There seems to be a good bit of misinformation and speculation about whether or not the police can lie to you or deliberately mislead you during the course of an investigation. The answer, like most legal answers, is not as simple as a yes or no, but rather “sometimes” or “depends.”
Earlier this year, the 11th Circuit Court of Appeals ruled in Spivey & Austin v. U.S., no. 15-15023. In this case, Spivey and Austin lived together and ran a large credit card fraud operation out of their home. They were also burglarized. Twice. By the same guy, who burglarized them twice because there was so much good merchandise in their home that he couldn’t get it all the first time. When this guy, Hunt, was caught, in an attempt to mitigate his own punishment, he told the police that while he was in the Spivey/Austin household he noticed evidence of credit card fraud.
Later, two officers showed up at the house under the pretext that they were there to investigate the burglary. This wasn’t entirely false, but wasn’t the primary reason for them being there, and they probably wouldn’t have gone without the fraud investigation. They also flat out lied and said that one of the officers was a crime scene tech. This officer pretended to check for fingerprints. Spivey and Austin took the officers around the house through the path of the burglar, and showed them some security video of the burglary. This video was ultimately used in the prosecution of the burglary. While the officers were there, they saw the same evidence the burglar saw, and finally blew their own cover. They told Spivey and Austin that they had enough to get a warrant (they probably did) and a waiver was signed. The house was searched, and the evidence was found.
Spivey and Austin tried to get the evidence suppressed, saying that their consent was invalid because the police lied to them.
The trial court, and then later the appellate court said, to sum up, “So what?”
Deception is ok in some circumstances. The whole idea of an undercover officer, for example, is deception at is most deceptive. The undercover officer pretends not to be a police officer, and gains entry, say, into the drug dealer’s home to buy drugs. The fact that the drug dealer let the undercover officer in his home only because he thought the officer was a crackhead has nothing to do with the consent.
So how is this different? Or is it? The Appellate Court said that “because Austin made a strategic choice to report the burglary and admit the officers into her home” the officer’s initial entry was valid. It doesn’t matter, says the court, what kind of nefarious or deceptive purpose the police had in mind. What is relevant, from a consent standpoint, is the mindset of the person giving consent. So, from Austin’s point of view, she calls the police to say her home has been burglarized. She does this – twice! — knowing full well that her home is chock full of evidence of credit card fraud. Several days later, officers show up to investigate the burglary and, although she hides some of the credit card evidence in the oven, there is enough in plain sight for the officers to get an eyeful while they are there. The officer’s lie about why they were there had nothing to do with coercing Spivey or Austin into letting them in. They were in fact burglarized, and they did in fact ask the police to help them catch the burglar. The officers are not required to make known their motivations.
Of course, that isn’t to say that officers can lie about anything and everything. For example, they can’t say, “If you let me in the judge will go easy on you.” Likewise, if an officer said he had authority that he did not, such as “I have a warrant and can search even if you don’t do it the easy way” would not fly. If the officer lied about exigent circumstances, that would also not work. For example, “Quick! Let me in! Someone just reported they planted a bomb in your back bedroom!” would be a lie that would negate consent.
So, the answer isn’t clear, but the basic advice is: if you have credit card stamping machines on your dining room table, don’t call the police to come to your house and then complain that the police saw the machines. Seems kind of obvious to me.
Nothing in this article should be construed as legal advice. It is being offered for informational purposes only. No lawyer can advise you about your case without hearing the particularized details of your personal situation.