               Case: 15-15023       Date Filed: 06/28/2017       Page: 1 of 35


                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 15-15023
                               ________________________

                         D.C. Docket No. 0:15-cr-60082-WPD-2


UNITED STATES OF AMERICA,

                                                                         Plaintiff - Appellee,
                                            versus

ERIC JERMAINE SPIVEY,
CHENEQUA AUSTIN,

                                                                   Defendants - Appellants.

                               ________________________

                     Appeals from the United States District Court
                         for the Southern District of Florida
                            ________________________

                                       (June 28, 2017)

Before WILLIAM PRYOR, MARTIN, and BOGGS, * Circuit Judges.

WILLIAM PRYOR, Circuit Judge:




*
 Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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      This appeal presents the question whether deception by law enforcement

necessarily renders a suspect’s consent to a search of a home involuntary.

Chenequa Austin and Eric Spivey shared a home and a penchant for credit-card

fraud. And they both became crime victims. Their home was twice burgled, which

each time they reported to the police. Two officers, one posing as a crime-scene

technician, came to their house on the pretense of following up on the burglaries,

but mainly, unbeknownst to them, to investigate them for suspected fraud. The

police had already caught the burglar who, in turn, had informed the police that

Austin and Spivey’s house contained evidence of credit-card fraud. Spivey hid

some incriminating evidence in the oven before Austin invited the officers inside.

The couple then provided the officers video footage of the burglary and led the

officers through their home. After the officers saw a card-embossing machine,

stacks of cards, and a lot of high-end merchandise in plain view, they informed

Spivey that they investigated credit-card fraud. Spivey then consented to a full

search that turned up a weapon, drugs, and additional evidence of fraud. Austin

and Spivey moved to suppress all evidence obtained as a result of the officers’

“ruse.” The district court denied the motion to suppress because it found that

Austin’s consent to the initial search was voluntary and, alternatively, that Spivey’s

later consent cured any violation. Austin and Spivey each pleaded guilty to several


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offenses, conditioned on the right to pursue this appeal of the denial of their motion

to suppress. Because Austin made a strategic choice to report the burglary and to

admit the officers into her home, the district court did not clearly err in finding that

Austin’s consent was voluntary. We affirm.

                                 I. BACKGROUND

      Caleb Hunt twice burgled the Lauderhill, Florida, home of Chenequa Austin

and Eric Spivey. Spivey reported the first burglary to the police. The second time,

Hunt tripped a newly installed security system. Austin spoke with the police about

the second burglary when officers responded to the audible alarm. When the police

caught Hunt, he informed them that the residence was the site of substantial credit-

card fraud. Indeed, Hunt told the police that the home “had so much high-end

merchandise in it that he [burgled] it twice.”

      Two members of the South Florida Organized Fraud Task Force then

became involved. Special Agent Jason Lanfersiek works for the United States

Secret Service investigating financial crimes, including credit-card fraud. Detective

Alex Iwaskewycz works for the Lauderhill Police Department. The Task Force

decided to have Lanfersiek and Iwaskewycz investigate Austin and Spivey’s

suspected fraud.




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      The district court found that Lanfersiek and Iwaskewycz went to the

residence “on the pretext of following up on two burglaries, which was a legitimate

reason for being there, but not the main or real reason.” Iwaskewycz displayed a

gun and a badge. Lanfersiek wore a police jacket. Austin saw the agents

approaching and went inside to warn Spivey and tell him to hide the card

reader/writer in the oven. When the agents told Austin they were there to follow up

on the burglary, Austin invited them in. The officers told Austin that Lanfersiek

was a crime-scene technician for the police department, and Lanfersiek maintained

the façade by pretending to brush for latent fingerprints. Austin led Lanfersiek and

then Iwaskewycz through the house to the master bedroom, following the burglar’s

path. Spivey showed Iwaskewycz home-surveillance video of the burglary. A

detective assigned to the burglary investigation later used that video evidence to

help prosecute Hunt. Inside the home, both officers observed evidence of fraud,

including a card-embossing machine, stacks of credit cards and gift cards, and

large quantities of expensive merchandise such as designer shoes and iPads. Austin

and Spivey separately told the officers that the embossing machine had been left in

the apartment before they moved in. Iwaskewycz arrested Austin on an unrelated

active warrant and removed her from the scene.




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      The officers then ended their ruse and told Spivey that they investigated

credit-card fraud. Nevertheless, Spivey remained cooperative. After being advised

of his rights, he signed two forms giving his consent to the officers to conduct a

full search of the home and a search of his computer and cell phone. In that search,

officers recovered high-end merchandise, drugs that field-tested positive as

MDMA, a loaded handgun, an embossing machine, a card reader/writer (found

inside the oven), and at least seventy-five counterfeit cards.

      After a federal grand jury returned an indictment against them, Austin and

Spivey moved to suppress all evidence procured as a result of the officers’ “entry

into Austin’s residence . . . by fraud . . . which vitiated any consent.” The district

court denied the motion to suppress and rejected a “bright line rule that any

deception or ruse vitiates the voluntariness of a consent-to search.” The district

court explained, “Austin wanted to cooperate in solving the burglaries; expensive

shoes had been stolen.” The district court found that “Spivey thought he could talk

his way out of a predicament and was willing to risk exposure to credit[-]card

prosecution to get his property back. Thieves usually don’t report that the property

that they stole has been stolen.” And “any problem with [Austin’s] initial consent

was cured by Spivey’s later signing a written waiver of a search warrant.” It

determined that “the government has shown by clear and positive testimony that


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the consents were voluntary, unequivocal, specific, intelligently given, and

uncontaminated by duress or coercion.”

