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Eleventh Circuit Holds Defendants Voluntarily Consented to Search in Police Ruse to Search Home Purportedly to Investigate Burglary

by David Reutter

The U.S. Court of Appeals for the Eleventh Circuit upheld a warrantless home search that was consented to as a result of a ruse by law enforcement to obtain evidence of credit card fraud under the guise of investigating a burglary of the home.

On two occasions, Caleb Hunt burglarized the home of Chenequa Austin and Eric Spivey. The first burglary was reported to police by Spivey. The second time, Hunt tripped a newly installed security alarm. After responding to the audible alarm, police caught Hunt. He informed them the residence was the site of substantial credit card fraud, and “had so much high-end merchandise in it that he [burgled] it twice.”

The South Florida Organized Fraud Task Force became involved. U.S. Secret Service Special Agent Jason Lanfersiek and about 10 others held a planning session, during which they “made a decision to come up with the methodology of employing [a] ruse,” when they pretended “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,” dissenting Judge Martin wrote.

 Austin invited Lantersiek and Lauderhill Police Department Detective Alex Iwaskewycz into the apartment to investigate the burglary. Lantersiek wore a police jacket and pretended to be a crime scene investigator conducting fingerprint dusting, a ruse he then used to access various parts of the home. The officers saw evidence of credit card fraud in plain view, including a credit card embossing machine, stacks of credit cards and gift cards, and large quantities of expensive merchandise, such as designer shoes and iPads.

The offers separated Austin and Spivey. When Iwaskewycz took Austin outside and informed her of the real reason they were there, Austin became uncooperative. Iwaskewycz had a warrant check made on her, and when an active warrant was uncovered, she was taken to jail. Meanwhile, Spivey agreed to a search of the home.

Subsequently, Austin and Spivey pleaded guilty to conspiracy to commit access-device fraud and possess device-making equipment. They reserved the right to appeal the denial of a motion to dismiss based upon the deceit to obtain consent to search.

The Eleventh Circuit affirmed the district court’s order that Austin and Spivey made a gamble that they could prosecute the burglaries and continue to hide their credit card fraud. As the district court observed, “Thieves usually don’t report that the property that they stole has been stolen.”

In affirming, the appellate court held the officers’ ruse did not prevent the defendants from making a voluntary decision to allow them into the home and look around. The Court observed it is settled law that the “subjective motivation of the officers is irrelevant. Consent is about what the suspect knows and does, not what the police intend.” It further explained that “[c]oercion is determined from the perspective of the suspect.”

The defendants intentionally and strategically allowed the officers into their home in hopes of having them solve the home burglary and return the stolen items. In doing so, they took the calculated risk that the officers would discover evidence of their own crimes. The totality of circumstances established that the consent to enter their home and the subsequent search were voluntary. The Eleventh Circuit affirmed the judgments of conviction and the sentences of the defendants. See: United States v. Spivey, 861 F.3d 1207 (11th Cir. 2017). 

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