Defendant\u2019s wife consented to entry of Customs officers in a child pornography investigation. She testified she believed they were looking into some national security offense, and they did not immediately disabuse her of belief. Defendant\u2019s providing the password to the computer and then standing over the officer\u2019s shoulder while the computer was perused was indicative of implied consent. United States v. Pollaro, 733 F. Supp. 2d 364 (E.D. N.Y. 2010):<\/p>\n
The court finds that the Agents accurately represented themselves from the beginning as DHS\/ICE agents, and did not attempt to mask their identity. (Tr. 70). Although Mrs. Pollaro testified to have interpreted the Agents’ statements to mean there was an issue of national security at hand, the agents made no statements confirming or denying this presumption. (Tr. 71). Moreover, Mrs. Pollaro never testified regarding her suspicions regarding a potential national security issue aloud, giving the agents no reason to know of (or correct) her erroneous belief. Rather, the agents merely informed Mrs. Pollaro of the nature of their visit – to investigate suspicious activity on her home computer, including the possibility of child exploitation, — and the evidence is clear that she willingly assisted them in their undertaking. (Tr. 71).<\/p>\n
Even if the court were to give Defendant the benefit of the doubt, finding that the Agents misrepresented their identities (which they did not), the use of trickery or deception in gaining entry into a dwelling does not by itself necessarily violate a defendant’s Fourth Amendment rights. See, e.g., Lewis v. United States<\/a>, 385 U.S. 206, 87 S. Ct. 424, 17 L. Ed. 2d 312 (1966); United States v. Alejandro<\/a>, 368 F.3d 130, 135 (2d Cir. 2004). In support of this motion, Defendant attempts to compare his situation to that in United States v. Montes-Reyes<\/a>, 547 F. Supp.2d 281 (S.D.N.Y. 2008), where the court held consent to have been invalid. There, however, the court’s holding as to the invalidity of the consent was based upon the agent’s representation that entry was necessary in connection with the searching for a missing child. See Montes-Reyes, 547 F. Supp.2d at 287-91. The court was careful to distinguish between cases in which “the kind of extreme’ misrepresentation of investigatory purpose by which a person is ‘deprive[d]\u2026 of the ability to make ‘a fair assessment of the need to surrender his privacy'” and those in which “the deception in question was the use of an undercover agent who obtained otherwise voluntary consent through the use of his adopted identity.” Id. at 288 (citation omitted). Here, even assuming the validity of Mrs. Pollaro’s unspoken conjecture regarding any issue of national security and the presence of agents in her home, such circumstances would not rise to the level of the extreme deception required to render consent invalid. In sum, for the reasons set forth above, the court holds that the consent to enter the Pollaro’s house was valid.<\/p>\n
. . .<\/p>\n
Although not necessary to address, the court addresses Defendant’s argument that the search was unlawful because it was commenced before he signed the written consent form. Factually, the court finds Defendant’s version of the events to be highly unlikely, given the credible testimony of the Agents testifying at the hearing. Even if the court were to accept Defendant’s tenuous claim that the written consent form was signed after the search, Agent Handley’s testimony regarding Defendant’s action during the computer search, i.e., that Defendant turned on the computer for the Agent and stood over the Agent’s shoulder during the search, is conduct that a reasonable officer would interpret as implied consent. (Tr. 14). See Buettner-Janusch, 646 F.2d at 764 (“consent may be inferred from an individual’s words, gestures or conduct”).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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