      Both Austin and Spivey conditionally pleaded guilty. Austin pleaded guilty

to conspiracy to commit access-device fraud and possess device making-

equipment, 18 U.S.C. § 1029(b)(2), and aggravated identity theft, id.

§ 1028A(a)(1). Spivey pleaded guilty to conspiracy to commit access device fraud

and possess device-making equipment, id. § 1029(b)(2), aggravated identity theft,

id. § 1028A(a)(1), and being a felon in possession of a firearm, id. § 922(g)(1).

Both pleas reserved the right to appeal the denial of the motion to suppress. The

district court sentenced Austin to thirty-six months in prison and three years of

supervised release and Spivey to seventy months in prison and three years of

supervised release.

                         III. STANDARD OF REVIEW

      “A denial of a motion to suppress involves mixed questions of fact and law.

We review factual findings for clear error, and view the evidence in the light most

favorable to the prevailing party. We review de novo the application of the law to

the facts.” United States v. Barber, 777 F.3d 1303, 1304 (11th Cir. 2015) (citations

omitted). Voluntariness is “a question of fact,” Schneckloth v. Bustamonte, 412

U.S. 218, 227 (1973), that we may disturb only if clearly erroneous, United States


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v. Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984). “Normally, we will accord the

district judge a great deal of deference regarding a finding of voluntariness, and we

will disturb the ruling only if we are left with the definite and firm conviction that

the trial judge erred.” United States v. Fernandez, 58 F.3d 593, 596–97 (11th Cir.

1995) (citation omitted). But we will review de novo the district court’s application

of the law about voluntariness to uncontested facts. See United States v. Garcia,

890 F.2d 355, 359–60 (11th Cir. 1989) (explaining that because “we believe[d] that

the trial court[’s]” “decision was based on the application of what he believed to be

the existing law as applied to the uncontroverted facts,” we “review[ed] the judge’s

finding of voluntariness de novo”).

                                 IV. DISCUSSION

      The Fourth Amendment provides that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no warrants shall issue, but upon probable

cause.” U.S. Const. Amend. IV. A search is reasonable and does not require a

warrant if law enforcement obtain voluntary consent. Schneckloth, 412 U.S. at 222.

The parties agree that Austin consented to the search, so the sole question on

appeal is whether her consent was voluntary.




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      “A consensual search is constitutional if it is voluntary; if it is the product of

an ‘essentially free and unconstrained choice.’” United States v. Purcell, 236 F.3d

1274, 1281 (11th Cir. 2001) (quoting Schneckloth, 412 U.S. at 225). Voluntariness

is “not susceptible to neat talismanic definitions; rather, the inquiry must be

conducted on a case-by-case analysis” that is based on “the totality of the

circumstances.” United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989) (citing

Schneckloth, 412 U.S. at 224–25). Relevant factors include the “voluntariness of

the defendant’s custodial status, the presence of coercive police procedure, the

extent and level of the defendant’s cooperation with police, the defendant’s

awareness of his right to refuse to consent to the search, the defendant’s education

and intelligence, and, significantly, the defendant’s belief that no incriminating

evidence will be found.” Chemaly, 741 F.2d at 1352 (citation omitted).

      Deceit can also be relevant to voluntariness. Because we require “that the

consent was not a function of acquiescence to a claim of lawful authority,” Blake,

888 F.2d at 798, deception invalidates consent when police claim authority they

lack. For example, when an officer falsely professes to have a warrant, the consent

to search is invalid because the officer “announces in effect that the occupant has

no right to resist the search. The situation is instinct with coercion—albeit

colorably lawful coercion.” Bumper v. North Carolina, 391 U.S. 543, 550 (1968).


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And when an officer lies about the existence of exigent circumstances, he also

suggests that the occupant has no right to resist and may face immediate danger if

he tries. See, e.g., United States v. Harrison, 639 F.3d 1273 (10th Cir. 2011)

(agents falsely implied that a bomb was planted in the apartment they sought to

search). Deception is also likely problematic for consent if police make false

promises. See United States v. Watson, 423 U.S. 411, 424 (1976) (“There were no

promises made to him and no indication of more subtle forms of coercion that

might flaw his judgment.”); cf. Alexander v. United States, 390 F.2d 101, 110 (5th

Cir. 1968) (“We do not hesitate to undo fraudulently induced contracts. Are the

disabilities here less maleficent?”).

      In the tax context, we have ruled that when a taxpayer asked whether a

“special agent” was involved in the investigation and the Internal Revenue Service

answered “no,” consent was involuntary because it was induced by an official

misrepresentation that suggested the investigation was only civil, not criminal.

United States v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977). Contrary to the dissent’s

assertion that “consent searches are almost always unreasonable” when induced by

deceit, Dissenting Op. at 26 (citing Tweel, 550 F.2d at 299), we have never applied

this decision outside the administrative context, let alone to a situation in which the

suspect is aware of the criminal nature of the investigation. This limitation makes


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sense in the light of the rule that police officers are permitted to obtain a confession

through deception under the Fifth Amendment. See Illinois v. Perkins, 496 U.S.

292, 297 (1990) (“Ploys to mislead a suspect or lull him into a false sense of

security that do not rise to the level of compulsion or coercion to speak are not

within Miranda’s concerns.”); see also United States v. Peters, 153 F.3d 445, 463

(7th Cir. 1998) (Easterbrook, J., concurring) (“If a misunderstanding of one’s

status as a target—misunderstanding abetted by calculated silence and half-truths

from agents and prosecutors—does not invariably make a statement involuntary,

why should it make a disclosure of physical evidence involuntary?”).

