united states versus spy v mr adler may please the court andrew rather from the federal defenders office on behalf of an equal austin who is with us in the courtroom today and counsel table with me is tim day in this case two law enforcement officers deliberately perpetrated a fraud on miss austin in order to enter her home and search her master bedroom without a warrant they concocted a scheme where they fraudulent lee told her that they were there to help her as the victim of a crime when in reality they were there to investigate whether she herself had committed a crime and to get in term aster bedroom they had a secret service agent falsely posed as a crime scene technician who pretended to dust her home for fingerprints this austin's consent was not voluntary ok so the that's the question right whether the consent was voluntary there was concern but the question was a that's correct that is a question of fact that we review for clear error right no it usually that is correct your honor but this court has several cases which we cite on the top of page three of our reply brief which says where the facts and testimony are undisputed that this is a question of the law because it's an application of the law to undisputed fact and in this case we are we are taking all the district courts factual findings that's true and we are arguing that based on those undisputed factual findings that her consent was not voluntary as a matter of law and so that's a question that this court reviews de novo and i think there are two key factual findings that i really like to emphasize here first on page two and this goes to the motive of the reason why the officers came to the house page two paragraph two does the motive matter well you get to that because i've always start with the fourth amendment the that the that the inquiry is objectively not subjective that what matters is whether what the officers were doing was reasonable without regard to their subjective and your honor that is true in certain contexts like in the rand case where we're looking at whether there's probable cause and that's an objective determination but we understand that voluntariness inquiry to be subjective and that's why we look at they defend it's age and intelligence and things individual consented voluntarily right i get that but from the standpoint of evaluating the peace officers conduct that that i and it's not subjective it's not their motivation that matters we submit that in order to determine whether somebody is voluntarily agreeing to allow officers into their home the paramount question is why did they want to come in your home so we that from that property owners perspective right yes but when the officers tell you that they are there for one purpose to help you as the victim of a crime when in reality they are there to determine whether you are committing a crime and if so to charge you with a crime and lock you up for several years then that is a paramount factor that goes into the voluntariness of the consent do you think that they made affirmative misrepresentations the way there was in some of these other cases where there 's a direct question is this a criminal investigation in in the i r s case and they said no i didn't see an affirmative misrepresentation here you point me to it or do you rely on that absolutely your honor we don't think there's any dispute that there's an affirmative misrepresentation in this case and the clearest example of that is the officer saying the district found that they lied about who agent lanfear seek was they said that he was a crime scene technician w reality who was there to follow up on their understand that so that is that the main affirmative misrepresentation because they could easily have had a a real tech i mean he didn't you know he didn't have some specialize knowledge or specialized eyeglasses once they said show us where the burglar went and she led them through the the house that was really the ballgame wasn't it yes and that is why the mis represent affirmative misrepresentation was so critical here without that misrepresentation they don't get in the bedroom where they already suspect that the contraband is located now and why is that that is had the same officer as it turned out the lead officer school which was working the computer if they had swapped i mean in a school which was what he said he was right and an officer from the lauderhill police department she would have led them exactly the same place  perhaps and we don't know that we submit we suspect that there would have needed to be some additional misrepresentation to get in the bedroom is not entirely clear that she would have to lead them to the bedroom without him prompting her to to show me where the burglar went but we're not disputing that if officers legitimately came to the home to follow up on the burglary that that would be a different case what makes this case so problematic is that the officers are making these misrepresentations and that her consent is a deuced thereby from their perspective from the residence perspective they understand that these officers have the authority to investigate crimes and we know part part of why we know that is because they hide incriminating evidence before they permit them to enter the the premises isn't that right that is right we actually think that fact cuts in our favor because it shows it really highlights the public policy problems that we have here the fact that they hid the evidence a shows that the purpose of the officers mattered a great deal to them and second it shows that the defendants in this case were relying in good faith on the fact that the officers were legitimately there to help them and in fact that they don't how does that show that they were relying on that a change seems to me to show the opposite if they were hiding incriminating evidence it suggests that they understood that if the offer sers came in and saw that evidence that they could do something about it precisely and that's why if the officers told her the truth she would not have let them in and we know that from all the surrounding not only from commonsense but from surrounding circumstances when she was standing outside the office or showed up she was alarmed she media went inside she hid the thing in the oven then when they tell her why they're really there to talk she she gambled she gambled she was missing a calculated risk right doesn't that suggest voluntariness no your honor there's a distinction between the wisdom of her calculation and the voluntariness of her consent i don't think we have a dispute about