FILED

United States Court of Appeals

Tenth Circuit

May 11, 2011

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

JOHNNY JAMES HARRISON,

Defendant-Appellee.

No. 10-5061

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 4:10-CR-00040-GKF-1)

Richard A. Friedman, Attorney, Appellate Section, Criminal Division, United

States Department of Justice, Washington D.C. (Lanny A. Breuer, Assistant

Attorney General, and Gregory D. Andres, Acting Deputy Assistant Attorney

General, Criminal Division, United States Department of Justice, Washington,

D.C.; and Thomas Scott Woodward, United States Attorney, and Janet S. Reincke,

Assistant United States Attorney, Northern District of Oklahoma, Tulsa,

Oklahoma, with him on the briefs) for Plaintiff-Appellant.

Neil D. Van Dalsem (Robert Scott Williams with him on the brief) of Taylor,

Ryan, Schmidt & Van Dalsem, P.C., Tulsa, Oklahoma, for Defendant-Appellee.

Before O’BRIEN, SEYMOUR and HOLMES, Circuit Judges.

SEYMOUR, Circuit Judge.
1

 “As commonly understood, a ‘knock and talk’ is a consensual encounter

(continued...)

-2-

Mr. Harrison was charged by indictment with being a felon in possession of

a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). The firearm at

issue was discovered by agents of the Bureau of Alcohol, Tobacco, Firearms, and

Explosives (“ATF”) during a warrantless search of Mr. Harrison’s apartment. Mr.

Harrison moved to suppress evidence of the loaded firearm, arguing he had not

voluntarily consented to the search. The district court held a suppression hearing

and agreed with Mr. Harrison that deceitful tactics used by the ATF to gain

consent to search rendered Mr. Harrison’s consent involuntary. The court granted

the motion to suppress. The United States appeals, and we affirm. 

I.

According to testimony given during the suppression hearing, ATF Agent

Stephen Brenneman began investigating Mr. Harrison after receiving information

that he owed a thousand dollars to a suspected firearms trafficker and was selling

drugs out of his apartment. Agent Brenneman conducted surveillance of Mr.

Harrison’s apartment over several months, but did not observe evidence of drug

trafficking. Because the ATF lacked probable cause to request a warrant to

search the apartment, Agent Brenneman and ATF Agent Darrell Withem decided

to conduct a “knock and talk”1

 with Mr. Harrison in an attempt to gain consent to
1

(...continued)

and therefore does not contravene the Fourth Amendment, even absent reasonable

suspicion.” United States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir. 2006).

2

 During the suppression hearing, the district court asked Agent Withem if

the ATF commonly sought consent to search by claiming there had been an

anonymous tip regarding bombs and drugs at a premises. Agent Withem testified

that although he had never used this tactic before, he knew of other agents who

had.

-3-

search the apartment.

On the day of the search, the Agents were dressed in plain clothes with

their badges around their necks. Although they were armed, their firearms were

not visible. The Agents went to Mr. Harrison’s apartment and knocked on the

door. Without opening the door, Mr. Harrison responded from inside the

apartment, “Who is it?” Aplt. App. at 17. Agent Brenneman replied, “It’s

Steve.” Id. Mr. Harrison said something to the effect of, “Hold on a minute.” Id.

Two or three minutes passed before Mr. Harrison opened the door. During this

time, Agent Brenneman periodically continued to knock. When Mr. Harrison

opened the door, the Agents identified themselves as law enforcement officers

and asked if they could come inside to talk. Mr. Harrison agreed to talk and

introduced himself.

Agent Brenneman told Mr. Harrison they were there because, “our office

received an anonymous phone call there were drugs and bombs at this

apartment,”2

 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
3

 There is no evidence Mr. Harrison was told that he had a right to refuse

consent to the search.

-4-

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.” 

Id. at 38. Mr. Harrison replied either that there were no bombs in the apartment,

or that he didn’t think there were bombs in the apartment. Agent Brenneman then

told him, “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.” Id. at 20-21.

Mr. Harrison explained that he did not know if he could give permission

because it was his girlfriend’s apartment. Agent Brenneman told Mr. Harrison

that he could consent because he lived there and had control of the apartment. 

