D.Conn.: Use of a partial ruse to get in the door quickly turned to the subject of the investigation; consent was voluntary on totality

Defendant was under investigation for attempting to buy a firearm as a convicted felon in a gun store. The police came to visit him and used the excuse of defendant’s prior assault claim. It was somewhat misleading when they got access to his house, but they were straightforward when the questions started. Therefore, the “stratagem or deception” was not ultimately misleading, and the consent was still voluntary because it was clear he understood he was under investigation for firearms offenses. United States v. Peterson, 2018 U.S. Dist. LEXIS 197514 (D. Conn. Nov. 20, 2018):

Furthermore, even if the officers had informed Peterson prior to entering his home that they wanted to speak with him about his reported robbery and assault, the court would still determine that Peterson voluntarily consented to the officers’ presence in his home. The Second Circuit has held that it is generally permissible for law enforcement to use “stratagem or deception” to obtain evidence without a warrant. United States v. Alejandro, 368 F.3d 130, 135 (2d Cir. 2004) (internal quotation marks omitted), supplemented, 100 F. App’x 846 (2d Cir. 2004). Thus, “the use of trickery or deception in gaining entry into a dwelling does not by itself necessarily violate a defendant’s Fourth Amendment rights.” United States v. Pollaro, 733 F. Supp. 2d 364, 368 (E.D.N.Y. 2010). Instead, law enforcement’s use of deception is a factor that courts should consider when determining from the totality of all the circumstances whether “a defendant’s will was overborne in a particular case[.]” Schneckloth, 412 U.S. at 226; see also United States v. Monzon-Luna, No. 11-CR-722 S-4 RRM, 2013 U.S. Dist. LEXIS 166735, 2013 WL 6175818, at *5 (E.D.N.Y. Nov. 22, 2013) (“[T]he use of trickery and deception by law enforcement officers does not itself require or preclude a finding that an authorized person voluntarily consented to a search. Rather, the totality of all circumstances – including, naturally, the nature of the deception used — must still be considered in determining whether such consent was voluntarily given.”) (internal quotation marks omitted).

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Moreover, to the extent that the officers did misrepresent the purpose of their visit, there is no evidence to suggest that this misrepresentation deprived Peterson of the ability to voluntarily consent to the officers’ presence in his home. Even after Peterson learned that the officers were investigating him for firearms offenses, neither he nor his mother ever raised any objection to the officers’ presence in their home. Indeed, Peterson permitted SA Brackett to accompany him as he searched different rooms of his home for the trigger lock keys. Moreover, Peterson, as a 28 year-old barber who also earned income by repairing iPhones and preparing taxes for people, clearly had the capacity to understand that he was under investigation. While Peterson expressed confusion about certain aspects of the officers’ investigation, such as how the investigation related to his robbery and assault, Peterson’s statements demonstrate that he fully understood that the officers were investigating him for firearms offenses. Thus, given the totality of all the circumstances, the court finds that Peterson voluntarily consented to the officers entering into and remaining in his home.