization
from
Lauderhill police to follow up about the two reported burglaries.
Id. at 55a-56a, 172a-174a.
At that time, no Lauderhill detective
had yet investigated the burglaries, nor had police arrested anyone
for those offenses.
Id. at 173a, 206a-207a.1
The two officers arrived at the house wearing identifiable
police gear.
Pet. App. 56a, 175a-176a.
Austin was initially
outside, but entered the house upon seeing the officers arrive.
Id. at 56a-58a, 175a.
inside
to
warn
Spivey
Austin later explained that she had gone
of
the
police
presence
and
to
incriminating evidence (a credit-card reader) in the oven.
hide
Id. at
68a, 178a.
Petitioners’ suggestion (Pet. 6) that police “had
already arrested the burglar * * * and closed the case” is thus
in error.
1
4
Austin then met the officers at the door.
175a.
Pet. App. 58a-59a,
Detective Iwaskewycz accurately identified himself as an
officer with the Lauderhill Police Department and said that he had
come to follow up on the reported burglaries.
Id. at 58a, 175a-
176a.
identified
Detective
Iwaskewycz
inaccurately
Agent
Lanfersiek as a crime-scene technician within the same department.
Id. at 58a, 176a.
Although the officers did not announce that
they were also investigating possible credit-card fraud, they did
not assert that the burglaries were the only reason they had come
to the house, nor did they promise Austin they would ignore any
evidence of other crimes.
Id. at 61a-62a, 176a-177a, 189a.
Austin seemed excited that the officers had come, and she
invited them into the house.
Pet. App. 59a, 175a-177a.
Spivey,
whom Austin identified as her boyfriend, emerged from the master
bedroom, and Austin said that Spivey had surveillance video from
one of the burglaries on his computer.
Id. at 59a-61a, 178a, 183a.
Detective Iwaskewycz stayed in the living room and worked with
Spivey to locate and upload the video.
Id. at 62a, 184a-185a.
Lauderhill police later used that video as evidence in arresting
Hunt for burglarizing petitioners’ residence.
Id. at 205a-207a.
In the meantime, at Agent Lanfersiek’s request, Austin led
him through the house along the path the burglar had taken.
App. 60a, 62a-63a, 102a.
Pet.
Under the guise of being a crime-scene
technician, Agent Lanfersiek pretended to dust for fingerprints.
5
Id. at 60a, 62a, 103a-104a.
Austin took Agent Lanfersiek into the
master bedroom, where he observed in plain view a stack of credit
cards and a large amount of high-end commercial merchandise.
at 62a-64a.
Id.
The closet door was open, and Agent Lanfersiek saw
inside a credit-card embossing machine.
Id. at 64a-65a.
Alerted
by Agent Lanfersiek, Detective Iwaskewycz then went into the
bedroom and observed the same items that Agent Lanfersiek had seen.
Id. at 185a-188a.
Detective Iwaskewycz asked Austin to step outside.
188a-189a.
Pet. App.
He explained to Austin that he was investigating
possible credit-card fraud in addition to the reported burglaries
and asked her about the suspicious items he had just seen.
189a-192a.
sense
to
Id. at
Austin responded with explanations that did not make
Detective
Iwaskewycz,
including
machine had been left by a prior landlord.
that
the
embossing
Id. at 190a-192a.
Austin was then placed under arrest on an outstanding warrant.
Id. at 193a.
Approximately 30 minutes after having stepped outside with
Austin,
Detective
Iwaskewycz
came
back
inside
and
similarly
informed Spivey that, although he was a detective following up on
the burglaries, his primary function was to investigate fraud.
Pet. App. 69a-70a, 146a-147a, 194a-196a.
Detective Iwaskewycz
identified Lanfersiek as a Secret Service agent and stated that
Austin had just been arrested.
Id. at 70a, 194a-195a.
Spivey
6
denied knowing about any fraudulent activity, and he also claimed
that the embossing machine had been left by a prior landlord.
Id.
at 71a-72a, 145a, 195a-196a.
The officers asked Spivey if he would consent to a search of
the house, and Spivey responded by giving both oral and written
consent.
Pet. App. 72a-73a, 196a-199a.
This consent occurred
approximately one hour after the officers had first entered the
house.
Id. at 259a-260a.
The officers then conducted a thorough
search and found further evidence of fraud, including the creditcard reader hidden in the oven.
Id. at 134a-135a, 199a-200a.
