E.D.N.Y.: Use of an innocuous ruse to aid LEOs locate stolen cell phone was still valid consent to enter

The use of a relatively innocuous ruse to gain entry to defendant’s room was not unconstitutional. The officers did not exploit a made up exigent circumstance; rather, it was asking for help locating a stolen cell phone and to look out the window. Therefore, the consent to enter was valid. United States v. Monzon-Luna, 2013 U.S. Dist. LEXIS 166735 (E.D. N.Y. November 22, 2013), reconsideration denied 2014 U.S. Dist. LEXIS 7415 (E.D. N.Y. January 21, 2014):

Where “the police misrepresentation of purpose is so extreme, a person is deprive[d] … of the ability to make a fair assessment of the need to surrender his privacy,” however, “the resulting consent should not be considered valid.” Id. (quoting Wayne R. LaFave et al., Criminal Procedure § 3.10(c) (3d ed. 2007)). For example, in Montes-Reyes, the defendant allowed law enforcement officers claiming to be searching for a missing girl to enter his room in order to look for the child. See 547 F. Supp. 2d at 283. Upon entry, the officers asked to search the defendant’s belongings, found narcotics, and arrested the defendant. Id. at 284. The court granted the defendant’s motion to suppress because the ruse “created a false sense of exigent circumstances” and was an extreme misrepresentation of investigatory purpose that deprived the defendant of his ability to assess the need to surrender his privacy. Id. at 291. Similarly, in United States v. Giraldo, 743 F. Supp. 152, 153 (E.D.N.Y. 1990), police officers gained entry to the defendant’s apartment by claiming to be gas company workers checking for gas leaks. Upon entry, the officers identified themselves as police officers, asked for the defendant’s identity, and obtained permission to search the apartment. Id. The officers arrested the defendant after finding narcotics. Id. The court granted the defendant’s motion to suppress because the defendant’s “‘[c]onsent’ was obtained by falsely inducing fear of an imminent life-threatening danger.” Id. at 154.

Unlike the ruses in Montes-Reyes and Giraldo, however, the ruse that the agents employed here was innocuous. A search for a stolen cell phone is wholly distinguishable from a search for a missing child or an imminent gas explosion. Although the ruse misrepresented the true purpose of the agents’ visit and capitalized on Monzon-Luna’s desire to assist law enforcement, it did not create a false sense of exigent circumstances that deprived the defendant of his ability to assess the need to surrender his privacy. The agents here presented the most innocuous of scenarios, and carried it out in a low-key way. This was hardly the type of ruse that would deprive an individual “of the ability to make a fair assessment of the need to surrender his privacy.” United States v. Montes-Reyes, 547 F. Supp. 2d at 291; see also United States v. Pollaro, 733 F. Supp. 2d 364, 368-69 (E.D.N.Y. 2010) (finding that, even if search were represented as being related to “national security,” “such circumstances would not rise to the level of the extreme deception required to render consent invalid.”).