the wisdom we agree it was not a wise decision right how does not mean that her consent was voluntary and and the fact that she made this calculation it was missing she did that missing the most important piece of the puzzle which is why they were there and again we submit that commonsense the record tells us that if she was really told the truth she wouldn't she would have reached the opposite decision and that's precisely why the officers concocted this elaborate ruse to get into her home because if she they told her the truth it's a closed door in their face and so we submit that common sense principles this court's precedents and in tweel and in the e s m case establish a general rule of thumb that where consent is induced by material misrepresentation it's not going to be voluntary and it's not going to be the product of a free and  unconstrained choice and again the u s three that we should look at the totality of the circumstances though in i guess you would say in deciding the question of law the reason i'm balkan a little bit is that usually when we talk about totality of the circumstances that's exactly what makes it a factual question typically that is that is true we are not disputing the totality of the circumstances in corrie but we're not disputing any of the factual findings in the district court's order and if i could just come back to that the two that i really want to harp on are page two paragraph two the order where the court says that the burglary investigation was quote a pretext it was quote not the real reason why they were there that they also had a legitimate reason for being there it the district court says a couple of different things that point in different your honor we don't know the other factual finding is on page five paragraph ten where he says to the extent the burglary investigation  was played any role whatsoever and it does not find that it did but to the extent it did it was quote very minimal so we have as did use some of the evidence in actually convicting him later on that's correct but that does not change the fact that that is not the real reason why they came to the house in the first place and in fact the fact that they have tain this video surveillance was all part of the route that is what allowed them to to buy time with spy via the computer wild land first it's just like  question of the objective is there probable cause or karla's of what's going on the officer's mind we cannot draw that separation here and when you're talking about the voluntariness of someone's consent to let you into their home where fourth amendment interests are at their peak and if that if the homeowner does not know really why that officer is there then then we submit that that is the quintessential factor thank you and you saved five minutes for  smith you want to add a minute on behalf of your client mr spy ving what i really want to do is just make sure that the court understands and i want to reiterate that mr spy b and miss austin are wholly aligned on the arguments and presented in the case and i know in the court below the federal public defender's office with mr tindale filed the initial motion which mr spy be adopted enjoined in and in this case if you will it is my brief basically as an adoption so i wanted to reiterate to make sure the court understands they're totally aligned coordinated we have met on numerous occasions of assisted in the research and factual presentation independently participated in it but having been a lawyer now for appearing before the court for probably forty years and doing oral arguments up in atlanta when used all have it up there i know the old adage that will seize and lawyer knows when to be quiet and sit down and so therefore i deferred to the arguments in the presentation of the co counsel is an outlier they also cite a simmons case where no facts actually were in dispute but here are facts of what facts are in dispute here well ultimately the predominant fact is the voluntariness inquiry which is a totality of circumstances test but there does your honor but in garcia all of the facts by the district court were taken in favor of the non prevailing party here a number of the facts were in favor of the government the prevailing party garcia was a government appeal where the standard in a on a record like ours where there was the totality of circumstances test that was employed where there were a number of facts in dispute they attempted to impeach detective even scavenged based on his deposition testimony which he gave were material to the voluntariness determination by the district court ultimately three sets of facts whether austin was the one who led the agents through the house or whether the agents directed her because that was material with regard to whether it was within the scope of the ruse or whether they exceeded their invitation that was the primary one and a portion of that argument was predicated on the notion that she somehow cursed at them that she  scavenged addressed that and said she never specifically cursed at us it was just her attitude with regard to taking an opportunity to help herself out explaining where that embossing machine came from and what she resorted to with the lie that she concocted prior to the police coming to the house the lie that she planned with spy v spy v resorted to it also and they had it in place because they're the ones that invite is that one of the disputes of facts is whether that was a  response no your honor so with regard to the other disputed facts the other disputed facts aside from who led them through the house and also whether spy via any point was excuse me whether the review of spy  phone was conducted subsequent or before his consent so mr de attempted to cross examine detective scavenged to suggest with that position transcript that in fact he started reviewing the phone before spy v consented and detective even denied i don't know what that has to do with the dispute fact at least as to whether the initial entry into the home was wollen terry or not well your honor that because any earlier violation well if it goes to that as well but it goes to the level of cooperation throughout the entire day because that goes to the totality of the circumstances which is a factor in the first instance it does also go to th officers in entering the home is to obtain a consent later to use the legality to obtain that consent then you could by step the other progs of the now says but that's clearly that's this year i mean that's the argument that that's what the officers did here sure but this wasn't flagrant