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).