OBTAINING CONSENT TO ENTER BY DECEPTION

              OBTAINING CONSENT TO ENTER BY DECEPTION

                               By

                        John Gales Sauls

                 Special Agent/Legal Instructor

                           FBI Academy

     A delivery service truck pulls to the curb in a residential

neighborhood, and a uniformed delivery man walks to the front

door of a house. The package that he carries bears the address of

the house, but the addressee of the package is not the resident.

He asks the person who answers the door if the addressee is

there, and when told no one of that name lives at the house, the

delivery man asks if he might use the phone to call his company. 

     While being escorted to the phone, the delivery man observes

a "hot box" and other drug trafficking paraphernalia in one of

the rooms. After making his call, he thanks his "host" and

leaves. In a couple of hours, the delivery man and other police

officers will return with a search warrant for the premises,

based in part on what he saw on the covert visit.

     This article discusses the legal considerations of police

officers who conceal their official identities and use deception

to gain admittance to homes and businesses. It first addresses

whether entry into particular classes of premises constitutes a

"search" implicating fourth amendment concerns. The article then

sets forth the requirements of the consent exception to the

fourth amendment warrant requirement, emphasizing the factual

predicate officers must be prepared to produce to establish the

"reasonableness" of their entry and the lawfulness of their

actions.

PLACES OPEN TO THE PUBLIC

     On May 6, 1981, a plainclothes detective entered an adult

bookstore, and after browsing through displayed merchandise for

several minutes, purchased two magazines from a clerk. A short

time later, after determining the magazines to be obscene, the

detective returned to the store and arrested the clerk. In the

prosecution that followed, the clerk moved to suppress the

magazines from evidence, claiming that the officer's entry into

the store was an unreasonable search in violation of the fourth

amendment.

     The U.S. Supreme Court concluded that the clerk "...did not

have any reasonable expectation of privacy in areas of the store

where the public was invited to enter and transact business," (1)

and that the "...mere expectation that the possibly illegal

nature of a product will not come to the attention of the

authorities, whether because a customer will not complain or

because undercover officers will not transact business with the

store, is not one that society is prepared to recognize as

reasonable." (2) The Court found the "...officer's action in

entering the bookstore and examining the wares that were

intentionally displayed to all who frequent the place of business

did not infringe a legitimate expectation of privacy and hence

did not constitute a search within the meaning of the Fourth

Amendment." (3)

     Consequently, officers may disguise their official

identities and enter private commercial premises open to the

public. Once there, they may examine items on display as any

other member of the public might be expected to do without this

conduct constituting a search. (4)

NONPUBLIC PLACES

     An officer's entry into nonpublic places, such as nonpublic

business premises, hotel rooms, or private residences, will

constitute a fourth amendment search. (5) In determining the

reasonableness of government intrusions under the fourth

amendment, the Court has expressed an emphatic preference for

searches made pursuant to judicially issued warrants. (6) As the

Court has stated, the "Constitution requires that the deliberate,

impartial judgment of a judicial officer be interposed between

the citizen and the police...[and] searches conducted outside the

judicial process, without prior approval by a judge or

magistrate, are per se unreasonable under the Fourth Amendment--

subject to a few specifically established and well-delineated

exceptions." (7)

     One exception the Court has recognized to the warrant

requirement is that of consent. (8) An officer entering premises

based on consent should be prepared to prove at a later time

that: 1) The consent was voluntarily given; (9) 2) the person

giving the consent was in apparent lawful control of the premises

searched; (10) and 3) the search performed was within the scope

of the consent that was given. (11)

VOLUNTARINESS

     A voluntary consent is one that is the product of a person's

exercise of free will. (12) In assessing voluntariness, courts

examine the totality of circumstances surrounding the consent,

scrutinizing the facts to detect if coercive factors were

present, such as the use of force, the making of promises or

threats, and badgering or harassment. (13) Because the Supreme

Court has held that a consent need not be a knowing waiver, the

use of noncoercive deceptions by law enforcement in seeking

consent is lawful. (14) In this regard, certain types of

deception used by officers in seeking consent have been routinely

accepted by courts.