The
officers also recovered a firearm, which was later determined to
be the same gun used in an attempted murder for which Spivey had
been charged.
Id. at 199a, 203a-204a.2
At no point during the officers’ visit did they threaten or
restrain
petitioners,
raise
their
weapons.
Pet. App. 71a, 155a, 189a.
voices,
or
display
their
Both petitioners were polite
and cooperative throughout the time leading up to their respective
consents to search.
2.
Id. at 72a, 155a-156a, 185a, 196a.
A grand jury in the Southern District of Florida returned
an indictment charging petitioners with one count of conspiracy to
commit access-device fraud and possess device-making equipment, in
Officers
also
recovered
two
cellular
telephones
belonging to Spivey, who consented to a search of their contents.
Pet. App. 200a-201a. In a post-arrest interview, Austin provided
additional information about Spivey’s firearm. Id. at 76a-83a.
2
7
violation of 18 U.S.C. 1029(a)(3), (a)(4), and (b)(2); one count
of possession of unauthorized access devices, in violation of
18 U.S.C. 1029(a)(3) and 2; one count of possession of devicemaking equipment, in violation of 18 U.S.C. 1029(a)(4) and 2; and
two counts of aggravated identity theft, in violation of 18 U.S.C.
1028A(a)(1) and 2.
Indictment 1-5.
Spivey was also charged with
one count of possession of a firearm and ammunition by a felon, in
violation of 18 U.S.C. 922(g)(1) and 924(e).
a.
Petitioners moved to suppress
Indictment 5.
the
evidence obtained
during the search, arguing that Austin’s consent to the initial
search of petitioners’ residence was not voluntary.
See D. Ct.
Doc. 47 (July 15, 2015); D. Ct. Doc. 50 (July 24, 2015).
Following an evidentiary hearing, the district court denied
the motion.
Pet. App. 38a-44a.
The court found that the officers
had gone to petitioners’ house on the “pretext of following up on
[the] two burglaries, which was a legitimate reason for being
there, but not the main or real reason.”
Id. at 39a.
explained,
ruse
however,
that
“not
voluntariness of a consent.”
every
Id. at 41a.
will
The court
negate
the
And considering the
“totality of circumstances” and “looking at all relevant factors,”
the court determined that Austin had voluntarily consented to the
search of the house.
Id. at 40a, 42a.
Among other facts, the
court noted that petitioners had invited the police presence by
reporting the burglaries, demonstrating that they were “willing to
8
risk exposure to credit card [fraud] prosecution to get [their]
property back.”
Id. at 43a.
The district court further determined that, even if Austin’s
initial consent were deemed invalid, Spivey’s subsequent oral and
written consent cured any such deficiency.
Pet. App. 40a, 43a.
Applying the attenuation factors identified in Brown v. Illinois,
422 U.S. 590, 603-604 (1975), the court reasoned that, although
the time between Austin’s consent and Spivey’s consent was “minimal
(about one hour),” intervening circumstances had “severed” any
causal connection between any initial illegality and Spivey’s
consent,
and
flagrant.”
b.
the
officers’
“was
not
particularly
Pet. App. 40a, 43a.
Petitioners
conspiracy
conduct
to
commit
each
pleaded
guilty
to
one
count
of
access-device
fraud,
in
violation
of
18 U.S.C. 1029(b)(2), and one count of aggravated identity theft,
in violation of 18 U.S.C. 1028A(a)(1) and 2.
Austin Judgment 1.
Spivey Judgment 1;
Spivey also pleaded guilty to possession of a
firearm and ammunition by a felon, in violation of 18 U.S.C.
922(g)(1). Spivey Judgment 1. The district court sentenced Spivey
to a total term of 70 months of imprisonment, to be followed by
three years of supervised release. Spivey Judgment 2-3. The court
sentenced Austin to a total term of 36 months of imprisonment, to
be followed by three years of supervised release.
Austin Judgment
9
2-3.
Each
petitioner
restitution.
3.
was
also
ordered
to
pay
$595.93
in
Spivey Judgment 5; Austin Judgment 5.
The court of appeals affirmed.
Pet. App. 1a-35a.
The
court explained that the voluntariness of consent to a search is
a “question of fact” to be determined from the “totality of the
circumstances.”
Id. at 6a, 8a (citations omitted).
The court
stated that, although a police officer’s “[d]eceit” can be one
factor “relevant to voluntariness,” “[n]ot all deception prevents
an individual from making an ‘essentially free and unconstrained
choice.’”