your honor in the dish a court found that it wasn't flagrant first they had consulted their supervisors they fired him they get a warrant and well that seems like it would have been easier to just get a warrant the here is whether ms austin's consent was voluntary but with there's no requirement there's no requirement of exhaustion of going through one method rather than another but whether there's probable cause well settled and stack off well i mean they had a lawyer on standby in case they needed to get a warrant and i just don't want to get one juror and the third fact that was in dispute was whether miss austin told them to leave that whether she cursed at them and told them to leave and so they would have needed a warrant at that point because at that point they'd seen in plain view through the course of the invitation items that were suggestive of credit card fraud which corroborated a burglar was trying to help himsel that that they would have had to leave my right that the business about cursing and whatever was after she was already out in the yard and they knew that she had a warrant out for her so they would be able to take her away which gets you into the randolph versus georgia line even if we believe that she had quote told them to leave would knew well that he would have said would have done what they did which was talk to spy the who was the sole remaining co habitant sure the point of having the state attorney on standby was if even if they didn't initially have probable cause they envision scenarios where they would establish probable cause but be not be in a situation to execute the search they didn't presume that they would consent to a search even even before they got to the bedroom they saw some things that's right your isn't it more likely what you really have here you know police talk about knock and talk that is they could have done it  a knock and talk their roosts got them a little further into it but presumably you know as the old the old line says you can get more with a gun and a kind word and with the gun alone they could find out perhaps more without going in in the adversarial nature of a warrant isn't that really why they did it what your honor it's it's perhaps not the best practice and we're not asking the court to write an opinion that this is the best practice or asking the court to do is to not extend tweel to rely on the ordinary fourth amendment jurisprudence deploy the same would you draw the is it because the misrepresentation was so affirmative and so critical to giving the consent or how would you how would you draw a line if we have to well well your honor i think the fourth amendment issues bright lin o the suspect that this officer this is not someone who has the authority to investigate crimes versus someone who does that's a a state burglary no your honor he didn't have authority to part investigate a stay burglary wasn't one of his arresting statutes but he had authority to be there on that day and the question was whether his invitation to that home was voluntary that's that's the inquiry which i which i suggest the court should deploy tweel involve the i r s taking upon themselves to seek business here ms austin and mr five each filed police reports to seek the return of their property and then police in uniform showed up to their door and said we're here to investigate the burglary which was true the dish of course to see how isn't true the how is it true they had the they had already caught the burglar well sunrise had caught the burglar in a different jurisdiction this was a prolific bird but that's how they knew to go back there they had to they had spoken to him right well yes your honor that undermines the probable cause go back to your other issue this was a prolific burglar and so while they had caught him in he had confessed to robbing that house just catching somebody and getting a confession isn't even enough to secure a conviction and even if it was there's no requirement that law enforcement stop gathering evidence and the district court specifically found and it's supported by the sunrise correct your honor so there this was a prolific burglar which would go to the issue of whether his word alone would have been sufficient for probably cause for the warning as well as sufficient enough to get him to go to the house to go through it right sure and consent searches are are often employed in that type of man or even with less particular facts because they avoid the need for more exacting searches this the suspicions could be dispelled and surviving austin decided that they wanted to conscript the police to be their private collection agency and in doing so they were going to rely on them allow them into their house for their limited purposes but they but everything that the police i need to go there i know and in that the way it went well can you show me where the burglar went next thing to that effect and it was ms austin's calculation that in order to get the police assistance the sister with the burglary that she was going to rely on them and she decided to do so and it was her calculated gamble that she would be able to talk her way out of any evidence and they had the concocted a story and they hid what they couldn't otherwise do if the court has trouble with this with and want to draw a bright line and extend tweel it doesn't mean that the district court would not see how we can draw a bright line when the supreme court says we have to look at the t circumstances and sure sure and that and here the district court in its totality every other circumstances in favor of consent in this particular case and what's perhaps another deception case is it will be more difficult because you wouldn't necessarily have a post where in a confession where the suspect specifically describes their motives in allowing the police in but not reporting other crimes there's the public policy argument that victims won't report crimes but here specifically austin talked about ho used that gun to shoot his the child's mother in a previous case and they couldn't make police reports worth their guard to intruders that's in her statement that she made to the police subsequent in a post brenda statements they were sophisticated although the government's admits in this case that the record supports its lawfulness that the ruses up spidey has an opportunity to consider his options and he decides that he wants to stick with his gamble that he wants the police 's attend and that by consenting he'll distance himself and haw so dispel any a suspicions the police have he tries to talk himself out