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Entering defendant’s home under the ruse of investigating a reported burglary not a Fourth Amendment violation

In U.S. v. Spivey, the defendants Spivey and Austin reported to police their home had been burglarized. When the police caught the burglar, he informed them that this residence was the site of substantial credit-card fraud and much high-end merchandise was kept there.

Two South Florida Organized Fraud Task Force members began investigating credit card fraud by the defendants and they went to the residence on the pretext of acting as detectives investigating the two burglaries. The detectives wore a police jacket and displayed a gun and badge. When Austin saw the agents approaching she went inside to warn Spivey and told him to hide the card reader/writer in the oven.

The agents told Austin they were there to follow up on the burglary and Austin invited them in. They told Austin that one of the detectives was a crime scene technician and maintained the façade by pretending to brush for latent fingerprints. Austin led the agents through the house and pointed out their home surveillance video of the burglary. Inside the home the officers observed evidence of fraud including a card embossing machine, stacks of credit cards and gift cards, large quantities of expensive merchandise such as designer shoes and iPads.   They both told the officers that the embossing machine had been left in the apartment before they moved in.

The officers then ended their ruse and told Spivey that they investigated credit-card fraud. After being advised of his rights, he gave written consent to the officers to conduct a full search of the home and of his computer and cell phone. In that search, the officers recovered high end merchandise, drugs, a handgun, and embossing machine, a card reader/writer and about seventy-five counterfeit cards. The defendants were indicted and both challenged the search with a motion to suppress all the evidence found on the grounds of a Fourth Amendment violation. The district court denied the motion and the defendants appealed.

In this appeal, the defendants raise the question of whether deception by law enforcement renders a suspect’s consent to search of a home involuntary. The Eleventh Circuit court of appeals held that it does not because the defendant made a strategic choice to report the burglary and to admit the officer into her home.

The court of appeals held that deception will invalidate consent when the police claim an authority that they lack as in the case of an officer falsely professing to have a warrant or when an officer lies about the existence of exigent circumstances. However, the Fourth Amendment allows some police deception so long as the police are not overbearing.

Here the appellate court found in this federal criminal case that the search was valid under the totality of the circumstances. The officers’ ruse did not prevent the defendant from making a voluntary decision to inviting who she knew to be the officers into her house for the purpose of investigating and actual burglary that she reported. The burglary investigation was a legitimate reason for being there, though not the main or real reason. The defendants allowed them in knowing that the officers had the authority to act upon finding the evidence of illegal behavior and knowing there was a risk the officers would see the illegal activity.