Id. at 8a, 10a (quoting Schneckloth v. Bustamonte,
412 U.S. 218, 225 (1973)).
Rather, “[t]he Fourth Amendment allows
some police deception so long [as] the suspect’s ‘will was [not]
overborne.’”
Id. at 10a (quoting Schneckloth, 412 U.S. at 226)
(third set of brackets in original).
Applying those principles, the court of appeals determined
that
“Austin’s
consent
was
voluntary”
because
“the
officers’
‘ruse’ was a relatively minor deception” and “[t]he factors other
than deceit all point in favor of voluntariness.”
14a.
Pet. App. 13a-
The court observed that petitioners had “invited the[]
interaction” by “inform[ing] the police of the burglaries”; that
“Austin knew that she was interacting with criminal investigators
who had the authority to act upon evidence of illegal behavior”;
and
that
petitioners
had
“engaged
in
intentional,
strategic
behavior” by hiding certain evidence of fraud and by giving a
10
“rehearsed story” to explain other evidence.
Id. at 15a-16a.
Having determined that Austin’s consent was voluntary, the court
did not reach the district court’s alternative ruling that Spivey’s
subsequent consent to search had cured any perceived deficiencies
in Austin’s earlier consent.
Id. at 20a.
Judge Martin dissented, expressing the view that Austin’s
consent to the entry of officers who misleadingly represented that
they were investigating the burglaries was not voluntary based on
the totality of the circumstances.
Pet. App. 21a-35a.
ARGUMENT
Petitioners contend (Pet. 13-36) that the court of appeals’
decision erroneously held that the officers’ concealment of the
primary purpose of their search was irrelevant in analyzing the
voluntariness
of
Austin’s
consent.
Petitioners
misread
court’s decision, which does not include such a holding.
the
Rather,
the court expressly acknowledged that the officers’ deception was
a relevant factor, but ultimately determined that Austin’s consent
was voluntary under the totality of the circumstances.
That
determination was correct and does not conflict with the decision
of any other court of appeals or state court of last resort, and
admission of the challenged evidence is independently supported by
Spivey’s subsequent consent in any event.
of certiorari should therefore be denied.
The petition for a writ
11
1.
The court of appeals correctly affirmed the district
court’s determination that Austin voluntarily consented to the
officers’ entry and search of petitioners’ house.
a.
This Court has long recognized that “a search that is
conducted
Amendment.
pursuant
to
consent”
is
lawful
under
the
Fourth
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
Such a search is valid so long as “consent was ‘voluntarily’
given,” id. at 223, meaning that it was “the product of an
essentially free and unconstrained choice,” id. at 225.
Whether
an individual’s consent was voluntary, or instead was “the product
of duress or coercion,” is a “question of fact to be determined
from the totality of all the circumstances.”
Id. at 227; see also
Ohio v. Robinette, 519 U.S. 33, 40 (1996).
Applying
the
requisite
“case-by-case
analysis”
to
the
particular circumstances here, Pet. App. 8a (citation omitted),
the court of appeals correctly determined that Austin voluntarily
consented to the officers’ entry and search of her house.
The
court acknowledged that the officers had committed a “ruse” by
“misrepresent[ing] Agent Lanfersiek’s identity” and by choosing
not to disclose their primary purpose of investigating possible
credit-card fraud.
Id. at 13a.
But the court determined those
acts to be a “relatively minor deception that created little, if
any, coercion.”
Ibid.
The court observed that Austin was aware
that both Detective Iwaskewycz and Agent Lanfersiek were “involved
12
in criminal investigations,” and it found no evidence that Agent
Lanfersiek’s “exact position within the hierarchy of criminal law
enforcement was material to Austin’s consent.”
Id. at 13a-14a.
The officers also did not promise that they “would not act upon
[any] evidence of criminal activity” they discovered in the house.
Id. at 14a.
Indeed, Austin knew that “she faced a risk that [the
officers] would notice evidence of the credit-card fraud when she
consented to [their] presence in her home,” ibid., as demonstrated
by her decision to hide incriminating evidence in the oven.
The court of appeals also correctly recognized that Detective
Iwaskewycz’s
representation
that
he
was
investigating
the
burglaries was not itself untruthful. See Pet. App. 12a. Although
the officers’ primary purpose was to investigate possible fraud,
Detective Iwaskewycz also sought to follow up on the reported
burglaries on behalf of Lauderhill police.
