A three-judge panel of the 11th Circuit, the Atlanta-based federal appeals court, in U.S. v. Eric Jermaine Spivey et al. has upheld a police search defendants had challenged as “shocking,” even though police used deception to obtain the residents’ consent to search their home.
Eric Spivey and Chenequa Austin lived in Lauderhill, Florida, and ran a lucrative operation making and using bogus credit cards. Stored in the house they shared was high-end merchandise they obtained fraudulently, plus equipment and materials used to produce fake cards. After their home was burglarized, they filed a police report, and had a home security system installed.
When the same thief later burglarized their home again, Spivey and Austin filed another police report, and gave police video footage of the intruder taken by their new home security system. When local police arrested a suspect for the burglaries, he informed them of the extensive evidence of credit-card fraud he had observed in the home, saying the wealth of high-end merchandise had led him to re-burglarize the same house.
That drew the interest of the South Florida Organized Fraud Task Force, which decided to investigate the residents of the twice-burgled home. On the pretext of doing further investigation of the burglaries (and without informing the residents a suspect was already in custody, much less what their suspect had told them), the Task Force dispatched two investigators to the home: a local police detective and a special agent from the U.S. Secret Service, which is not authorized to investigate local burglaries but enforces federal financial crime laws, including those on credit-card fraud.
On the visit, the Secret Service agent was identified to Spivey and Austin as a crime-scene technician. He wore a local police jacket and pretended to dust for the burglar’s fingerprints. The residents invited the investigators inside and took them through the house, enabling them to observe much other evidence of card fraud, including card-making equipment and stacks of credit and debit cards.
Indicted by a federal grand jury, the residents tried to have that evidence excluded, pointing to the cops’ deception in posing as burglary investigators to gain consent for their search. After a federal district court rejected that argument, the issue went to the three-judge appeals panel. Circuit Judge William H. Pryor Jr., an Alabaman appointed by President George W. Bush and mentioned by President Trump as a possible Supreme Court nominee, wrote the 2-1 majority opinion sustaining the lower court’s ruling.
The Fourth Amendment’s ban on unreasonable searches and seizures, Pryor wrote, does not apply when a defendant has voluntarily consented to a search, and even though the investigators misled Spivey and Austin about who they were and why they were there, the residents had allowed the search without coercion. Voluntary consent turns not on police motives, but rather on defendants’ mental state. Just as confessions are allowed under the Fifth Amendment even when police use non-coercive deceit in questioning, police use of deception to gain consent to a search does not automatically invalidate that consent. But another panel member, Circuit Judge Beverly B. Martin, a Georgian appointed by President Barack Obama, vigorously dissented, arguing investigators could easily have gotten a search warrant, and allowing such deception “undermines the public trust in police.”
Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, (Middle Street Publishing, 2017), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014). He regularly contributes to The Huffington Post, New York Daily News, and Prison Legal News. He can be found online at ChristopherZoukis.com, PrisonEducation.com and Prisonerresource.com.