      The Fourth Amendment allows some police deception so long the suspect’s

“will was [not] overborne,” Schneckloth, 412 U.S. at 226. Not all deception

prevents an individual from making an “essentially free and unconstrained choice,”

id. at 225. For example, undercover operations do not invalidate consent. Lewis v.

United States, 385 U.S. 206, 206–07 (1966). When an undercover agent asks to

enter a home to buy drugs, the consent is voluntary despite the agent’s

misrepresentations about his identity and motivation. Id. “If dissimulation so

successful that the suspect does not know that he is talking to an agent is

compatible with voluntariness, how could there be a rule that misdirection by a

known agent always spoils consent?” Peters, 153 F.3d at 464 (Easterbrook, J.,


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concurring). Although we distinguish undercover investigations from those where

the officer is “seeking . . . cooperation based on his status as a government agent,”

United States v. Centennial Builders, Inc., 747 F.2d 678, 682 (11th Cir. 1984), an

individual who interacts with officers undertakes a knowing risk that the officers

may discover evidence of criminal behavior. Cf. United States v. Wuagneux, 683

F.2d 1343, 1348 (11th Cir. 1982) (“[A]ll taxpayers, especially businessmen, are

presumed to be aware of th[e] possibility” “that a routine civil audit may lead to

criminal proceedings if discrepancies are uncovered.”). That “fraud, deceit or

trickery in obtaining access to incriminating evidence can make an otherwise

lawful search unreasonable,” United States v. Prudden, 424 F.2d 1021, 1032 (5th

Cir. 1970) (emphasis added), does not mean that it must. Particularly because

physical coercion by police is only one factor to be considered in the totality of the

circumstances, see Chemaly, 741 F.2d at 1352, we should approach psychological

coercion the same way. The district court correctly stated the law when it

explained that deception does not always invalidate consent.

      Austin and Spivey argue that the officers’ deception was egregious because

the purpose of the ruse was to mislead them into believing that the officers were

there to “assist them,” not to “bust them.” They argue that a “ruse” about whether




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Austin was the target of the investigation is worse than misrepresentations about

whether an investigation is civil or criminal. We disagree.

      We cannot say that it was clear error for the district court to find that,

although the burglary investigation was “not the main or real reason” for the

search, it was “a legitimate reason for being there.” Iwaskewycz testified that it

was a “dual-purpose investigation.” And the district court found that “the

videotape was eventually used in the burglary investigations.” Austin argues that

the stated purpose “was nothing more than a ‘pretext’” because one agent had the

“exclusive purpose” and the other had the “primary purpose” “to investigate the

report of a credit-card plant,” but even this argument concedes that at least one of

the officers had a dual purpose. What matters is the existence of a legitimate reason

to be there, not the priority that the officers gave that reason.

      The subjective motivation of the officers is irrelevant. Consent is about what

the suspect knows and does, not what the police intend. “Coercion is determined

from the perspective of the suspect.” Illinois v. Perkins, 496 U.S. 292, 296 (1990).

Whether officers “deliberately lied” “does not matter” because the “only relevant

state of mind” for voluntariness “is that of [the suspect] himself.” United States v.

Farley, 607 F.3d 1294, 1330 (11th Cir. 2010). And officers are entitled to be silent

about their motivations. See Prudden, 424 F.2d at 1033 (“[T]he agents did not have


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to warn him directly that they were undertaking a criminal investigation.”). The

officers’ subjective purpose in undertaking their investigation does not affect the

voluntariness of Austin’s consent. See Farley, 607 F.3d at 1330–01.

      Pretext does not invalidate a search that is objectively reasonable. Cf. Whren

v. United States, 517 U.S. 806, 814 (1996) (“[T]he Fourth Amendment’s concern

with ‘reasonableness’ allows certain actions to be taken in certain circumstances,

whatever the subjective intent.”); Heien v. North Carolina, 135 S. Ct. 530, 539

(2014) (“We do not examine the subjective understanding of the particular officer

involved.”). As long as the officers are engaging in “objectively justifiable

behavior under the Fourth Amendment,” Whren, 517 U.S. at 812, their subjective

intentions will not undermine their authority to stop or search, or in this appeal, to

ask for consent to search. Responding to a burglary report is objectively justifiable

behavior, and we must ask only whether the officers prevented Austin from

making a free and unconstrained choice.

      Stripped of its subjective purposes, the officers’ “ruse” was a relatively

minor deception that created little, if any, coercion. The officers admittedly

misrepresented Agent Lanfersiek’s identity, but there is no evidence that his exact

position within the hierarchy of criminal law enforcement was material to Austin’s

consent. Wuagneux held that even though the agent did not reveal that he was a


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part of a strike force, the suspect’s knowledge that the agent worked for the

Internal Revenue Service and was empowered to conduct a tax audit was sufficient

for consent. 683 F.2d at 1347–48. Austin likewise knew that Agent Lanfersiek was

involved in criminal investigations and was going to search her home. Austin

understood that she faced a risk that Lanfersiek would notice evidence of the

credit-card fraud when she consented to his presence in her home. His identity is

material only to the subjective purpose of the investigation. The dissent argues that

Agent Lanfersiek misrepresented his legal authority because the Secret Service

does not have the authority to enforce a state burglary offense, Dissenting Op. at

28–29, but that misrepresentation did not lead Austin to believe that Lanfersiek

could investigate without her consent or that Lanfersiek would not act upon

evidence of criminal activity. And Lanfersiek acted within the scope of his

authority to investigate credit-card fraud and was accompanied by an officer with

the authority to investigate both burglaries and fraud. Pretending to be a crime-

scene technician and to dust for fingerprints was perhaps silly and unnecessary, but

it was relatively insignificant.

