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First Circuit: FBI’s Ruse Claiming National Emergency to Obtain Consent to Search Held Unlawful

by Douglas Ankney

The U.S. Court of Appeals for the First Circuit held that a search wherein FBI agents lied about an emergency in order to gain consent to search a suspect’s computers violates the Fourth Amendment.

On October 23, 2013, ten FBI agents arrived at the home shared by David Pagan-Gonzalez (“Pagan”) and his parents. Special Agent Ana Moreno told Pagan they were there because a modem in a computer located in the house was “sending a signal and/or viruses to computers in Washington [DC].” But the FBI was actually there because an agent had downloaded child pornography from a computer the agents believed was located at that address, and they were there to investigate. The agents asked for consent to inspect Pagan’s computers. They stated they would either fix the computer that was sending signals to Washington, or they would provide a replacement at the Government’s expense. Pagan and his parents signed consent forms permitting a search of the computers.

After inspecting two computers, agents took Pagan’s laptop. It was examined by the FBI’s Computer Analysis Response Team. Numerous images of child pornography were recovered. Pagan was arrested and ultimately indicted. He filed a suppression motion, arguing the FBI’s ruse as to the purpose of the search vitiated his consent. Consequently, the warrantless search violated the Fourth Amendment. The Government dismissed the charges.

Pagan and his parents filed suit pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging, inter alia, an illegal search. The district court dismissed the suit, and Pagan appealed. On appeal, the defendants argued the dismissal of the search-related claim should be upheld because the agent’s ruse was constitutionally permissible.

The First Circuit observed that the U.S. Supreme Court has “consistently held that the entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant.” Steagald v. United States, 451 U.S. 204 (1981). But there are several limited exceptions, including a defendant’s consent to search. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Consent is a jealously guarded and carefully drawn exception to the warrant requirement, and the Government bears the burden of proving consent. Id. Courts evaluate voluntariness under the totality of the circumstances and must take into account “any evidence that law enforcement officers’ fraud, deceit, trickery, or misrepresentation prompted defendant’s acquiescence to the search.” United States v. Vanvliet, 542 F.3d 259 (1st Cir. 2008).

The Court examined cases where such deception was constitutionally permitted, e.g., undercover agents posing as drug buyers to gain entry into a home. In such a case the individual voluntarily assumed the risk of inviting individuals whom he knows he cannot control into his home. Hoffa v. United States, 385 U.S. 293 (1966). The Court contrasted that with cases where deception was not constitutionally permissible. First, agents may not falsely claim to have a valid warrant because this coerces the suspect into believing he has no right to refuse the search. Bumper v. North Carolina, 391 U.S. 543 (1968). Second, coercion is present when law enforcement falsely proclaims exigent circumstances exist that require urgent action in order to gain consent to search. For example, officers may not tell occupants that a bomb exists inside an apartment in order to gain entry. United States v. Harrison, 639 F.3d 1273 (10th Cir. 2011).

The Court concluded that the FBI’s lie induced Pagan to believe a computer inside his residence was causing a national emergency. Washington is the seat of the nation’s government. Operating under such a false belief, his consent was not voluntarily given. Accordingly, the Court reversed the district court’s judgment as to this issue and remanded for further proceedings consistent with its opinion. See: Pagán-González v. Moreno, 919 F.3d 582 (1st Cir. 2019). 

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