See ibid. (“Iwaskewycz
testified that it was a ‘dual-purpose investigation.’”); id. at
56a, 173a, 195a, 206a, 239a, 257a.
although it was known that
petitioners’
house,
no
Hunt
detective
At the time of the search,
claimed to have burglarized
from
the
Department had yet followed up on the case.
Lauderhill
Police
Detective Iwaskewycz
received authorization from supervisors to perform that follow up,
and he did so:
in particular, he worked with Spivey to obtain a
surveillance videotape that was later used to support Hunt’s arrest
by Lauderhill police.
As the court recognized, this burglary
13
investigation
was
plainly
a
“legitimate
reason”
for
visiting
petitioners’ house, even if it was not the “main” reason.
Id. at
12a (quoting id. at 39a).
Finally, the court of appeals reasonably determined that
“[t]he
factors
voluntariness.”
other
than
deceit
Pet. App. 14a.
all
point
in
favor
of
The officers did not raise their
voices, display their weapons, or threaten or physically restrain
either petitioner.
Id. at 14a-15a.
Austin was an adult who had
prior experience with the criminal-justice system, and she “knew
that she was interacting with criminal investigators who had the
authority to act upon” any evidence of wrongdoing.
Id. at 15a.
Indeed, Austin’s “strategic behavior” in hiding certain evidence
in the oven, and her recitation of “a rehearsed story” about other
evidence in plain view, “strongly suggest[ed]” that her “‘will was
[not] overborne’” by the officers’ actions.
Id. at 10a, 16a
(quoting Schneckloth, 412 U.S. at 226) (second set of brackets in
original). Although it is fair to say that Austin made a strategic
misjudgment in assuming that the officers would either overlook
the evidence of fraud or accept her explanations for that evidence,
that
misjudgment
did
not
undermine
the
voluntariness
of
her
actions. Cf. United States v. Mendenhall, 446 U.S. 544, 559 (1980)
(“[T]he question is not whether the [defendant] acted in her
ultimate self-interest, but whether she acted voluntarily.”).
14
The court of appeals thus properly determined that “under the
totality of the circumstances” of this case, Austin’s consent was
voluntary.
Pet. App. 17a.
That factbound determination does not
warrant this Court’s review.
b.
In
arguing
See Sup. Ct. R. 10.
otherwise,
petitioners
repeatedly
assert
(e.g., Pet. 22) that the court of appeals’ decision “categorically
holds
that
flagrant,
[police]
is
deception,
legally
no
matter
‘irrelevant.’”
how
deliberate
Petitioners
misread
or
the
court’s opinion, which did not hold that affirmative acts of
deception by law enforcement are irrelevant to the Fourth Amendment
analysis.
To the contrary, the court of appeals expressly recognized
that deception is one factor that bears on the voluntariness of a
consent search.
See Pet. App. 8a-10a (stating that “[d]eceit can
also be relevant to voluntariness,” and collecting cases); id. at
11a (recognizing “[t]hat fraud, deceit or trickery in obtaining
access to incriminating evidence can make an otherwise lawful
search
unreasonable”)
(citation
and
internal
quotation
marks
omitted); ibid. (stating that “coercion” through deception is “one
factor to be considered in the totality of the circumstances”).
For that reason, the court evaluated the officers’ ruse in the
circumstances
here
at
issue,
see
id.
at
13a,
and
it
denied
petitioners’ suppression motion only after determining that the
officers’
deception
did
not,
on
these
facts,
vitiate
the
15
voluntariness of Austin’s consent to the search of the house.
See
ibid. (reasoning that “[s]tripped of its subjective purposes, the
officers’ ‘ruse’ was a relatively minor deception”); id. at 14a15a (reasoning that “[t]he factors other than deceit all point in
favor of voluntariness”) (emphasis added).
As support for their contention that the court of appeals
adopted a novel categorical rule forbidding all consideration of
police deception, petitioners cite (Pet. 13) the court’s statement
that “[t]he subjective motivation of the officers is irrelevant.”
Pet. App. 12a.
But petitioners’ interpretation of that statement
erroneously conflates an officer’s inward motivation (which is not
relevant to the analysis) with his or her outward conduct (which
is).3
in
The court did not conclude that police officers may engage
“flagrant”
acts
of
“deception”
(Pet.
2,
14,
22)
or
make
“deliberate misrepresentations” (Pet. 36) without Fourth Amendment
consequence.
Rather, the court simply observed that the analysis
must center upon an officer’s conduct as considered from the
perspective of the consenting individual, not upon the perceived
legitimacy of the officer’s subjective motivations.