Agent Withem then assured him, “We’re not here to bust you on a bag of

weed. . . . We have bigger fish to fry than a small bag of weed.” Id. at 53. The

Agents testified that Mr. Harrison then gave them permission to search the

apartment.3

 During the search, Agent Brenneman found a loaded handgun that

was hidden in a hole in the drywall underneath a sink.

After hearing the evidence, the district court granted the motion to suppress

in an oral ruling. The court found as follows: 

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
-5-

check it out. And as for the statement by special Agent Withem that

if Harrison had a little bit of weed they were not there to bust him. 

Again, that is 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. It is an

unreasonable search based upon the totality of the circumstances

given the statements by federal law enforcement. . . . The

government cannot, particularly when one is an Alcohol, Tobacco,

Firearm, and Explosives agent state that we received an anonymous

tip that there are bombs here and our boss says we have to check it

out.

Id. at 84-85. The court explained,

[T]he government can’t obtain valid consent to search by placing a

person in fear, or making a statement from which a person could be

in fear, or suggesting that there may be a threat to a person that lives

within a house. . . .

Specifically the Court finds that the government has not met

its burden of producing clear and positive testimony that the consent

here was freely given. . . .

As counsel for the defendant states in his brief, if a person

doesn’t actually have a bomb or know of a bomb in an apartment,

then the logical interpretation of the statement is that someone else

could have put a bomb or explosive in the premises. For those

reasons the motion to suppress is granted.

Id. at 85-87. On appeal, the government contends the search was lawful because

the Agents used a permissible form of deception to gain consent. It claims the

Agents’ conduct was not coercive because they did not represent that a bomb had

been planted in the apartment, but instead they implied Mr. Harrison was

unlawfully possessing drugs and bombs. It further argues Mr. Harrison did not

feel subjectively threatened by the Agents, nor did they imply they had lawful

authority to search without his consent. 
4

 The government urges us to apply de novo review in this case, claiming,

“The question before this Court is whether, as a matter of law, Harrison’s consent

was coerced, rather than voluntary, because it was preceded by Agent

Brenneman’s false representation.” Aplt. Br. at 22. This misstates the issue. 

When considering whether consent is voluntary, the presence or absence of a

single factor is not controlling. See Schneckloth v. Bustamonte, 412 U.S. 218,

226 (1973). The district court stated it had considered the totality of the

circumstances, and we do not read its decision as adopting a per se rule that the

Agents’ “drugs and bombs” comment violated the Fourth Amendment. 

Accordingly, we review the district court’s voluntariness finding for clear error. 

-6-

II.

“When we review an order granting a motion to suppress, we accept the

trial court’s factual findings unless clearly erroneous, and we view the evidence

in the light most favorable to the district court’s finding.” United States v.

Zapata, 997 F.2d 751, 756 (10th Cir. 1993) (internal quotation marks omitted). 

Whether consent was voluntarily given is a question of fact we review for clear

error.4

 United States v. Silva-Arzeta, 602 F.3d 1208, 1213 (10th Cir. 2010). We

apply the clearly erroneous standard “because the credibility of the witnesses and

the weight to be given the evidence, together with the inferences, deductions and

conclusions to be drawn from the evidence, are all matters most appropriate for

the district court.” United States v. Mendoza-Salgado, 964 F.2d 993, 1011 (10th

Cir. 1992) (internal quotation marks omitted). The ultimate determination of the

reasonableness of the search under the Fourth Amendment is a question of law

which we review de novo. Zapata, 997 F.2d at 756.
-7-

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. Silva-Arzeta, 602 F.3d at 1213. Voluntary

consent to search is one such exception. Id. (citing Schneckloth v. Bustamonte,

412 U.S. 218, 219 (1973)). “But 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.” Schneckloth, 412 U.S. at 228. 

The government bears the burden of proving that consent is given freely

and voluntarily. Id. at 222. “[T]he 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.” Id.

at 227. Relevant considerations 

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.

United States v. Sawyer, 441 F.3d 890, 895 (10th Cir. 2006) (citations omitted). 

The government first contends the search of Mr. Harrison’s apartment was
-8-

reasonable because courts have repeatedly held that the government may use

deception to gain entry to a residence. 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 (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. 

Notwithstanding the legality of searches conducted by undercover agents,

the “Fourth Amendment can certainly be violated by guileful as well as by

forcible intrusions into a constitutionally protected area.” Hoffa v. United States,

385 U.S. 293, 301 (1966). We have repeatedly held that deception and trickery

are among the factors that can render consent involuntary. See, e.g., Sawyer, 441

F.3d at 895; United States v. McCurdy, 40 F.3d 1111, 1119 (10th Cir. 1994).