of it and he elects to consent on that basis and the cat was not out of the bag as was suggested by in their brief because by that point the weapon had not been recovered the card reader had not been recovered from the oven and specifically the phone which was only searched after two different consent forms were provided to spock also had substantial significant and sufficient independent evidence to secure convictions in this case so on his phone was pictures of mr spock holding his gun taking a selfie picture at the phone the guns to police jackets clear police insignia and that ms austin went inside to say the police are here no or do anything that some other legitimate larger hill officer couldn't have done that is did he have specialized knowledge that they needed to have him rather than somebody else no no your honor and the dish of court even made a finding to that effect that based on the circumstances in this case including being in a position to listen to the post miranda statements and the fact that previous patrol officers had been to the entryway of that house that they would have been in a position to make the same findings and to  same evidence in that regard for the reasons i see them over my time you are and we appreciate your argue i think we understand your case thank you and i'd ask that you affirm the district court order below on either of those big problem is thank you thank you thank you perhaps this was not the best practice i think is the dramatic understatement of the day we have basically your case comes down does it not to the officers were there not to help them your client believed but to bust them that is a critical component of our argument yes because we think that when miss austin was operating on a version of reality that was the polar opposite of the truth  we do not see how her consent under those circumstances could be the product of a free and unconstrained choice even problem i thought there were only there to help them why did they hide the the machine in the oven i mean that you know well before they released come to my house to  to investigate a burglary i don't usually hide incriminating evidence sure but they didn't know why the officers were there until they knocked at the door and affirmatively told them why they were there they they could have been concerned that they were there to investigate the credit card fraud and so once having that evidence they understood that they could investigate crimes your honor the defense didn't know who the officers were until they knocked on the door and told them falsely who they were i mean not only did they not mention that this was not a secret service agent who had no experience whatsoever with crime scene fingerprint analysis but they also didn't mention that detective i was detached to a secret service fraud task force w of his secret service status that had they in fact gotten a lot or hill evidence tech everything else would have gone down exactly the same well i mean that's speculation but yes mr leffers the had no specialized knowledge of burglars because he doesn't investigate burglaries and he's not a crime scene technician he admitted that he's never done it better a lot of the officer he would have also been able to see suspicious evidence if they had is i mean burglar himself was suspicious right if they had gotten to the bedroom they would have seen items in plain view but your honor that begs the question of why didn't they just send a legitimate officers who were following up on five paragraph ten of the order he is now the district court does not find that detective i had was legitimately there for the burglary he finds to the extent that he was in court specifically said that they had a legitimate reason for being there no you're out of the district court says that there was a legitimate reason for some officers to go there but not necessarily these two officers and so and so this is a totally different case if there is legitimate follow up if there is to lauderhill officers who are actually following up on the burglary then there's no deception slightly confusing perhaps the motive and the personnel that is you're trying to say ok lanfear seek is a secret service guy and if this cave which even though he is a legitimate officer he doesn't usually do this stuff but again how would anything have gone down differently if they were to legitimate burglary officers who so of course know the story and know that probably this is an operation that they'd like to get inside and see the difference is your mother i mean your motive argument i understand but the personnel argument that they didn't say oh we're going to let you in because you're a secret but that is exactly why they they let the officers in because they thought there was a legitimate follow up so if they tell them the truth personnel well if they told them that this was actually a secret service agent i think one could draw the conclusion that secret service doesn't usually investigate burglaries and in fact they don't and so i think it's important to bear in mind here that we have a venerable fourth amendment principle that warrantless searches of the home are presumptively unreasonable and the supreme court has said that the consent exception has to be quote carefully and jealously drawn we believe that if the search in this case is upheld it would allow that consent exception to swallow the very fourth amendment rule that is so long standing the very core which was designed to protect the homes and i also think that this court is bound not only by tweel but by the e s m case which interpreted tweel to say that listen tweel is not limited to i r s it that was an i r s case the court said that the general rule announced in tweel is based on public policy considerations and i see that my time is winding up but i do have a question for brandeis said in his famous olmstead to said he said that when the government becomes a law breaker it breeds contempt for law it invites every man to become a law unto himself it invites anarchy and we submit that upholding the search in this case would do precisely that and while the defendants did commit a fraud so too did the government agents and two frauds don't make a right we ask that the court reversed the denial of the motion to say it was out of there not log breakers in the sense that we submit that the officers in this case were engaged in the exact type of they weren't there to plant evidence they were there to find incriminating evidence correct there is a board but we understand your case is well argued and in very interesting