See Pet. App.
The arguments of petitioners’ amici rest on the same
mistaken premise.
See, e.g., Florida Ass’n of Criminal Def.
Lawyers Amicus Br. 1, 3 (misinterpreting court of appeals’
statement about “subjective motivation” as a “per se endorsement
of
police
deception”
or
as
a
holding
that
“officers’
misrepresentation[s]” are “legally irrelevant”); Pacific Legal
Found. Amicus Br. 7 (interpreting same statement as a “holding”
that officers may “enter private homes at will when they
deliberately deceive the homeowner to obtain consent”).
3
16
11a-13a.
That understanding follows directly from this Court’s
precedent.
See Fernandez v. California, 134 S. Ct. 1126, 1134
(2014) (“[O]ur Fourth Amendment cases ‘have repeatedly rejected’
a subjective approach.”) (citation omitted); Ashcroft v. al-Kidd,
563 U.S. 731, 736 (2011) (“[T]he Fourth Amendment regulates conduct
rather than thoughts.”); Bond v. United States, 529 U.S. 334, 338
n.2 (2000) (“[T]he issue is not [the agent’s] state of mind, but
the objective effect of his actions.”); Whren v. United States,
517
U.S.
806,
812
(1996)
(“[A]n
officer’s
motive”
does
not
“invalidate[] objectively justifiable behavior under the Fourth
Amendment.”); Maryland v. Macon, 472 U.S. 463, 470-471 (1985).4
Petitioners’ current position that “[w]hether [police]
deception ultimately vitiates the voluntariness of consent will
depend on the totality of the circumstances” (Pet. 14) accords
with the court of appeals’ decision, but reflects a significant
shift from their arguments below.
In the court of appeals,
petitioners advocated a per se rule that any misrepresentation of
investigative purpose automatically renders consent involuntary.
See Austin C.A. Br. 26-34, 36-37, 39-40; cf. Spivey C.A. Br. 1011 (joining in argument). The court thus understood petitioners
to “present[] the question whether deception by law enforcement
necessarily renders a suspect’s consent to a search of a home
involuntary.” Pet. App. 2a (emphasis added). The court answered
that question in the negative, concluding that “[n]ot all deception
by law enforcement invalidates voluntary consent,” id. at 20a,
because voluntariness requires a “case-by-case analysis that is
based on the totality of the circumstances,” id. at 8a (citation
and internal quotation marks omitted). Applying such an analysis
to the facts here, the court affirmed the district court’s
decision, which similarly “rejected a ‘bright line rule that any
deception or ruse vitiates the voluntariness of a consent[ ]to
search.’” Id. at 5a (quoting id. at 42a).
4
17
2.
The court of appeals’ decision does not conflict with
the decisions of any other court of appeals or state court of last
resort. In arguing otherwise, petitioners cite a number of federal
and state cases (Pet. 14-22) recognizing that a police officer’s
misrepresentations
of
investigatory
purpose
evaluating the voluntariness of consent.
are
relevant
in
As already explained,
however, the court of appeals shared that same understanding. See,
e.g., Pet. App. 11a (“[F]raud, deceit or trickery
* * *
can make
an otherwise lawful search unreasonable.”) (citation omitted); see
pp. 11-15, supra.
Petitioners note (Pet. 14-19) that, in various cases, courts
have found that acts of police deception ultimately rendered
consent involuntary.
But those differences in outcome simply
reflect application of the “totality of all the circumstances”
analysis to the facts of particular cases.
at 227.
Schneckloth, 412 U.S.
As the court of appeals itself acknowledged, police
deception has frequently been found to render consent involuntary
in various kinds of circumstances, including “when an officer
falsely professes to have a warrant,” Pet. App. 8a; “when an
officer
lies
about
the
existence
of
exigent
circumstances”
suggesting “immediate danger,” id. at 9a; or when “police make
18
false promises,” ibid.