TYPES OF DECEPTION

"Loyal Friend" Deception 

     Between October 22 and December 23, 1962, James Hoffa was

being tried in Federal court in Nashville, Tennessee, for a

violation of the Taft-Hartley Act. During the trial, Hoffa

occupied a three-room suite in the Andrew Jackson Hotel. Edward

Partin, a Teamsters union official from Baton Rouge, Louisiana,

was a frequent social guest in Hoffa's suite and was present when

Hoffa and others discussed bribing the jurors in the case on

trial. 

     Partin, a government informant, relayed information about

the bribery to Federal officers, which resulted in a subsequent

prosecution of Hoffa for bribery. In an effort to suppress

Partin's testimony about the conversations, Hoffa asserted that

Partin's failure to contemporaneously disclose his role as a

government informant vitiated Hoffa's consent to Partin's

repeated entries into his hotel suite. (15)

     The Supreme Court held that Hoffa's consent was voluntary

and binding. (16) The Court noted that the fourth amendment did

not protect "...a wrongdoer's misplaced belief that a person to

whom he voluntarily confides his wrongdoing will not reveal it."

(17) Similarly, courts have held that an employer who relies on

an employee to conceal evidence of crime revealed to him and an

employee who shares details of criminal conduct with a coworker

assume the risk that the person is a government informant or an

undercover police officer. (18)

"Fellow Criminal" Deception

     On December 3, 1964, an undercover Federal drug agent

telephoned a man named Lewis, and pretending to have been

referred by a friend of Lewis', sought to purchase marijuana.

Lewis told the agent to come to his home. The agent did so,

knocked on the door, and continuing to conceal his official

identity, was admitted. At his subsequent trial for sale of

marijuana, Lewis claimed that this entry by the agent was an

unreasonable search in violation of the fourth amendment, because

the invitation to the agent to enter was the product of fraud and

deception. 

     In holding that no fourth amendment violation had occurred,

the Supreme Court focused on the evidence indicating that Lewis

had voluntarily admitted the agent (19) and noted that the agent

did not "...see, hear, or take anything that was not

contemplated, and in fact intended, by [Lewis] as a necessary

part of his illegal business." (20) In approving the use of

deception in this circumstance, the Court stated that doing

otherwise would "...severely hamper the Government in ferreting

out those organized criminal activities that are characterized by

covert dealings with victims who either cannot or do not

protest." (21) Consequently, lower courts have routinely approved

consent to enter based on the deception by undercover law

enforcement officers that they are also criminals. (22)

"Mundane or Ordinary Visitor" Deception

     On May 6, 1988, a United Parcel Service (UPS) delivery man

and a police officer posing as a UPS employee entered the

defendant's residence at his invitation in order to receive

payment for a COD delivery. While inside the house, the police

officer detected a strong chemical odor that he associated with

the manufacture of methamphetamine. This fact was included in an

affidavit supporting the issuance of a search warrant for the

residence.

     In the criminal prosecution that resulted, the defendant

sought to have the warrant invalidated, claiming that the entry

into his house by deception was an unreasonable search. In

holding that no fourth amendment violation had occurred, the

Eighth Circuit Court of Appeals noted that "...one who consents

to an undercover agent's entry into his house `has no legally

enforceable expectation that [the agent] is not an undercover

officer.' " (23) 

     Other courts have similarly upheld the validity of consent

to enter based on the deception that the undercover officer is a

sort of individual who might ordinarily visit one's home. For

example, in United States v. Wright, (24) undercover officers

knocked on the door of the defendant's motel room, told him that

they had experienced car trouble, and asked to borrow tools and a

flashlight. While obtaining the flashlight and tools from the

defendant, the officers saw white powder and drug paraphernalia

in the motel room. This information was incorporated into an

affidavit supporting the issuance of a search warrant for the

room. In reviewing the use of deception to obtain the view of the

incriminating objects, the court held that no fourth amendment

violation had occurred. (25)

Coercive Deception

     In a few cases, courts have cited deceptions that were out

of the ordinary in holding that a consent to enter was the

product of coercion, and therefore not voluntary in a particular

circumstance. For example, in United States v. Giraldo, (26)

officers gained entry into the defendant's residence while

dressed as utility company employees claiming to be investigating

a gas leak. 

