CA11: Defs running a CC fraud operation calling the police to report a burglary of their place consented to entry when the police showed up to investigate them but said they were CSIs

Defendants were involved in credit card fraud. They were the victims of a burglary, and the burglar snitched them off. The police were called to investigate the burglary and these investigators came as a ruse that they were crime scene investigators but were really investigating the defendants. Because the defendants had called the police, and planned a cover story for their incriminating stuff, their consent to entry was not involuntary or mere acquiescence to police authority. United States v. Spivey, 2017 U.S. App. LEXIS 11476 (11th Cir. June 28, 2017):

This appeal presents the question whether deception by law enforcement necessarily renders a suspect’s consent to a search of a home involuntary. Chenequa Austin and Eric Spivey shared a home and a penchant for credit-card fraud. And they both became crime victims. Their home was twice burgled, which each time they reported to the police. Two officers, one posing as a crime-scene technician, came to their house on the pretense of following up on the burglaries, but mainly, unbeknownst to them, to investigate them for suspected fraud. The police had already caught the burglar who, in turn, had informed the police that Austin and Spivey’s house contained evidence of credit-card fraud. Spivey hid some incriminating evidence in the oven before Austin invited the officers inside. The couple then provided the officers video footage of the burglary and led the officers through their home. After the officers saw a card-embossing machine, stacks of cards, and a lot of high-end merchandise in plain view, they informed Spivey that they investigated credit-card fraud. Spivey then consented to a full search that turned up a weapon, drugs, and additional evidence of fraud. Austin and Spivey moved to suppress all evidence obtained as a result of the officers’ “ruse.” The district court denied the motion to suppress because it found that Austin’s consent to the initial search was voluntary and, alternatively, that Spivey’s later consent cured any violation. Austin and Spivey each pleaded guilty to several offenses, conditioned on the right to pursue this appeal of the denial of their motion to suppress. Because Austin made a strategic choice to report the burglary and to admit the officers into her home, the district court did not clearly err in finding that Austin’s consent was voluntary. We affirm.

. . .

After it considered the totality of the circumstances, the district court correctly determined that Austin’s consent was voluntary. The factors other than deceit all point in favor of voluntariness. Austin was not handcuffed or under arrest when she gave her consent. See Garcia, 890 F.2d at 360-62. She invited the officers inside the home and volunteered video footage of the burglary. The encounter was polite and cooperative, and the officers used no signs of force, physical coercion, or threats. See United States v. Espinosa-Orlando, 704 F.2d 507, 513 (11th Cir. 1983). The officers did not inform Austin that she had the right to refuse consent, but they were not required to do so. Schneckloth, 412 U.S. at 248- 49. And a warning is even less relevant in this context because it is easier to refuse consent when the police are offering to help than when they initiate an adversarial relationship. The district court found that the consent was “intelligently given.” And “significantly,” Chemaly, 741 F.2d at 1352 (citation omitted), Austin believed that no incriminating evidence would be found-or at least, nothing she and Spivey had not prepared to explain away.

The “ruse” did not prevent Austin from making a voluntary decision. Austin and Spivey informed the police of the burglaries and invited their interaction. The officers did not invent a false report of a burglary, nor claim any authority that they lacked. Agent Iwaskewycz testified that he and Lanfersiek never promised Austin that “[w]e’re just here to investigate a burglary; anything else we see, we’re gonna ignore.” Austin knew that she was interacting with criminal investigators who had the authority to act upon evidence of illegal behavior. There is no evidence that Austin felt that she was required to help with the burglary investigation or that she needed to consent to avoid her inevitable prosecution. From Austin’s perspective, her ability to consent to the search of an area where she knew there was evidence of illegal activity was not dependent on whether the officers provided no explanation or a partial explanation of their intentions. “[M]otivated solely by the desire” to retrieve her stolen property, Austin consented to the officers’ entry and search “at h[er] own peril.” Cf. Perkins, 496 U.S. at 298.

And perhaps most significant of all, Austin and Spivey engaged in intentional, strategic behavior, which strongly suggests voluntariness. Although Austin and Spivey were victims of one crime and suspects of another, the district court reasoned, “[t]hieves usually don’t report that the property that they stole has been stolen.” The district court found that Austin and Spivey enlisted the officers’ assistance to recover their property. Austin “wanted to cooperate” because “expensive shoes had been stolen,” and Spivey was “willing to risk exposure to credit[-]card prosecution to get his property back.” Before allowing the officers into their home, they hid the most damning piece of evidence in the oven. And Austin and Spivey gave a rehearsed story to explain the device that remained visible. This prior planning proves that Austin and Spivey understood that asking for the officers’ assistance came with the risk that their own crimes would be discovered. Austin’s behavior does not evoke fear or good-faith reliance, but instead suggests that she sought to gain the benefit of police assistance without suffering potential costs. The more Austin behaved strategically, the more her behavior looked like a voluntary, rational gamble, and less like an unwitting, trusting beguilement. Although the plan to involve police to recover their stolen goods may not have been the best one, voluntariness does not require that criminals have perfect knowledge of every fact that might change their strategic calculus. Nor does it require that “consent [be] in the[ir] best interest.” United States v. Berry, 636 F.2d 1075, 1081 (5th Cir. Unit B 1981).

When we view the evidence in the light most favorable to the judgment, Austin’s consent was not “granted only in submission to a claim of lawful authority.” Schneckloth, 412 U.S. at 233 (citations omitted). We agree with the district court that under the totality of the circumstances, “the government has shown by clear and positive testimony that the consents were voluntary, unequivocal, specific, intelligently given, and uncontaminated by duress or coercion.”

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