      After it considered the totality of the circumstances, the district court

correctly determined that Austin’s consent was voluntary. The factors other than

deceit all point in favor of voluntariness. Austin was not handcuffed or under arrest


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when she gave her consent. See Garcia, 890 F.2d at 360–62. She invited the

officers inside the home and volunteered video footage of the burglary. The

encounter was polite and cooperative, and the officers used no signs of force,

physical coercion, or threats. See United States v. Espinosa-Orlando, 704 F.2d 507,

513 (11th Cir. 1983). The officers did not inform Austin that she had the right to

refuse consent, but they were not required to do so. Schneckloth, 412 U.S. at 248–

49. And a warning is even less relevant in this context because it is easier to refuse

consent when the police are offering to help than when they initiate an adversarial

relationship. The district court found that the consent was “intelligently given.”

And “significantly,” Chemaly, 741 F.2d at 1352 (citation omitted), Austin believed

that no incriminating evidence would be found—or at least, nothing she and

Spivey had not prepared to explain away.

      The “ruse” did not prevent Austin from making a voluntary decision. Austin

and Spivey informed the police of the burglaries and invited their interaction. The

officers did not invent a false report of a burglary, nor claim any authority that they

lacked. Agent Iwaskewycz testified that he and Lanfersiek never promised Austin

that “[w]e’re just here to investigate a burglary; anything else we see, we’re gonna

ignore.” Austin knew that she was interacting with criminal investigators who had

the authority to act upon evidence of illegal behavior. There is no evidence that


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Austin felt that she was required to help with the burglary investigation or that she

needed to consent to avoid her inevitable prosecution. From Austin’s perspective,

her ability to consent to the search of an area where she knew there was evidence

of illegal activity was not dependent on whether the officers provided no

explanation or a partial explanation of their intentions. “[M]otivated solely by the

desire” to retrieve her stolen property, Austin consented to the officers’ entry and

search “at h[er] own peril.” Cf. Perkins, 496 U.S. at 298.

      And perhaps most significant of all, Austin and Spivey engaged in

intentional, strategic behavior, which strongly suggests voluntariness. Although

Austin and Spivey were victims of one crime and suspects of another, the district

court reasoned, “[t]hieves usually don’t report that the property that they stole has

been stolen.” The district court found that Austin and Spivey enlisted the officers’

assistance to recover their property. Austin “wanted to cooperate” because

“expensive shoes had been stolen,” and Spivey was “willing to risk exposure to

credit[-]card prosecution to get his property back.” Before allowing the officers

into their home, they hid the most damning piece of evidence in the oven. And

Austin and Spivey gave a rehearsed story to explain the device that remained

visible. This prior planning proves that Austin and Spivey understood that asking

for the officers’ assistance came with the risk that their own crimes would be


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discovered. Austin’s behavior does not evoke fear or good-faith reliance, but

instead suggests that she sought to gain the benefit of police assistance without

suffering potential costs. The more Austin behaved strategically, the more her

behavior looked like a voluntary, rational gamble, and less like an unwitting,

trusting beguilement. Although the plan to involve police to recover their stolen

goods may not have been the best one, voluntariness does not require that

criminals have perfect knowledge of every fact that might change their strategic

calculus. Nor does it require that “consent [be] in the[ir] best interest.” United

States v. Berry, 636 F.2d 1075, 1081 (5th Cir. Unit B 1981).

      When we view the evidence in the light most favorable to the judgment,

Austin’s consent was not “granted only in submission to a claim of lawful

authority.” Schneckloth, 412 U.S. at 233 (citations omitted). We agree with the

district court that under the totality of the circumstances, “the government has

shown by clear and positive testimony that the consents were voluntary,

unequivocal, specific, intelligently given, and uncontaminated by duress or

coercion.”

      Austin and Spivey make two additional arguments based on precedent, both

of which fail. First, they rely on the statement that “[i]ntimidation and deceit are

not the norms of voluntarism. In order for the response to be free, the stimulus


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must be devoid of mendacity.” Alexander, 390 F.2d at 110. But this statement is

dicta and arose in a materially different context. In Alexander, postal inspectors

illegally detained an employee suspected of mail theft. They then admittedly

“misle[d]” the defendant by telling him they were investigating mail theft,

particularly jewelry, when what they really sought were marked dollar bills they

had placed in his mail. Id. at 102–03, 110. We held that compliance with

“disingenuous questioning” by the police did not “purg[e] the taint of the illegal

arrest.” Id. at 110. Austin’s consent, in contrast, did not have to overcome any

previous taint. Second, Austin and Spivey rely on a decision that expressed

concern with “allow[ing] the state to secure by stratagem what the fourth

amendment requires a warrant to produce.” Graves v. Beto, 424 F.2d 524, 525 (5th

Cir. 1970). But this decision involved the scope of consent, not the voluntariness of

consent. See id. at 525 n.2. In Graves, the police requested a blood sample and the

suspect refused. Id. at 525. The suspect consented only after the police said the

sample would be used to determine his alcohol content, but the police nevertheless

ran a test to compare his blood type with blood sample from the scene of a rape.

Writing for our predecessor Court, Judge Wisdom interpreted the consent as

limited to the blood-alcohol test because individuals can place boundaries on their

consent. Id.


