United States v. Spivey, (11th Cir. 2017)
Caleb Hunt burgled the home of Austin and Spivey. Twice, in fact. He found the takings so good the first time that he returned. Austin and Spivey had their own criminal enterprise involving credit card fraud and they stored the ill-gotten high-end merchandise at their home. Austin and Spivey reported the first burglary and installed a new alarm system. Police were summoned to the second burglary by the burglar alarm. Spivey also called the police, but not before he hid some of his contraband.
Austin and Spivey didn’t know the police had already caught Hunt. Nor did they know that Hunt admitted he burglarized the home twice because of the abundance of high-end goods. Hunt told officers the home contained devices for forging credit cards.
Two officers, one acting as a crime scene technician, went to the home and asked to inspect it for evidence of the burglary. Spivey invited them in. The pseudo-tech pretended to dust for fingerprints. Spivey provided surveillance video of the burglary.
Once the officers saw a credit card embossing machine, stacks of credit cards and a trove of new, expensive goods, the officers told Spivey and Austin that they investigated credit card fraud. The officers asked to search the entire house. Austin consented. Spivey signed a waiver of a search warrant.
The officers found a weapon, drugs and additional evidence of fraud. Austin and Spivey were charged with several crimes. They claimed that Spivey’s consent to search was the product of an illegal trick.
The court observed that Austin had made a tactical decision to call the police, apparently hoping that the police would catch the burglar. A ruse can invalidate consent when officers claim legal authority they lack, or when an officer falsely claims there are exigent circumstances. Here, however, “the officers’ ‘ruse’ was a relatively minor deception that created little, if any, coercion … Prior planning proves that Austin and Spivey understood that asking for the officers’ assistance came with the risk that their own crimes would be discovered.”