861 F.3d 1207 (11th Cir. 2017), 15-15023, United States v. Spivey

Docket Nº:15-15023
Citation:861 F.3d 1207, 26 Fla.L.Weekly Fed. C 1652
Opinion Judge:WILLIAM PRYOR, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC JERMAINE SPIVEY, CHENEQUA AUSTIN, Defendants - Appellants
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: John C. Shipley, Assistant U.S. Attorney, Wifredo A. Ferrer, Jonathan E. Kobrinski, Emily M. Smachetti, U.S. Attorney's Office, MIAMI, FL. For CHENEQUA AUSTIN, Defendant - Appellant: Andrew L. Adler, Timothy Day, Federal Public Defender's Office...
Judge Panel:Before WILLIAM PRYOR, MARTIN, and BOGGS,[*] Circuit Judges. MARTIN, Circuit Judge, dissenting:
Case Date:June 28, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1207

861 F.3d 1207 (11th Cir. 2017)

26 Fla.L.Weekly Fed. C 1652

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

ERIC JERMAINE SPIVEY, CHENEQUA AUSTIN, Defendants - Appellants

No. 15-15023

United States Court of Appeals, Eleventh Circuit

June 28, 2017

          Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:15-cr-60082-WPD-2.

         For UNITED STATES OF AMERICA, Plaintiff - Appellee: John C. Shipley, Assistant U.S. Attorney, Wifredo A. Ferrer, Jonathan E. Kobrinski, Emily M. Smachetti, U.S. Attorney's Office, MIAMI, FL.

         For CHENEQUA AUSTIN, Defendant - Appellant: Andrew L. Adler, Timothy Day, Federal Public Defender's Office, FORT LAUDERDALE, FL; Michael Caruso, Federal Public Defender, Federal Public Defender's Office, MIAMI, FL.

         For ERIC JERMAINE SPIVEY, Defendant - Appellant: Michael G. Smith, The Law Offices of Michael G. Smith, FORT LAUDERDALE, FL.

         Before WILLIAM PRYOR, MARTIN, and BOGGS,[*] Circuit Judges.

          OPINION

         WILLIAM PRYOR, Circuit Judge:

         This appeal presents the question whether deception by law enforcement necessarily renders a suspect's consent to a search of a home involuntary. Chenequa Austin and Eric Spivey shared a home and a penchant for credit-card fraud. And they both became crime victims. Their home was twice burgled, which each time they reported to the police. Two officers, one posing as a crime-scene technician, came to their house on the pretense of following up on the burglaries, but mainly, unbeknownst to them, to investigate them for suspected fraud. The police had already caught the burglar who, in turn, had informed the police that Austin and Spivey's house contained evidence of credit-card fraud. Spivey hid some incriminating evidence in the oven before Austin invited the officers inside. The couple then provided the officers video footage of the burglary and led the officers through their home. After the officers saw a card-embossing machine, stacks of cards, and a lot of high-end merchandise in plain view, they informed Spivey that they investigated credit-card fraud. Spivey then consented to a full search that turned up a weapon, drugs, and additional evidence of fraud. Austin and Spivey moved to suppress all evidence obtained as a result of the officers' " ruse." The district court denied the motion to suppress because it found that Austin's consent to the initial search was voluntary and, alternatively, that Spivey's later consent cured any violation. Austin and Spivey each pleaded guilty to several offenses, conditioned on the right to pursue this appeal of the denial of their motion to suppress. Because Austin made a strategic choice to report the burglary and to admit the officers into her home, the district court did not clearly err in finding that Austin's consent was voluntary. We affirm.

         I. BACKGROUND

         Caleb Hunt twice burgled the Lauderhill, Florida, home of Chenequa Austin and Eric Spivey. Spivey reported the first burglary to the police. The second time, Hunt tripped a newly installed security system. Austin spoke with the police about the second burglary when officers responded to the audible alarm. When the police caught Hunt, he informed them that the residence was the site of substantial credit-card fraud. Indeed, Hunt told the police that the home " had so much high-end merchandise in it that he [burgled] it twice."

         Two members of the South Florida Organized Fraud Task Force then became involved. Special Agent Jason Lanfersiek works for the United States Secret Service investigating financial crimes, including credit-card fraud. Detective Alex Iwaskewycz works for the Lauderhill Police Department. The Task Force decided to have Lanfersiek and Iwaskewycz investigate Austin and Spivey's suspected fraud.