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      Even if Austin and Spivey had framed their appeal as a question of the scope

of consent, Judge Wisdom’s approach in Graves cuts in favor of the government.

To the extent the officers lied, we would not “void the consent as to the purpose for

which it was given,” but instead “simply limit the state to the purposes

represented.” Id. at 525 n.2. We could attempt to limit Austin’s consent to the

burglary investigation, but unlike in Graves, the two police purposes do not align

with divisible searches. If the scope of consent is about physical space,

investigating the burglary and the credit-card fraud both involve looking in the

living room and master bedroom. Austin gave “unequivocal” and “specific”

consent to the physical presence of police in those spaces. The agents did not enter

additional parts of the home irrelevant to the burglary, secretly film, or run any

fraud-specific tests. Cf. Gouled v. United States, 255 U.S. 298, 309 (1921) (holding

it unconstitutional to secretly ransack an office and seize papers when allowed into

the home on the false representation that the officer was there for a social visit).

The incriminating evidence was in plain view.

      If the scope of Austin’s consent were limited by police intent, then the

officers had two legitimate purposes for the search. Judge Wisdom distinguished

evidence acquired “in good faith for a legitimate purpose,” Graves, 424 F.2d at

525 n.1, as evidence that could be used for another purpose. And if the police had


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come to the home with the sole purpose of investigating the burglary, the district

court found that “it is highly likely that he would have seen most of the same

incriminating evidence in plain view.” After all, even Hunt, the burglar, was

suspicious.

      Not all deception by law enforcement invalidates voluntary consent. Austin

and Spivey deride the “shocking” nature of the “misconduct” in this case, but we

are “not empowered to forbid law enforcement practices simply because [we]

consider[] them distasteful.” Florida v. Bostick, 501 U.S. 429, 439 (1991). The

district court did not clearly err in determining that the “ruse” did not coerce

Austin into giving her consent involuntarily.

      Because the initial search was supported by Austin’s voluntary consent, it

did not violate the Fourth Amendment. And because the initial search was

constitutional, we do not reach any question about Spivey’s later consent and the

fruit of the poisonous tree. We affirm the denial of the motion to suppress.

                                 V. CONCLUSION
      We AFFIRM the judgments of conviction and the sentences of Austin and

Spivey.




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MARTIN, Circuit Judge, dissenting:

      The Majority describes this case as raising the question of whether

“deception by law enforcement” during the search of a home violates the Fourth

Amendment of the United States Constitution. Among other things, the Fourth

Amendment protects the “right of the people to be secure in their [] houses,” and

requires that warrants allowing a home to be searched, issue “upon probable cause,

supported by Oath or affirmation.” The two officers here had no warrant allowing

their entry into the home of Eric Spivey and Chenequa Austin. Instead, they had a

plan to get around the Fourth Amendment’s protections. They lied about their

legal authority. They lied about their real reason for being there. And they took

advantage of a public trust in law enforcement in order to search the Spivey/Austin

home without a warrant. When Ms. Austin learned the true purpose of the

officers’ presence in her home, she stopped cooperating immediately. Based on all

the circumstances of her case, it is clear to me that Ms. Austin’s permission for the

officers to enter her home was not voluntarily given.

      This litigation could have easily been avoided. Instead of planning their

ruse, the officers could have gotten a warrant. We know that “[w]ith few

exceptions, the question whether a warrantless search of a home is reasonable and

hence constitutional must be answered no.” Kyllo v. United States, 533 U.S. 27,


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31, 121 S. Ct. 2036, 2042 (2001) (Scalia, J.). There is no exception that fits this

case. I am concerned that the Majority opinion blesses the deliberate

circumvention of constitutional protections, and in this way undermines the public

trust in police. I therefore dissent.

                                 I. BACKGROUND

      There is no dispute about the facts here. The two officers who conducted the

search, Special Agent Lanfersiek and Detective Iwaskewycz, both testified at a

suppression hearing, and told us what happened. I will add some detail taken from

their testimony, which is necessary to fully understand why this search was not

lawful.

      The Majority opinion misses the fact that Agent Lanfersiek and Detective

Iwaskewycz deliberately planned how to circumvent the Fourth Amendment’s

general requirement that they get a warrant before searching someone’s home.

Agent Lanfersiek testified that instead of getting a warrant, he and about ten other

officers held a planning session during which they “made a decision to come up

with the methodology of employing the ruse.” They decided to pretend to

investigate burglaries that had already been solved, as a way to get consent to enter

the home and search for evidence of credit-card fraud. To avoid suspicion, they

also came up with the idea of Agent Lanfersiek dressing up as a crime-scene


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technician. Agent Lanfersiek is a Special Agent of the U.S. Secret Service, and in

that job had no authority to investigate a local burglary. Neither, apparently, did he

know how to dust for fingerprints. Nevertheless, this ploy, together with the

costume he wore, gave him cover. Wearing his costume, he went through the

Spivey/Austin home pretending to dust for fingerprints, asking for and receiving

permission from Ms. Austin to go into areas of the home she likely would not have

otherwise let him see. The officers hoped they would be able to see evidence of

credit-card fraud in plain view. And if they did, they planned on using the

evidence they had seen to get consent to search the rest of the home. In the event

this plan did not work, the officers had an assistant state attorney on standby ready

to get a search warrant.

      There is also more to the order of events here than the Majority opinion

includes. The officers testified that when they arrived at Ms. Austin’s home, she

was “genuinely excited,” “relieved,” and “happy” they were there to follow-up on

the reported burglaries of her home. Agent Lanfersiek asked Ms. Austin to show

him where the burglar entered the house so he could dust for fingerprints. She did.

