Creating False Exigency Negates Defendant’s Consent to Search
Federal agents should have reasonably known that arriving at a defendant’s front door with ten agents to address a false exigency would have impermissibly coerced the defendant into consenting to a search of his home and computer, the First Circuit recently held.
On October 23, 2013, approximately ten federal agents appeared without a warrant at the front door the home that David Págan-González shared with his parents in Cabo Rojo, Puerto Rico. The agents believed that a computer transmitting child pornography was located inside.
Special Agent Ana Moreno identified herself to the family as an FBI agent and reported that officers were there because a modem in a computer at the house was “sending a signal and/or viruses to computers in Washington.” The agents asked the family for consent to inspect their computers, and said they would try to fix the modem that was sending transmissions to Washington. The agents explained that if they could not make the repair, they would take the faulty computer and provide a replacement at the FBI’s expense. Págan-González and his parents then signed consent forms authorizing the computer searches.
After inspecting it, agents seized Págan-González’s computer and Págan-González was later federal charged with transporting and receiving child pornography.
Págan-González moved to suppress the evidence obtained from the search of his computer, arguing that the agents’ misrepresentations about their investigative purpose limited or vitiated his family’s consent for examination of their computers. Instead of responding to the motion, the government moved to dismiss the case “[i]n the interests of justice.”
On December 12, 2014, Págan-González and his parents filed a Bivens suit in U.S. District Court for the District of Puerto Rico against Special Agent Moreno and two other officers involved in the October 23, 2014 computer seizure.
Págan-González alleged he consented to the officers’ entry and search only because the agents stated that they were looking for the source of the “signal and/or viruses” that had been detected in Washington, D.C. Hence, he argued, the search and seizure of their computers violated the Fourth Amendment because they were “tainted by Defendants’ lie about the true reason” of “why there were there” and “what they were looking for.”
On the Defendants’ motion, the court dismissed the case for failing to state a claim. Págan-González appealed the district court’s dismissal to the U.S. Court of Appeals for the First Circuit, which reviewed the matter de novo.
“It is beyond debate that deception is a well-established and acceptable tool of law enforcement,” and “undercover investigations in which government agents misrepresent their identities are ubiquitous and viewed as essential in the detection of crime,” the appellate court acknowledged. That right to deceive, however, “is not unbounded.” One such limitation is that “government agents’ deceptive tactics must not prevent a target from making an essentially free and unconstrained choice to forgo the constitutional protection of a warrant.”
But whereas undercover work is a constitutionally acceptable deception because targets freely expose their criminal conduct to others, the court held, “[t]he dynamic is meaningfully different…when police officers identify themselves as such but misrepresent their purpose.” As other courts have held, the First Circuit observed, private individuals have “the right to expect that the government, when acting in its own name, will behave honorably.”
Yet still, the court wrote, lying about the purpose of an investigation is “not categorically off-limits in obtaining consent to search.” The question is “whether the deception in context rendered the consent involuntary,” to which there is no “bright line” answer. But “court have uniformly recognized” that the Fourth Amendment may be violated when consent is obtained through a law enforcement officer’s “lies conveying an exigent need for the search.” Such deception may vitiate the voluntariness of the resulting “consent.”
The First Circuit then turned to the specifics of Págan-González’s appeal. “Against the backdrop” of the aforementioned case law, the court held “we have little difficulty concluding that the entry and search as alleged in Págan-González’s complaint violated the Fourth Amendment.” To reach that conclusion, the court explained that the severity of the purported threat and the number of agents dispatched to address it presented a fabricated emergency pressured Págan-González into believing he had no choice but to allow the agents access to his home and computer.
The court then further held the Defendants were not protected by qualified immunity from Págan-González’s suit, addressed the other arguments on appeal, and vacated the district court’s dismissal of Págan-González’s search-based Fourth Amendment claim and remanded the case for further proceedings.
Read the full opinion: Págan-González v. Moreno, et. al
This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.