     In holding the consent to enter involuntary, the court noted

the apparent danger of the situation presented to the defendant

and the fact that the officers were presenting an offer that no

reasonable person could refuse. Similarly, use of a second ruse

when the first fails has been held "coercive." (27) Therefore, it

is advisable to devise a deception that might routinely be

experienced by residents in the ordinary course of events.

     Ironically, officers may increase the likelihood that a

consent to enter will be deemed involuntary when they reveal that

they are law enforcement officers, but are deceptive regarding

the purpose or justification for their visit. In United States v.

Bosse, (28) a Federal firearms enforcement agent accompanied a

State firearms licensing agent to the defendant's home,

pretending to be the State officer's assistant. The State officer

wanted to ask the defendant questions about the firearms license

application that he made.

     The Ninth Circuit Court of Appeals held that the Federal

agent's entry into and observation of the defendant's home was an

unreasonable search due to the deception employed. (29) Although

the reasoning of this case seems in conflict with the Supreme

Court's decisions relating to the use of deceit to obtain

consent, officers overtly seeking consent to enter should

recognize that deception regarding their purpose may be viewed by

some courts as coercive conduct that invalidates a consent. (30)

FACTUAL PREDICATE FOR DECEPTION

     A few courts have imposed a requirement that officers

possess at least reasonable suspicion that persons in a residence

are engaged in criminal conduct prior to seeking a consent to

enter by means of deception. For example, in United States v.

Maldonado Garcia, (31) the U.S. District Court for Puerto Rico 

stated:

      [O]fficers cannot use a ruse to gain access unless

     they have more than conjecture that criminal activity

     is underway. To hold otherwise would be to give police

     a blanket license to enter homes randomly in the hope

     of uncovering incriminating evidence and information."

     (32)

     The Supreme Court has upheld as constitutional the

suspicionless following (33) or questioning (34) of persons in

public places and officer requests of persons in public places

for consent to search. (35) However, until the Court rules on the

legality of seeking a consent by deception from a person not

suspected of criminal activity, it is recommended that officers

preserve a complete record of all the facts known about a

person's suspected criminal activity at the time they seek to

obtain consent by deception.

APPARENT AUTHORITY REQUIREMENT

     Gaining a voluntary consent to enter satisfies the first

requirement of a lawful entry. The second requirement is that the

consent be acquired from a person who apparently has the

authority to admit guests. (36) Generally, an adult who answers

the door will apparently have such authority. Where the person

who admits the officers is someone other than the defendant, it

is prudent to determine the person's relationship to the premises

so that the person's authority can be factually established at a

later time. (37)

SCOPE OF ACTION 

     As with any other search based on consent, officers may not

exceed the limits of the license they have been given.

Consequently, the officer pretending to be a delivery man may

only do those things a genuine delivery man would be likely to do

under the circumstances. Exceeding the scope of the consent by

walking unescorted away from the area into which one has been

invited or by looking into drawers or other places that a

delivery man would not will result in an unreasonable search that

violates the fourth amendment. (38)

CONCLUSION

     Obtaining consent to enter through deception is an extremely

useful law enforcement tool in certain circumstances,

particularly when acquiring a search warrant is not possible

because of insufficient facts for establishing probable cause. In

using this technique, officers should use care to choose a

noncoercive deception and to carefully document the circumstances

under which consent is obtained, the scope of license acquired,

and the factual support for use of the technique.

ENDNOTES

     (1)  Maryland v. Macon, 105 S.Ct. 2778, 2782 (1985).

     (2)  Id.

     (3)  Id.

     (4)  Id.  See also, Autoworld Specialty Cars, Inc. v. United

States, 815 F.2d 385 (6th Cir. 1987)(Customs agent entered car

dealership and inspected illegally imported cars); Winkel v.

Reserve Officer of City of Beloit, Kansas, 773 F.Supp. 1487 (D.

Kan. 1991)(19-year-old reserve officer entered tavern and bought

beer, claiming to be the legal drinking age).

     (5)  Michigan v. Tyler, 436 US 499 (1978);  Michigan v.

