S.D. N.Y.: Missing child ruse to gain entry to look around invalidated entry and consents

Use of a ruse of looking for a missing girl invalidated defendant’s consent to enter his hotel room to look around. Once inside, officers asked for consent to look for weapons, and then looked in a bag and found heroin which led to defendant’s indictment. The court distinguished other valid ruses from this one. United States v. Montes-Reyes, 547 F. Supp. 2d 281 (S.D. N.Y. 2008) (PACER link):

Based on the facts found at the April 7 hearing and the Fourth Amendment standards described above, the consent Montes-Reyes gave to Agent Luna cannot be considered voluntary, as the “missing girl” ruse used by Agent Luna created a false sense of exigent circumstances similar to that raised in a “gas leak” scenario. The Government’s attempts to distinguish these two scenarios are unavailing.

First, the Government emphasizes that, unlike a ruse involving a gas leak, Agent Luna’s ruse did not lead Montes-Reyes to believe that his own safety was at risk. The message conveyed, however, by Agent Luna’s misrepresentation and his display of the “Endangered Missing” poster — i.e., that a four-year-old girl is lost and, necessarily, in serious danger — must be considered no less alarming. A false claim of a missing child is precisely the kind of “extreme” misrepresentation of investigatory purpose by which a person is “deprive[d] … of the ability to make ‘a fair assessment of the need to surrender his privacy.” LaFave et al., Criminal Procedure § 3.10(c). Indeed, federal law and the laws of all fifty states recognize both that the problem of missing children is a profoundly serious one and that private persons may be counted on to assist law enforcement in locating such children. See Prosecutorial Remedies and Other Tools To End the Exploitation of Children Today (PROTECT) Act of 2003, tit. III, Pub. L. No. 108-21, 117 Stat. 650, 660-67 (providing federal standards and oversight for the AMBER Alert system used to find missing children); Press Release, Dep’t of Justice, AMBER Alert Plans in Place in All 50 States (Feb. 17, 2005), available at http://www.amberalert.gov/newsroom/pressreleases/ojp_05_0217.htm (“No matter where a child is missing, concerned Americans stand ready to help.”). Thus, the fact that it was the four-year-old girl pictured on the flier and not Montes-Reyes himself that was supposedly endangered is of little significance.

Second, the Government argues that Montes-Reyes knew that there was no girl is his room, and thus he could have withheld his consent safe in the knowledge that he was not thereby endangering anyone. To the contrary, Montes-Reyes would have had every reason to believe that his failure to consent to the search would hinder or delay the efforts to resolve safely (what appeared to be) a grave emergency about which the authorities were sufficiently concerned that they dispatched a squad of agents to investigate. In such a scenario, the decision to allow the police into the premises cannot be “the product of an essentially free and unconstrained choice.” Schneckloth, 412 U.S. at 225 (citation omitted).

This is not to underestimate the difficulty of “ferreting out those organized criminal activities,” such as drug trafficking, “that are characterized by covert dealings with victims who either cannot or do not protest.” Lewis, 385 U.S. at 210. But, as the Court recognized long ago in Boyd v. United States, 116 U.S. 616 (1886),

[i]t may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely: by silent approaches and slight deviations from legal modes of procedure. … It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.

Id. at 635 (quoted in Schneckloth, 412 U.S. at 228-29). With this admonition in mind, and recognizing the need to “reconcil[e] the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion,” Schneckloth, 412 U.S. at 229, it must be concluded that Montes-Reyes did not “voluntarily” consent to the search of his room.