         The district court found that Lanfersiek and Iwaskewycz went to the residence " on the pretext of following up on two burglaries, which was a legitimate reason for being there, but not the main or real reason." Iwaskewycz displayed a gun and a badge. Lanfersiek wore a police jacket. Austin saw the agents approaching and went inside to warn Spivey and tell him to hide the card reader/writer in the oven. When the agents told Austin they were there to follow up on the burglary, Austin invited them in. The officers told Austin that Lanfersiek was a crime-scene technician for the police department, and Lanfersiek maintained the faç ade by pretending to brush for latent fingerprints. Austin led Lanfersiek and then Iwaskewycz through the house to the master bedroom, following the burglar's path. Spivey showed Iwaskewycz home-surveillance video of the burglary. A detective assigned to the burglary investigation later used that video evidence to help prosecute Hunt. Inside the home, both officers observed evidence of fraud, including a card-embossing machine, stacks of credit cards and gift cards, and large quantities of expensive merchandise such as designer shoes and iPads. Austin and Spivey separately told the officers that the embossing machine had been left in the apartment before they moved in. Iwaskewycz arrested Austin on an unrelated active warrant and removed her from the scene.

         The officers then ended their ruse and told Spivey that they investigated credit-card fraud. Nevertheless, Spivey remained cooperative. After being advised of his rights, he signed two forms giving his consent to the officers to conduct a full search of the home and a search of his computer and cell phone. In that search, officers recovered high-end merchandise, drugs that field-tested positive as MDMA, a loaded handgun, an embossing machine, a card reader/writer (found inside the oven), and at least seventy-five counterfeit cards.

         After a federal grand jury returned an indictment against them, Austin and Spivey moved to suppress all evidence procured as a result of the officers' " entry into Austin's residence . . . by fraud . . . which vitiated any consent." The district court denied the motion to suppress and rejected a " bright line rule that any deception or ruse vitiates the voluntariness of a consent-to search." The district court explained, " Austin wanted to cooperate in solving the burglaries; expensive shoes had been stolen." The district court found that " Spivey thought he could talk his way out of a predicament and was willing to risk exposure to credit[-]card prosecution to get his property back. Thieves usually don't report that the property that they stole has been stolen." And " any problem with [Austin's] initial consent was cured by Spivey's later signing a written waiver of a search warrant." It determined that " the government has shown by clear and positive testimony that the consents were voluntary, unequivocal, specific, intelligently given, and uncontaminated by duress or coercion."

         Both Austin and Spivey conditionally pleaded guilty. Austin pleaded guilty to conspiracy to commit access-device fraud and possess device making-equipment, 18 U.S.C. § 1029(b)(2), and aggravated identity theft, id. § 1028A(a)(1). Spivey pleaded guilty to conspiracy to commit access device fraud and possess device-making equipment, id. § 1029(b)(2), aggravated identity theft, id. § 1028A(a)(1), and being a felon in possession of a firearm, id. § 922(g)(1). Both pleas reserved the right to appeal the denial of the motion to suppress. The district court sentenced Austin to thirty-six months in prison and three years of supervised release and Spivey to seventy months in prison and three years of supervised release.

         III.

STANDARD OF REVIEW

          " A denial of a motion to suppress involves mixed questions of fact and law. We review factual findings for clear error, and view the evidence in the light most favorable to the prevailing party. We review de novo the application of the law to the facts." United States v. Barber, 777 F.3d 1303, 1304 (11th Cir. 2015) (citations omitted). Voluntariness is " a question of fact," Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), that we may disturb only if clearly erroneous, United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984). " Normally, we will accord the district judge a great deal of deference regarding a finding of voluntariness, and we will disturb the ruling only if we are left with the definite and firm conviction that the trial judge erred." United States v. Fernandez, 58 F.3d 593, 596-97 (11th Cir. 1995) (citation omitted). But we will review de novo the district court's application of the law about voluntariness to uncontested facts. See United States v. Garcia, 890 F.2d 355, 359-60 (11th Cir. 1989) (explaining that because " we believe[d] that the trial court['s]" " decision was based on the application of what he believed to be the existing law as applied to the uncontroverted facts," we " review[ed] the judge's finding of voluntariness de novo " ).

         IV. ...

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