After pretending to dust the door, he asked Ms. Austin where else the burglar had

gone. She said the bedroom, and Agent Lanfersiek asked to go there. Ms. Austin

took him into the bedroom, where Agent Lanfersiek asked if she would open the


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drawers to the bedside tables. Again, Ms. Austin complied. Agent Lanfersiek

asked where else the burglar had gone. Ms. Austin replied the bathroom and closet

areas, so he went to see those as well.

      Agent Lanfersiek saw evidence of credit-card fraud in plain view in these

different areas. He and Det. Iwaskewycz then decided to separate Mr. Spivey and

Ms. Austin and talk to them individually. This is where the ruse ended. Det.

Iwaskewycz went outside with Ms. Austin and explained to her that he was really

there to investigate credit-card fraud. He asked about the evidence in the bedroom.

Ms. Austin gave some unconvincing answers. As a result, Det. Iwaskewycz

decided Ms. Austin was not likely to cooperate and provide the consent to the full

search he and Agent Lanfersiek wanted. So he called a colleague to run a check on

Ms. Austin. He discovered there was an unrelated outstanding warrant for Ms.

Austin’s arrest. Ms. Austin was promptly arrested.

                          II. STANDARD OF REVIEW

      Although voluntariness is usually a question of fact, the parties do not

dispute the facts and both rely solely on the testimony of the government’s

witnesses. In a case like this, our review is de novo. United States v. Valdez, 931

F.2d 1448, 1451–52 (11th Cir. 1991); United States v. Garcia, 890 F.2d 355, 359–

60 (11th Cir. 1989).


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                                III. DISCUSSION

      The Fourth Amendment generally prohibits officers from searching a

person’s home without a warrant. Payton v. New York, 445 U.S. 573, 586, 100 S.

Ct. 1371, 1380 (1980) (“[S]earches and seizures inside a home without a warrant

are presumptively unreasonable.”). One exception to the warrant requirement is

where the person voluntarily gives consent for the officers to search. Illinois v.

Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 2797 (1990). The question before

us here is whether Ms. Austin’s consent for the officers to search her home was

voluntary.

A. VOLUNTARINESS PRECEDENT

      Consent is voluntary “if it is the product of an ‘essentially free and

unconstrained choice.’” United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir.

2001) (quoting Schneckloth, 412 U.S. at 225, 93 S. Ct. at 2047). We evaluate

whether a consensual search was voluntary by examining the “totality of the

circumstances” in each case. United States v. Yeary, 740 F.3d 569, 581 (11th Cir.

2014). It is the government’s burden to prove both that consent was given and that

it was “given freely and voluntarily.” Id. (quotation omitted).

      In analyzing the totality of the circumstances, there is no one factor that

controls. Schneckloth, 412 U.S. at 226, 93 S. Ct. at 2047. Instead this Court


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recognizes several important factors to consider “including the presence of

coercive police procedures, the extent of the defendant’s cooperation with the

officer, the defendant’s awareness of his right to refuse consent, the defendant’s

education and intelligence, and the defendant’s belief that no incriminating

evidence will be found.” Purcell, 236 F.3d at 1281.

       This Court has also said that consent searches are almost always

unreasonable when government agents induce consent by “deceit, trickery or

misrepresentation.” United States v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977).1 In

Tweel, for example, the defendant was audited by the IRS. Id. at 298. The

defendant wanted to know whether the IRS interest in him was related to a civil or

a criminal case, so his accountant asked whether a special agent was involved. See

id. The IRS truthfully replied that no special agent was involved, but purposefully

did not say that the inquiry was being made on behalf of the Organized Crime and

Racketeering Section of the Department of Justice. Id. Because of that deliberate

omission, this Court said the “investigation was a sneaky deliberate deception” that

rendered the defendant’s consent involuntary. Id. at 299. 2



       1
          In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.
        2
          The Majority says this Court has “never applied [Tweel] outside the administrative
context, let alone to a situation in which the suspect is aware of the criminal nature of the
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       Eleventh Circuit precedent about consenting to a search emphasizes that the

use of deception to get consent violates the Fourth Amendment because it is an

“abuse” of the public’s trust in law enforcement. See id.; see also SEC v. ESM

Gov’t Sec., Inc., 645 F.2d 310, 316 (5th Cir. Unit B May 18, 1981). For example,

in ESM, this Court said:

       We believe that a private person has the right to expect that the

       government, when acting in its own name, will behave honorably.

       When a government agent presents himself to a private individual,

       and seeks that individual’s cooperation based on his status as a

       government agent, the individual should be able to rely on the agent’s

       representations. We think it clearly improper for a government agent

       to gain access to [evidence] which would otherwise be unavailable to

       him by invoking the private individual’s trust in his government, only

       to betray that trust. When that government agency then invokes the




investigation.” Maj. Op. at 9 (emphasis added). But three of my colleagues on this Court did
just that in a recent unpublished decision. See United States v. Jaimez, 571 F. App’x 935, 937
(11th Cir. 2014) (per curiam) (unpublished) (citing Tweel for the proposition that “[w]e have
found that consent ‘induced by deceit, trickery, or misrepresentation’ can render consent
involuntary” in the context of a consent search of a defendant’s home for contraband).
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      power of a court to gather the fruits of its deception, we hold that

      there is an abuse of process.

Id. Thus, Eleventh Circuit precedent requires us to consider whether the public

trust was improperly employed by the officers.