When government agents seek an individual’s cooperation with a government
5

 The government relies on United States v. Kimoana, 383 F.3d 1215, 1224

(10th Cir. 2004), to bolster its argument that deception does not invalidate a

consent to search. It claims the officer in Kimoana gained consent to search by

falsely claiming to be searching for an automobile key, when in reality the officer

wanted to search for weapons. This misconstrues the facts in Kimoana. In that

case, the officer requesting consent was genuinely searching for the key to a

stolen automobile, which contained a sawed-off shotgun. Id. at 1219. Even if the

request to search for the key was a ruse, however, the court did not consider

whether such a ruse violated the voluntariness of consent. Instead, the question

was whether the search exceeded the scope of consent. Although the officers

executing the search were looking for weapons, the court noted that the gun

discovered during the search was located in a place where a car key would

reasonably fit. Id. at 1224. The facts are further distinguishable because the

consenting party in Kimoana had confessed to stealing the car, see id. at 1219,

and therefore understood that the officers were searching for evidence of

criminality. 

-9-

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.5

 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. 

The government denies the Agents implied Mr. Harrison was in danger. It

argues the district court’s ruling should be reversed because “Agent Brenneman

did not make a false assertion that someone might have planted a bomb in the

apartment; rather he made a false accusation of criminality.” Aplt. Br. at 26. In

other words, the government claims the Agents were accusing Mr. Harrison of

violating the law by possessing drugs and bombs in the apartment. The

government argues a reasonable person would not have assumed the “drugs and
-10-

bombs” comment meant he or she was in danger.

The district court found this interpretation implausible. The district court,

having heard the Agents’ testimony regarding their search, is best suited to make

inferences, deductions, and conclusions from the evidence presented on the

motion to suppress. See Mendoza-Salgado, 964 F.2d at 1011. “‘Where there are

two permissible views of the evidence, the factfinder’s choice between them

cannot be clearly erroneous.’” United States v. Pikyavit, 527 F.3d 1126, 1130

(10th Cir. 2008) (quoting Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)). 

Even if the government’s interpretation of the Agents’ statements were plausible,

the district court made a permissible interpretation of the Agents’ statements to

Mr. Harrison, and we will not disturb this finding. We therefore accept the

district court’s finding that the Agents’ statements implied a bomb may have been

planted in the apartment.

Although government agents are not required to advise a defendant that he

or she has a right to refuse consent to search, this is one factor considered in the

totality of circumstances. Schneckloth, 412 U.S. at 249; see also Sawyer, 441

F.3d at 895. However, government actions are coercive when they imply an

individual has no right to refuse consent to search. E.g., Bumper v. North

Carolina, 391 U.S. 543, 550 (1968) (“When a law enforcement officer claims

authority to search a home under a warrant, he announces in effect that the

occupant has no right to resist the search. The situation is instinct with coercion
-11-

. . . . Where there is coercion there cannot be consent.”); Edison v. Owens, 515

F.3d 1139, 1147 (10th Cir. 2008) (holding a statement is coercive when it

“indicates that there are punitive ramifications to the exercise of the constitutional

right to refuse consent”); United States v. Medlin, 842 F.2d 1194, 1198 (10th Cir.

1988) (affirming suppression of evidence because “it seems reasonable that

Medlin would have believed when faced by federal and state officers with guns

drawn that he had no right to resist” the search); see also McCurdy, 40 F.3d at

1119 (“An officer’s request for consent to search does not taint an otherwise

consensual encounter ‘as long as the police do not convey a message that

compliance with their request is required.’” (quoting United States v. Griffin, 7

F.3d 1512, 1517 (10th Cir. 1993)). 

