This case centered around ATF investigators acting on a consent to search a residence. The manner in which the request was phrased became the critical issue because of an inference of bombs being present. Note: The persons depicted in this photo aren’t those involved in the case discussed in this article. AP Photo/Alex Brandon
FEATURED IN INVESTIGATION
Without question, the false shouting of “Bomb!” on a commercial airline has taken on new meaning since 9/11. However, that fateful day wasn’t the impetus for making it unlawful to do so. Indeed, it’s been prohibited for some time,1 just as it’s unlawful to falsely shout “Fire!” in a crowded theater.2
What about law enforcement officials? Are they permitted to falsely inform a suspect that there’s a bomb in their house under the pretense of gaining consent to search the residence? No doubt the use of deception by police officers is permissible in an effort to nab the bad guys. For example, in many circumstances law enforcement officers are generally authorized to lie to criminals to extract a confession.3 But when do officers cross the line in concocting their lies?
Recently, the Tenth Circuit Court of Appeals decided a case in favor of a criminal suspect when ATF agents, in an effort to obtain consent to search the residence, lied to the suspect by falsely telling him they were there to search for drugs and bombs.
Johnny Harrison was charged by indictment with being a felon in possession of a firearm and ammunition, a violation of federal law. The firearms were discovered by ATF agents during a warrantless search of Harrison’s apartment. Harrison moved to suppress evidence of the loaded firearm, arguing that he hadn’t voluntarily consented to the search. The district court found
that the agents’ use of deceitful tactics to gain consent to search rendered Harrison’s consent involuntary. As such, the court granted the motion to suppress. The prosecution appealed.
ATF agents learned that Harrison owed money to a suspected firearms trafficker and was selling drugs out of his apartment. After conducting surveillance for several months, the agents didn’t come up with any such evidence and decided to conduct a “knock and talk”5 in an attempt to gain consent to search the apartment.
The agents approached the apartment in plain clothes, armed with concealed firearms and with badges worn around their necks. When they knocked, Harrison asked who it was without opening the door. An agent replied, “It’s Steve.”
After two or three minutes, Harrison opened the door. The agents identified themselves as law enforcement officers and asked if they could come inside and talk. Harrison agreed and introduced himself.
The first agent told Harrison that they were there because “our office received an anonymous phone call [that] there were drugs and bombs at this apartment,”6 and asked Harrison if he “would mind if we look around the apartment.”7 The agents had no reason to believe that there were bombs in the apartment, but this was the manner in which the agent wanted to gain consent to search the apartment.
Harrison replied either that there were no bombs in the apartment or that he didn’t think there were bombs in the apartment. The first agent responded, “Well, you know, any time we get a phone call like this, you know, our boss makes us come out and investigate it further and see if there’s any threat or danger to the community.”8
When Harrison was reluctant, the agents assured him he could give permission to search even though it was his girlfriend’s apartment and that they weren’t interested in arresting him for “a small bag of weed.”9 Harrison then gave the agents permission to search the apartment, during which they found the gun and ammunition.
In granting Harrison’s motion to suppress, the district court stated: “The statement here made was that there was an anonymous tip that there were bombs and drugs at the apartment followed by the statement any time we receive this information our boss makes us check it out. And as for the statement by [the agent] that if Harrison had a little bit of weed they weren’t there to bust him. Again, that’s a reassertion that we’re not there to bust for a little bit of weed, rather we’re looking for bombs and drugs. This is precisely what the founders intended the Fourth Amendment to stop.”10
On appeal, the prosecution argued that the search was lawful because the agents used a permissible form of deception to gain consent. It claimed the agents’ conduct wasn’t coercive because they didn’t actually represent that a bomb had been planted in the apartment, but instead implied Harrison was unlawfully possessing drugs and bombs.
On appeal, the Tenth Circuit Court of Appeals reiterated that “a warrantless search of a home is presumptively unreasonable, and evidence obtained from such a search is inadmissible, subject only to a few carefully established exceptions,” one of those exceptions being a voluntary consent to search.11 It also repeated that “the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.”12
In the criminal context, the prosecution bears the burden of proving that consent is given freely and voluntarily. As the court of appeals noted, “The question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.”13 Some of the items that will be considered “include physical mistreatment, use of violence, threats, promises, inducements, deception, trickery, or an aggressive tone, the physical and mental condition and capacity of the defendant, the number of officers on the scene, and the display of police weapons. Whether an officer reads a defendant his Miranda rights, obtains consent pursuant to a claim of lawful authority, or informs a defendant of his or her right to refuse consent also are factors to consider in determining whether consent given was voluntary under the totality of the circumstances.”14
The appellate court found that deception and trickery are among the facts that can render consent involuntary, especially when the deception implies that the suspect will be in physical danger if they refuse to consent to the search. But, the prosecution denied that the agents implied Harrison was in any danger. Instead, it claimed the agents were accusing Harrison of violating the law by possessing drugs and bombs in the apartment and that any reasonable person wouldn’t have assumed the “drugs and bombs” comment meant they were in danger.
Importantly, the prosecution conceded that just as it would be a violation of the Fourth Amendment for an officer to induce consent by pointing a gun at a suspect, it would also violate the Fourth Amendment if an ATF agent induced consent by falsely claiming that someone had planted a bomb in Harrison’s apartment. Yet, the district court found that this is the precise effect of the agents’ misrepresentation.
The agents’ conduct left Harrison with two options: (1) either deny consent to search and take the risk that a bomb had been planted in the residence, or (2) consent to the search. Consent under these circumstances wasn’t free of impermissible coercion, and Harrison’s consent was therefore involuntary. As such, the court of appeals affirmed the suppression of the firearm and ammunition.
Deception and trickery are commonly used by skilled law enforcement officers in their fight against crime. Courts have upheld in police interrogations a police officer lying about the number of witnesses that identified the suspect; lying about the evidence against the suspect; and lying to the suspect about the strength of the evidence against him. However, the Harrison case makes clear that when officers imply that a suspect will be in physical danger if he refuses to consent to a search, the suspect’s consent to search will be rendered involuntary. In other words, it’s not a good idea to tell a suspect there’s a bomb in his house—unless, of course, it’s true.
1. See, Levin v. United Airlines, No. B160939, (2nd Cal. Dist., Jan. 10, 2008) (female passenger, upset that she was late catching her plane on August 21, 1999, stated no less than three times [out of frustration] that she had a “bomb” in her luggage in violation of California Penal Code, 148.1 subsection (a)).
2. Schenck v. United States, 249 U.S. 47 (1919).
3. Frazier v. Cupp, 394 U.S. 731, 739 (1969) (not unlawful when, under totality of the circumstances, officer falsely tells suspect that his cousin confessed to the crime and implicated the suspect).
4. 630 F.3d 1273 (10th Cir. 2011).
5. Because “knock and talks” are consensual encounters, there is no Fourth Amendment violation even absent reasonable suspicion. See, e.g., United States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir. 2006).
6. Apparently, this tactic has been used by other ATF agents in the past. Id. at 1276, fn2.
7. Id. at 1276.
8. Id.
9. Id.
10. Id. at 1276-77.
11. Id. at 1278 (citation omitted).
12. Id. (citation omitted).
13. Id.
14. Id. (citation omitted).
15. Id. at 1280 (citation omitted).
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