B. THE TOTALITY OF THE CIRCUMSTANCES

      Considering the totality of the circumstances under the standards set by our

precedent, Ms. Austin’s consent was not voluntary. The officers used deceit,

trickery, and misrepresentation to hide the true nature and purpose of their

investigation as well as the authority they had to investigate the burglaries. This

deception caused Ms. Austin to allow the officers into her home. And when the

officers revealed the ruse to Ms. Austin, she immediately stopped cooperating.

      First, the officers got consent from Ms. Austin to enter her home only

through the deliberate misrepresentation of their authority. As the Majority rightly

recognizes, “deception invalidates consent when police claim authority they lack.”

Maj. Op. at 8. Agent Lanfersiek testified that as a federal Secret Service agent, he

was not at the Spivey/Austin home about a burglary. And the government

conceded at oral argument that Agent Lanfersiek, as a federal agent, had no

authority to investigate a local burglary. Knowing that his presence might alert

Ms. Austin to the true purpose of his investigation, Agent Lanfersiek hid his real


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identity. He pretended to be a member of the Lauderhill Police Department and

played the part of a crime-scene technician because that role was best suited to

convince Ms. Austin to allow him into parts of her home she would otherwise have

refused. Agent Lanfersiek’s misrepresentations allowed him to ask Ms. Austin—

without raising suspicion—to show him around her home, let him into her

bedroom, and even open drawers and look inside her closet. In other words, Agent

Lanfersiek lied about his law enforcement authority in order to gain warrantless

access to the most private areas of Ms. Austin’s home. See Tweel, 550 F.2d at

299; see also ESM, 645 F.2d at 316 (“When a government agent presents himself

to a private individual, and seeks that individual’s cooperation based on his status

as a government agent, the individual should be able to rely on the agent’s

representations.”). Had Ms. Austin known Agent Lanfersiek’s true identity, this

record shows she would not have let him into her home. 3

       Neither was Det. Iwaskewycz there to investigate the burglaries. Although

he was employed by the local police department, his duties did not include

investigating burglaries. Instead, he was assigned to the federally-funded South


       3
         The Majority says that the burglaries were a legitimate reason for the officers to be at
Ms. Austin’s home. Maj. Op. at 11–12. But even setting aside the legal authority issues already
discussed, the fact that other officers might have been able to investigate the burglaries through a
warrantless consent search does not make the consent here voluntary. See Kyllo, 533 U.S. at 35
n.2, 121 S. Ct. at 2043 n.2 (“The fact that equivalent information could sometimes be obtained
by other means does not make lawful the use of means that violate the Fourth Amendment.”).
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Florida Organized Fraud Task Force. The task force paired Secret Service agents

with local detectives to combat financial crimes in the Southern District of Florida.

Det. Iwaskewycz had been assigned to this task force for several years. And he

testified that although the case of the burglary of the Spivey/Austin home was still

technically an open file, he knew the burglar had been caught and confessed to

burglarizing the Spivey/Austin home. He also testified that the case had been

officially closed by the neighboring police department that caught the burglar.

Thus, even aside from the fact that Det. Iwaskewycz’s job did not include

investigating burglaries, he would not have been at the Spivey/Austin home for

that reason anyway. The burglary was already solved. This record shows he lied

about why he was at the home and about who Agent Lanfersiek was. See ESM,

645 F.2d at 316.

      Second, the officers methodically planned their deception. Well in advance

of the search, Agent Lanfersiek convened a team of about ten law enforcement

officers to make a plan which would circumvent the Fourth Amendment’s warrant

requirement. This fact also supports the conclusion that Ms. Austin’s consent was

not voluntary. The Supreme Court has told us to be wary of police planning

around constitutional protections. See Missouri v. Seibert, 542 U.S. 600, 617, 124

S. Ct. 2601, 2613 (2004) (holding that “[s]trategists dedicated to draining the


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substance out of” constitutional protections cannot accomplish by planning around

these protections because it “effectively threatens to thwart [their] purpose”). The

Eleventh Circuit has also adhered to this principle. We have refused to “allow the

state to secure by stratagem what the fourth amendment requires a warrant to

produce.” Graves v. Beto, 424 F.2d 524, 525 (5th Cir. 1970).

       Third, and importantly, this record demonstrates that Ms. Austin refused to

cooperate with law enforcement once the officers revealed their true purpose.4

This shows she would not have allowed the officers into her home had they not

lied about their authority and their reason for wanting to get into her house. Before

the officers told her they were there to investigate credit-card fraud, they testified

Ms. Austin was “genuinely excited,” “relieved,” and “happy” they were there to

follow-up on the burglaries—crimes of which Ms. Austin was the victim. Once

the officers’ true purpose was revealed, her demeanor changed so much that Agent

Lanfersiek had a colleague run a check for any outstanding arrest warrants. After



       4
          The Majority says the pretext for investigating the burglary is not relevant. Maj. Op. at
13 (citing Whren v. United States, 517 U.S. 806, 814, 116 S. Ct. 1769, 1775 (1996)). But Whren
was about inquiries into whether probable cause exists, which are made from a law enforcement
officer’s perspective. In contrast, when we decide whether Ms. Austin’s consent was voluntary,
we must consider Ms. Austin’s subjective perspective. The Majority acknowledges this. See
Maj. Op. at 12; Schneckloth, 412 U.S. at 229, 93 S. Ct. at 2049 (noting that “[t]he very object of
the inquiry” in determining voluntariness is “the nature of a person’s subjective understanding”).
The pretext of investigating a burglary was not a “silent” motivation as the Majority says, but
was instead the express reason given to Ms. Austin that led her to let the officers into her home.
Maj. Op. at 12.
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finding one, he arrested Ms. Austin and had her taken to the police station. As this

Court has put it, deceit is not one of “the norms of voluntarism.” Alexander v.