This same principle applies when deceit or trickery is used to imply an

individual has no ability to refuse consent. See, e.g., United States v. Hardin, 539

F.3d 404, 424-25 (6th Cir. 2008) (“[A]lthough a ruse or officers’ undercover

activity does not usually violate individuals’ rights, we have noted that where, for

example, the effect of the ruse is to convince the resident that he or she has no

choice but to invite the undercover officer in, the ruse may not pass constitutional

muster.” (footnote, alteration, and internal quotation marks omitted)); United

States v. Escobar, 389 F.3d 781, 786 (8th Cir. 2004) (holding consent to luggage

search was involuntary when police falsely claimed a drug dog had alerted on the

bag, because police may not “convey a message that compliance with their
6

 The government also argues the Agents did not imply by their conduct

that they had lawful authority to search Mr. Harrison’s apartment even without

his consent. The district court made no finding that the Agents were asserting

lawful authority to search without consent, but found circumstances were

sufficiently coercive to undermine consent even without such an assertion. Since

we affirm the district court on this ground, we need not consider this argument.

-12-

requests is required”). Not all deceit and trickery is improper, but “when the

police misrepresentation of purpose is so extreme that it deprives the individual of

the ability to make a fair assessment of the need to surrender his privacy . . . the

consent should not be considered valid.” 2 Wayne R. LaFave et al., Criminal

Procedure § 3.10(c) (3d ed. 2007).

Even the government concedes that just as it would violate the Fourth

Amendment for an officer to induce consent by pointing a gun at a suspect, it

would also violate the Fourth Amendment for the ATF to induce consent by

falsely claiming that someone had planted a bomb in Mr. Harrison’s apartment.

Aplt. Br. at 25-26. Under the district court’s interpretation of the Agents’

statements, this was precisely the effect of the Agents’ misrepresentation. Mr.

Harrison reasonably could have believed he and others were at risk of harm if

there actually was a bomb in the apartment. This would have left him with two

options: (1) deny consent to search and accept the risk that a bomb had been

planted in the apartment; or (2) consent to the search. Consent under these

circumstances cannot be said to be free of coercion.6

 

Finally, the government argues that consent was voluntary because there
-13-

was no evidence that Mr. Harrison felt coerced by their statements. It emphasizes

that the Agents did not explicitly tell Mr. Harrison that there was a danger to him

or anyone else. Additionally, in the government’s view, Mr. Harrison initially

disclaimed authority to consent to the search, granted consent only after “it was

negotiated with a promise not to prosecute” for a “bag of weed,” Aplt. Br. at 15,

and he remained in the house during the search without asking to leave the

apartment. But, as the district court noted, Agent Brenneman did tell Mr.

Harrison they needed to investigate to “see if there’s any threat or danger to the

community.” Aplt. App. at 20-21. Although the Agents may not have explicitly

told Mr. Harrison that he was in danger, the district court concluded this was the

effect of the Agents’ statements. Similarly, Agent Withem’s assurance that Mr.

Harrison would not be penalized if they found a “bag of weed” only further

emphasized that bombs, not drugs, were the focus of their concern. 

Nor are we convinced that the district court’s judgment is undermined by

the lack of evidence that Mr. Harrison felt coerced. Mr. Harrison’s willingness to

remain inside the apartment during the search does not prove he did not feel

threatened by the possibility of a bomb. Mr. Harrison’s interpretation of the

immediacy of the threat posed by any bombs likely was affected by the dress and

demeanor of the ATF Agents. Like Mr. Harrison, the Agents were not wearing

protective gear while conducting the search for “drugs and bombs.” Given the

circumstances, Mr. Harrison reasonably could have believed the Agents would
-14-

evacuate the premises or call the bomb squad if and when explosives were found. 

Mr. Harrison’s apparent willingness to sit in the living room with Agent Withem

during the search does not require a finding that he felt no threat by the

possibility of a bomb. 

Moreover, we have previously affirmed the suppression of evidence from

searches when the circumstances were “inherently coercive,” without comment as

to whether the defendant expressed subjective fear in the situation. See Medlin,

842 F.2d at 1198. Although an individual’s subjective state is certainly a factor

to be considered in analyzing the totality of the circumstances, Schneckloth, 412

U.S. at 229, it is but one factor in the analysis, see United States v. SanchezValderuten, 11 F.3d 985, 990 (10th Cir. 1993). Even considering Mr. Harrison’s

reaction to the Agents’ “drugs and bombs” statement, the district court did not

clearly err in finding the consent was involuntary under the totality of the

circumstances. 

We emphasize that it is not the defendant’s burden to prove that he was, in

fact, coerced. Instead, the government bears the burden of showing that the

defendant was not coerced. Here the district court found the government failed to

meet this burden. This finding is not clearly erroneous. 

Accordingly, we AFFIRM.