Many of the cases cited by petitioners
fall into those categories.5
Other cases cited by petitioners likewise involved facts
significantly different from those here, including circumstances
where the consenting party had never invited a police presence,
where
the
consenting
party
was
unaware
of
any
criminal
investigation, or where an officer’s stated reason for a search
was entirely -- not just partially -- untruthful.6
And to the
See Bumper v. North Carolina, 391 U.S. 543, 550 (1968)
(officers falsely claimed to possess a search warrant); United
States v. Harrison, 639 F.3d 1273, 1276 (10th Cir. 2011) (agent
falsely claimed having received a report that bombs were present
in apartment); United States v. Hardin, 539 F.3d 404, 407-408 (6th
Cir. 2008) (at officers’ direction, building manager falsely
claimed that there was a water leak); Krause v. Commonwealth, 206
S.W.3d 922, 926 (Ky. 2006) (police fabricated a story that “a young
girl had just been raped”), cert. denied, 551 U.S. 1131 (2007);
Redmond v. State, 73 A.3d 385, 398-399 (Md. Ct. Spec. App. 2013)
(police falsely claimed to be “investigat[ing] the whereabouts of
a dangerous pedophile”); State v. McCrorey, 851 P.2d 1234, 1236,
1240 (Wash. Ct. App. 1993) (defendant conditioned consent to entry
on not being arrested, yet police then arrested him), abrogated on
other grounds by State v. Head, 964 P.2d 1187 (Wash. 1998).
5
See United States v. Bosse, 898 F.2d 113, 114 (9th Cir.
1990) (per curiam) (ATF agent accompanied local official on a civil
licensing inspection and did not disclose his identity or criminal
investigatory purpose); United States v. Phillips, 497 F.2d 1131,
1133 (9th Cir. 1974) (police falsely claimed that burglary had
been reported); McCall v. People, 623 P.2d 397, 399 (Colo. 1981)
(police falsely told defendants’ parents that he was a witness and
not a suspect, then entered to arrest him), overruled by People v.
Davis, 187 P.3d 562 (Colo. 2008); People v. Daugherty, 514 N.E.2d
228, 230-231 (Ill. App. Ct. 1987) (officer’s sole purpose was to
search for marijuana, and he had “no reason” to investigate the
theft he claimed to be pursuing); Commonwealth v. Slaton, 608 A.2d
5, 6-7 (Pa. 1992) (officers previously gave “affirmative
assurances * * * that [defendant] was not the focus of” their
6
19
extent petitioners assert (Pet. 10) that the court of appeals’
decision
conflicts
with
a
“well
established
rule”
previously
recognized within the Eleventh Circuit itself, that assertion does
not suggest that this Court’s review is warranted.
See Wisniewski
v. United States, 353 U.S. 901, 902 (1957) (per curiam) (“It is
primarily the task of a Court of Appeals to reconcile its internal
difficulties.”).
3.
In any event, this case would be an unsuitable vehicle
to consider the relevance of police deception to the voluntariness
of a consent search.
As petitioners acknowledge (Pet. 10), the
district court found denial of petitioners’ suppression motion to
be warranted for the additional, independent reason that the
challenged evidence was admissible based on Spivey’s oral and
written consent.
See Pet. App. 40a, 43a.
As the district court explained, although the time between
Austin’s consent and Spivey’s consent was only “about one hour,”
intervening circumstances had “severed” any causal connection
between the two.
Pet. App. 40a, 43a; cf. United States v. Delancy,
502 F.3d 1297, 1308-1314 (11th Cir. 2007) (applying attenuation
factors set forth in Brown v. Illinois, 422 U.S. 590, 603-604
(1975), to determine voluntariness of consent to search following
investigation); State v. Bailey, 417 A.2d 915, 917 (R.I. 1980)
(officer asked to use the telephone, then arrested defendant);
State v. Schweich, 414 N.W.2d 227, 228-230 (Minn. Ct. App. 1987)
(defendant consented to search for firearm, yet police continued
search even after firearm was located).
20
allegedly unlawful protective sweep).
As particularly relevant
here, by the time of his consent, Spivey had been made fully aware
that the officers’ primary purpose was to investigate a possible
credit-card fraud scheme based in petitioners’ house.
Pet. App.
71a-72a, 195a-197a. And at that time, Spivey continued to disclaim
all knowledge of or involvement in the fraud, which suggests that
his consent was a strategic effort to escape further suspicion
rather than a reflection of his belief that any objection would be
futile.
See ibid.
The court of appeals did not reach this issue, instead resting
its affirmance on the determination that Austin’s initial consent
to search was voluntary.
Pet. App. 20a.
Nonetheless, because
Spivey’s consent affords an independent basis for affirming the
denial of petitioners’ motion to suppress, see Gov’t C.A. Br. 3953, any error by the court in its evaluation of Austin’s consent
would not affect the ultimate outcome of the case.
21
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JOHN P. CRONAN
Acting Assistant Attorney General
ELIZABETH H. DANELLO
Attorney
MAY 2018
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.