CA10: Deception def was victim of ID theft didn’t make encounter less consensual; officers really wanted to talk about CP

Officer’s deception defendant was the victim of online identify theft did not make his consensual encounter with the officers involuntary. Then they told him it was about child pornography. United States v. Dates, 2018 U.S. App. LEXIS 27983 (10th Cir. Oct. 3, 2018):

Next, Dates points to the agents’ use of deception as turning the encounter from consensual to a seizure. However, the deception does not change our conclusion. The question is whether the agents’ false statements would have made a reasonable person feel unable to “decline the [agents’] requests or otherwise terminate the encounter.”

Bostick, 501 U.S. at 436. We conclude that the agents’ false statements implying that Dates was a putative victim of online identity fraud rather than a criminal suspect would not have conveyed to the reasonable person that they were not free to leave. Indeed, unlike false statements that incriminate the suspect, see, e.g., Oregon v. Mathiason, 429 U.S. 492, 495-96 (1977) (falsely telling the suspect that his fingerprints were found at a crime scene); Frazier v. Cupp, 394 U.S. 731, 737-38 (1969) (falsely telling the suspect that his confederate has confessed), the agents’ purported ignorance of Dates’s criminal activity would, if anything, make the reasonable person feel greater freedom to terminate the encounter.

Dates does not identify any precedent where deception by law enforcement turned a consensual encounter into a Fourth Amendment seizure. Instead, Dates cites cases such as United States v. Harrison, 639 F.3d 1273 (10th Cir. 2011), which involves whether a defendant has voluntarily consented to a warrantless search, id. at 1278. For example, in Harrison, we held that a defendant’s consent to search was involuntary where officers deceived the defendant into thinking that they needed access to his apartment to search for a bomb. See id. at 1281. Under such circumstances, we concluded, the defendant could “deny consent to search and accept the risk that a bomb had been planted in the apartment,” or “consent to search.” Id. at 1280. Consent under those circumstances could not be deemed to be voluntary. Id. Here, Dates has waived his voluntariness argument by not raising it before this court. See supra n.1. We therefore find these cases inapposite. More fundamentally, Dates does not argue that the agents’ deception would render a reasonable person unable to terminate the encounter, which is the pertinent inquiry in this case.

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