Using a ruse of a missing child to gain entry invalidated the alleged consent. Motion to suppress granted. United States v. Turner, 2020 U.S. Dist. LEXIS 120630 (E.D. Ky. July 9, 2020):
Here, the issue is whether the officers’ story about searching for the missing young white boy to obtain entry into the residence invalidated Ms. Miller’s purported consent. For the reasons that follow, the Court concludes that it did, and therefore, the evidence which was seized subsequent to the invalid consent must be suppressed.
The Court recognizes that a “a ruse or officers’ undercover activity does not usually violate individuals’ rights.” United States v. Hardin, 539 F.3d 404, 424 (6th Cir. 2008). For instance, as the United States points out, an officer’s misrepresentation of his identity does not negate consent. (Doc. # 109 at 5); United States v. Lord, 230 F. App’x 511, 513-14 (6th Cir. 2007) (citing United States v. Pollard, 215 F.3d 643, 648 (6th Cir.2000)). However, “[i]n some instances, a ruse or trick by the police can undermine an otherwise consensual encounter.” United States v. Gregory, 456 F. App’x 533, 536 (6th Cir. 2012) (citing Hardin, 539 F.3d at 424-27). More specifically, when a police officer’s “misrepresentation of purpose [was] so extreme that it deprive[d] the individual of the ability to make a fair assessment of the need to surrender his privacy,” consent is invalidated. Id. at 536 (alterations in original) (quoting Hardin, 539 F.3d at 425). In answering this question, courts must ask “whether the ruse created a scenario where [the individual] ‘ha[d] no choice’ but to concede his privacy interests.” Id. (alterations in original) (citing Hardin, 539 F.3d at 425).
Of course, this determination is highly fact dependent. For instance, in Hardin, following the issuance of an arrest warrant, the police received a tip that the defendant was staying at his girlfriend’s apartment. Hardin, 539 F.3d at 407. The police then instructed the apartment manager to search the apartment for the defendant under the guise of checking for a water leak. Id. The urgency of a water leak, as conveyed through an apartment manager, compelled the defendant to allow entry, and thus, invalidated consent. Id. at 425.