Cop Deception Upheld – Sad Day
From last week: According to my good friend and former classmate Charles Bond, an incineration at a funeral home costs, at a minimum, $4500. A traditional funeral costs upwards of $10,000. But burning grandma on a funeral pyre in the backyard is a misdemeanor, with a $1000 fine. Do the math, says Charles.
When cops deceive, is that a bad thing? A South Florida case tested that proposition. Here’s the basic story: A burglar broke into a home and stole a bunch of stuff. It was so lucrative, he did it again. Ultimately he was caught and confessed to the cops. He told the cops that the folks in the home appeared to be engaged in credit card fraud, and they had lots of loot, like new Ipads and designer shoes, which is why he went back. The cops sat around the office and dreamed up a way to get in the house, without being bothered with a search warrant. The scheme developed with the cops going back to the home, one posing as an investigator and one posing as a crime scene technician looking for more evidence of the burglary.
At the front door, the police did nothing to clear up any deception. Since they already had the burglar in custody, their appearance was a ruse. The officers also were not crime scene techs, but were members of the South Florida Organized Fraud Task Force. They were granted permission to enter based on their ruse. The couple even showed the officers their newly installed video system (installed after the first burglary) which had pictures of the burglar in action. The officers then told the couple their true identity and duties, so Defendant Spivey consented to the further search of their home, where the credit cards, embossers and readers were discovered. The couple was then arrested.
Before trial, the couple argued that the search was unlawful due to the deception used by the police.
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. 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. Now, you gotta love an opinion that uses talismanic.
The court went on to say that “The Fourth Amendment allows some police deception so long the suspect’s “will was [not] overborne,” Not all deception prevents an individual from making an “essentially free and unconstrained choice.” So you get the gist of it. The court held, 2-1, that deceiving the defendants was not enough to overcome the consent that had been given already in this case. Austin and Spivey argued “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.” The Court decided that the deception wasn’t that big a deal, and that when a thief gets his stuff stolen by another thief, they should probably not call the police.
Judge Beverly Martin, the former U.S. Attorney for the Middle District of Georgia, saw it differently. “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.”
Trusting your government just took another punch to the gut.