E.D.N.C.: Some deception to gain entry is permitted, but this one went too far

The government’s ruse that defendant’s name was being used to fraudulently get prescriptions to gain entry into his house made his consent involuntary. United States v. Burch, 2021 U.S. Dist. LEXIS 35265 (E.D. N.C. Feb. 25, 2021):

While some level of deception from law enforcement is permitted, such as with undercover agents, the government’s deceitful tactics must not prevent the suspect from making a voluntary choice. See, e.g., Bumper v. North Carolina, 391 U.S. 543, 550 (1968). Voluntary consent is impossible when the government creates an inherently coercive interaction by misrepresenting the nature of its investigation—in particular, when the agent fabricates a need for urgent action and participation on the part of the suspect. See Whalen v. McMullen, 907 F.3d 1139, 1147 (9th Cir. 2018) (finding consent involuntary when a CDIU agent identified himself as a law enforcement agent and requested assistance in a fictitious investigation); PagOn-Gonzalez v. Moreno, 919 F.3d 582, 597 (1st Cir. 2019) (finding consent involuntary when based on agents’ representations that government computers in Washington, D.C. were receiving signals or viruses from a computer at defendant’s location); United States v. Parson, 599 F. Supp. 2d 592, 603-05 (W.D. Pa. 2009) (finding consent involuntary when agents told suspect that he might have been an identity theft victim); United States v. Bosse, 898 F.2d 113, 115 (9th Cir. 1990) (finding consent involuntary when agent entered home under false pretense that he was a state licensing official).

Here, agents from the NCSBI showed up unannounced at Mr. Burch’s door and told him that his name was being fraudulently used to procure prescription drugs unlawfully. Given the inherent data security and public safety implications of the government’s ruse, Mr. Burch did what any reasonable person would do—he trusted the government’s representations and attempted to assist them. Indeed, not doing so supposedly would have risked continued theft of his identity and proliferation of unlawful prescription drugs. The government cannot gain consent by preying on its citizens’ trust and sense of duty to assist law enforcement. The government’s conduct here was particularly repugnant, as the ruse targeted defendant in his own home. Mr. Burch’s “consent” to the warrantless entrance of his home was not voluntary. The government’s entrance into his home was therefore unreasonable and in violation of the Fourth Amendment. Defendant’s motion to suppress is granted. All statements made by Mr. Burch or Ms. Carter during the June 15, 2017 interview, and all evidence derived therefrom, are suppressed from evidence.

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