Agent Brenneman told Mr. Harrison they were there because, “our office received an anonymous phone call there were drugs and bombs at this apartment,” and he asked if Mr. Harrison “would mind if we look around the apartment.” Id. at 19. The government concedes the ATF had no reason to believe there were bombs in the apartment, but Agent Brenneman testified he had planned to say this to Mr. Harrison “in an effort to gain his consent to search.”
It is true that not all deception or trickery will render a search invalid. For example, “an undercover agent may gain entry to a person’s home by deception and purchase narcotics with no violation of the fourth amendment.” Pleasant v. Lovell, 876 F.2d 787, 802 (10th Cir. 1989) (citing Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966)). But the government’s reliance on this line of cases is misplaced. In cases involving undercover police work, the defendant does not know he or she is permitting the government to enter the premises. Unlike the defendants in those cases, Mr. Harrison did not “unwisely repose[] trust in what later turn[ed] out to be a government agent,” Pleasant, 876 F.2d at 802. Instead, Mr. Harrison knew he was opening his home to law enforcement officials who have expertise in explosives. The question is whether the Agents’ deceptive tactics in these circumstances rendered his consent involuntary.
We should be especially cautious when this deception creates the impression that the defendant will be in physical danger if he or she refuses to consent to the search.
Where “the effect of the ruse is to convince the resident that he . . . has no choice but to invite the undercover officer in, the ruse may not pass constitutional muster”
In U.S. v. Harrison, 639 F.3d 1273, 1278–79 (10th Cir. 2011), the Tenth Circuit held that “when government agents seek an individual’s cooperation with a government investigation by misrepresenting the nature of that investigation, this deception is appropriately considered as part of the totality of circumstances in determining whether consent was gained by coercion or duress.”
Read full case here: U.S. v. Harrison, 639 F.3d 1273 (10th Cir. 2011), https://casetext.com/case/us-v-harrison-112/
Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
https://lawstache.com
(619) 357-6677
Do you want to buy our Lawstache merchandise? Maybe a T-shirt?
https://lawstache.com/merch/
Want to mail me something (usually mustache-related)? Send it to 185 West F Street, Suite 100-D, San Diego, CA 92101
Want to learn about our recent victories?
https://lawstache.com/results-notable-cases/
Are you a Russian speaker? Вы говорите по-русски?
https://russiansandiegoattorney.com
Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts
The San Diego-based business litigation and criminal defense attorneys at LAWSTACHE™ LAW FIRM are experienced and dedicated professionals singularly focused on one goal: achieving the best results for our clients. Through our hard work and expertise, we guarantee all of our clients that we will diligently protect their rights and zealously pursue justice. Our clients deserve nothing less!