Clifford, 464 U.S. 287 (1984);  Payton v. New York, 445 U.S. 573

(1980);  Steagald v. United States, 451 U.S. 204 (1981); 

Minnesota v. Olsen, 110 S. Ct. 1687 (1990).

     (6)  See Katz v. United States, 389 U.S. 347 (1967).

     (7)  Id. at 357.

     (8)  Illinois v. Rodriguez, 110 S.Ct. 2793 (1990); United

States v. Matlock, 415 U.S. 164 (1974).

     (9)  See Schneckloth v. Bustamonte, 412 U.S. 218 (1973).  

     (10)  Illinois v. Rodriguez, 110 S.Ct. 2793 (1990).

     (11)  Florida v. Jimeno, 111 S.Ct. 1801 (1991).

     (12) Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

     (13)  Id.

     (14)  Compare Lewis v. United States, 385 U.S. 206 (1966),

with Bumper v. North Carolina, 391 U.S. 543 (1968).

     (15)  Hoffa v. United States, 385 U.S. 293, 300 (1966).

     (16)  Id. at 302.

     (17)  Id. at 301.  See also, United States v. Scherer, 673

F.2d 176 (7th Cir. 1982)(undercover officer invited on

defendant's property to help build duck blind observed evidence

of crime); United States v. Raines, 536 F.2d 796 (8th Cir.

1976)(undercover officer gained entry into defendant's apartment

where he observed evidence of crime by claiming to be friend of

defendant's drug associate).

     (18)  See Pleasant v. Lovell, 876 F.2d 787 (10th Cir.

1989)(employer); Matter of John Doe Trader Number One, 894 F.2d

240 (7th Cir. 1990)(co-worker).

     (19) Lewis v. United States, 385 U.S. 206 (1966).

     (20)  Id. at 210.

     (21)  Id.

     (22)  See United States v. Paul, 808 F.2d 645 (7th Cir. 

1986)(undercover drug purchase in defendant's residence); United

States v. Robinson, 720 F.2d 18 (8th Cir. 1983)(undercover

officers enter defendant's residence to engage in illegal

gambling); United States v. Lyons, 706 F.2d 321 (D.C.Cir.

1983)(undercover drug purchase in defendant's hotel room); United

States v. Shigemura, 682 F.2d 699 (8th Cir. 1982)(entry into

defendant's residence to purchase stolen meat).

     (23)  United States v. Wagner, 884 F.2d 1090, 1095 (8th Cir.

1989).

     (24)  641 F.2d 602 (8th Cir. 1981).

     (25)  Id. at 604 (and cases cited therein).  See also,

Hrubec v. United States, 734 F.Supp. 60 (E.D.N.Y. 1990)(postal

inspector disguised as letter carrier admitted into defendant's

residence while defendant signed receipt).

     (26)  743 F.Supp. 152 (E.D.N.Y. 1990).

     (27)  United States v. Rivera, 762 F.Supp. 49 (S.D.N.Y.

1991).

     (28)  898 F.2d 113 (9th Cir. 1990).

     (29)  Id.

     (30)  See also, United States v. Briley, 726 F.2d 1301 (8th

Cir. 1984)(officers claimed purpose for entry was desire to talk

to roommate when in fact they were there to arrest him. The court

noted that deception could be a coercive factor, but that in this

case, it did not render the consent invalid.)

     (31)  655 F.Supp. 1363 (D.P.R. 1987).  See also United

States v. Montoya, 760 F.Supp. 37 (E.D.N.Y. 1991).

     (32)  655 F.Supp. at 1367.  The court's reasoning appears to

disregard a citizen's ability to turn away unwanted visitors from

his door, a frequent occurrence for most.

     (33)  Michigan v. Chestnut, 486 U.S. 567 (1988).

     (34)  United States v. Mendenhall, 446 U.S. 544 (1980);

Florida v. Bostic, 111 S. Ct. 2382 (1991).

     (35)  Id.

     (36)  See Illinois v. Rodriguez, 110 S.Ct. 2793 (1990).

     (37)  See United States v. Matlock, 415 U.S. 164 (1974).

     (38)  See United States v. Aguilar, 883 F.2d 662 (9th Cir.

1989); Pleasant v. Lovell, 876 F.2d 787 (10th Cir. 1989).