Officers had information that defendant had received child porn, and they used a ruse that he was the victim of identity theft to get access to his computer. While they were looking at his computer with him there, the officers encountered a locked file, and he gave up the password. When a CP image was seen, he asked whether that was illegal to possess, and the officers said they weren’t looking for that, which was false. The motion to suppress was granted. United States v. Parson, 599 F. Supp. 2d 592 (W.D. Pa. 2009):<\/p>\n
The government claims that the identity theft introduction is defensible in that it was literally truthful and accurate. The Court disagrees, and disapproves of this “literal truth” defense. Given the function and purpose of verbally expressed language, a communicative phrase such as that uttered by Agent Stitzel simply cannot be defined absent its context. In this matter, the phrase was uttered by an ICE agent on the doorstep of a poor and intimidated senior citizen. Yet the government somehow claims that the phrase was not misleading because it is literally true. In essence, the government argues “who knows, after all, whether Parson was a victim of identity theft–we all might be?” This venture into abstraction is inappropriate.<\/p>\n
Rather, the Court finds that this language must be assessed in its context, including its speaker, the setting, and the listener. Agent Stitzel spoke the phrase for one purpose: to convey to Parson that he was a victim of identity theft. Agent Stitzel did not convey to Parson that it was only a remote possibility that he was a victim of identity theft. Imagine a conversation in front of a soda machine, wherein Officer A asks Officer B: “Hey, do you have an extra quarter?” Under the government’s reasoning, Officer B would interpret the phrase literally, respond “yes”, and walk off. However, the remainder of society, and this Court, if responding for Officer B, would intuit from shared norms and the circumstances of the situation that Officer A, despite the literal meaning of the words within his query, is in fact asking to borrow a quarter.<\/p>\n
In short, this Court concludes that the language used by the agents on the doorstep was deceptive and deliberately misleading. Hence, the visit became problematic from a Fourth Amendment perspective the moment that the agents misled Parson into believing that he was a victim of identity theft. Parson invited the officers into his home as a direct consequence of the representation that he was a victim of a crime. This invitation to entry, then, was certainly not the voluntary act of someone knowingly agreeing to concede privacy interests.<\/p>\n
. . .<\/p>\n
c. The Agents’ Misrepresentations Violated Widely Shared Social Expectations<\/strong><\/p>\n
The agents’ lies and trickery in this matter violated widely shared social expectations. The Supreme Court instructed that in assessing consent for Fourth Amendment purposes, great significance should be given to “widely shared social expectations.” Georgia v. Randolph, 547 U.S. 103, 111, 126 S. Ct. 1515, 1521, 164 L. Ed. 2d 208, 220 (2006). Numerous cases establish that government misrepresentation as to the purpose of the visit, or the scope of the investigation violates widely shared social expectations.<\/p><\/blockquote>\n
Officers had information that defendants were selling marijuana to high schoolers. They came to the house and did a knock-and-talk and could smell burning marijuana, and that led to an admission that the occupants were just smoking marijuana inside. Officers could enter to secure the premises while a warrant was sought. They did a protective sweep on entry, but not a search until the warrant arrived. The situation was not manipulated by officers. United States v. Perez, 2009 U.S. Dist. LEXIS 15073 (D. Utah February 25, 2009):<\/p>\n
The Court also concludes that entry was clearly supported by circumstances which were not abused or subject to manipulation. When Agents arrived at the residence they had no way of knowing that the encounter with Ms. Perez would proceed as it did. The odor of burnt marijuana and Ms. Perez’s admissions about marijuana having been smoked in the house minutes earlier along with the possibility that marijuana or a drug pipe might be found in the residence are not indicators that were subject to manipulation or abuse. The Court also agrees with the United States that Ms. Perez created the exigency by refusing to comply with Agent Tribe’s command to remain on the porch, retreating inside the house, and trying to close the door behind her, thus preventing Agent Tribe from monitoring her actions inside the house.<\/p>\n
In sum, the Court is satisfied that the United States has met its burden of proof that the fear of evidence being imminently destroyed created an exigent circumstance justifying the warrantless entry into Defendant’s residence. Having reached that conclusion, the Court need not, and does not, address the alternative exigency theories of children safety or hot pursuit argued by the United States.<\/p><\/blockquote>\n
The magistrate here had a substantial basis for probable cause to believe that a gun would be found in defendant’s house based on defendant’s admissions, police observations and investigation, and a CI’s story that had a factual basis and basis of knowledge. United States v. Miller, 2009 U.S. Dist. LEXIS 15092 (E.D. Pa. February 24, 2009).*<\/p>\n","protected":false},"excerpt":{"rendered":"
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