United States, 390 F.2d 101, 110 (5th Cir. 1968). “In order for the response to be

free, the stimulus must be devoid of mendacity.” Id. Ms. Austin’s response, then,

could not have been free, because it was entirely a product of the officers’

untruthfulness.5

       Given these facts, I expected this panel to suppress the search of the

Spivey/Austin home. It is true, as the Majority says, that not all police deception is

unconstitutional.6 Maj. Op. at 10–11. But the police deception here is

unconstitutional because it meant that Ms. Austin’s consent was not knowing and

voluntary. My read of the Majority opinion is that it tries to distinguish the police

deception here from what this Court’s precedent says is unconstitutional conduct,

mainly by relying on two cases: United States v. Wuagneux, 683 F.2d 1343 (11th

Cir. 1982), and United States v. Prudden, 424 F.2d 1021 (5th Cir. 1970). Maj. Op.




       5
          These circumstances show that, contrary to the Majority’s assertion, Agent Lanfersiek’s
position was material to Ms. Austin’s consent. See Maj. Op. at 13–14. His deception and
misrepresentation was not just “perhaps silly,” as the Majority describes it. Id. He lied about his
true legal authority so that the ruse could succeed.
        6
          The Majority provides undercover operations as an example. Maj. Op. at 10–11. This
was not an undercover operation. Indeed, we have specifically distinguished undercover
operations from the type of deceit used here. See United States v. Centennial Builders, Inc., 747
F.2d 678, 682–83 (11th Cir. 1984) (distinguishing undercover investigations from consent to
search “obtained through deception”).
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at 11–14. Although the Majority is again correct that voluntary consent can carry

with it the risk that officers may discover evidence of criminal behavior, see

Wuagneux, 683 F.2d at 1348, we are still required to look to whether the initial

consent was voluntary. In Wuagneux, for example, the defendant knew he was

being investigated by the IRS. See id. The officers here, by contrast, told Ms.

Austin they were there to help her. As a victim of crime, her acceptance of the

officers’ offer of help made sense. But in fact, the officers relied on Ms. Austin’s

trust to manipulate her, and gave no indication that she was actually the one being

investigated. See Tweel, 550 F.2d at 299 (“[T]he agent’s failure to apprise the

[defendant] of the . . . nature of this investigation was a sneaky deliberate

deception . . . .); ESM, 645 F.2d at 316 (“We think it clearly improper for a

government agent to gain access to [evidence] which would otherwise be

unavailable to him by invoking the private individual’s trust in his government,

only to betray that trust.”).7




       7
          The Majority says that a warning of the right to refuse consent is less relevant in this
context “because it is easier to refuse consent when the police are offering to help than when [the
police] initiate an adversarial relationship.” Maj. Op. at 15. The Majority cites no legal
authority for this proposition, and in any event, the government had the burden of proving the
opposite in this case—that had Ms. Austin been aware of the adversarial nature of the
investigation she would still have freely given her consent. This record shows she would not
have.
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      The Majority also points to Prudden to say that not all deception makes a

search unreasonable. Maj. Op. at 11. But Prudden only shows how far the officers

in this case went beyond the line of what’s constitutional. In Prudden, the

government agent “in no way concealed his true identity.” 424 F.2d at 1032. We

simply have a different case here.

                                IV. CONCLUSION

      “It is axiomatic that the physical entry of the home is the chief evil against

which the wording of the Fourth Amendment is directed.” Welch v. Wisconsin,

466 U.S. 740, 748, 104 S. Ct. 2091, 2097 (1984) (quotation omitted). That is why

we presume warrantless searches of the home are unreasonable. Kentucky v. King,

563 U.S. 452, 459, 131 S. Ct. 1849, 1856 (“It is a basic principle of Fourth

Amendment law, we have often said, that searches and seizures inside a home

without a warrant are presumptively unreasonable.” (quotation omitted)). This is

also why the Supreme Court has long incentivized law enforcement to get a

warrant, rather than resort to warrantless entries. See, e.g., Ornelas v. United

States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663 (1996).

      At oral argument, the government was asked why it did not simply get a

warrant, rather than using the ruse to get into the house. The government did not




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say it lacked probable cause. 8 Neither did it say it would have been too

burdensome. Indeed, this record reflects that the officers had an assistant state

attorney on standby in case their ruse did not succeed. What the government said

was that there was “no requirement” to get a warrant.

       The Majority opinion tells police that what happened here is not a problem.

In effect, it teaches police they don’t need to get a warrant so long as they can pre-

plan a convincing enough ruse. This is true even if, as here, that ruse includes

skirting the limits of the officer’s legal authority to investigate only certain crimes.

In doing so, I fear the Majority opinion undermines the public’s trust in the police

as an institution together with the central protections of the Fourth Amendment.

When I read the record in Ms. Austin’s case, I don’t believe this is the

“reasonable” conduct our Founders had in mind when drafting the Fourth

Amendment. I therefore dissent.




       8
         The government also said at oral argument that by Ms. Austin and Mr. Spivey reporting
the burglaries, they had “conscript[ed] the police to be their private collection agency” and
“taken a calculated gamble.” To the extent the government implies it, I reject the idea that by
reporting a crime a person welcomes the warrantless search of her home for other illegal activity.
                                                 35
