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US v. Gallegos, A Tale of Deceit and Consent: The Fifth Circuit Rules on 4th Amendment Challenge to Cell Phone Extraction and Search

In the recent United States v. Gallegos, the Fifth Circuit considered a defendant’s Motion to Suppress evidence of child pornography that had been found during review of cell phone data extracted from the defendant’s cell phone.  Overturning the District Court’s decision to suppress the evidence, the Fifth Circuit held that the defendant had consented to review of his data by signing a government form.  But there was a dissent in the case, and even the majority seemed interested in the question of whether a government agent’s lies to the defendant may have vitiated his consent to the search.  Unfortunately, the defendant did not raise that issue.  The opinion is also an interesting example of the increasingly digital nature of modern criminal investigations.

The Gallegos case began with an investigation into a person-smuggling ring allegedly run by Gallegos’s mother.  During the execution of a search warrant at the mother’s house, the mother asked the agents if her minor children could be released into the custody of their older brother, Gallegos.  The agents agreed, but not without ulterior motive:  Gallegos was also suspected in the smuggling ring, and the agents wanted to talk with him.  When Gallegos arrived, the agents told him that they would need to search his cell phones and vehicle before releasing the children to him.  Although the true purpose of the agent’s request was to search for evidence related to the smuggling ring, they told Gallegos they needed to perform the search in order to ensure the safety of the minor children.  Gallegos signed a generic and broad consent form agreeing to the searches.

Instead of doing a manual search of Gallegos’s phones on the spot, the agents performed a “logical” extraction of the data from the phones.  A “logical” extraction sucks any non-deleted data off of the phone and stores it so that it can be reviewed later.  (A “physical” extraction from the phone would have also pulled any recoverable deleted data off the phone.)  Gallegos was present for one of the logical extractions, but not the other.

Three days after the extractions were completed, the agents reviewed the data from one of the phones and discovered child pornography.  Importantly, this evidence came from the phone that was extracted outside of Gallegos’s presence.  Gallegos was then charged with possession of the pornography.

Gallegos sought to suppress the evidence from the cell phone, and, after a hearing, the District Court agreed.  The District Court reasoned that because the agents did not review the data from the cell phone in Gallegos’s presence and until days after they had returned his phones to him, the search of the data exceeded the scope of his consent.

In a divided opinion, the Fifth Circuit disagreed.  Essentially, the Circuit court held that the broad language of the consent form Gallegos signed, coupled with the fact that Gallegos had seen the agents performing the logical extraction on one of the phones and had not objected at the time, meant that he could not later object that the agents had exceeded the scope of his consent.  Any reasonable person would have realized that the data from the phones was being stored for later review, the Circuit held, and it was up to Gallegos to limit the scope of his consent at the time the agents were interacting with him.

As noted, however, the dissent in the case agreed with the District Court that the agents had exceeded the scope of Gallegos’s consent by extracting one of the phones outside of his presence and reviewing the material later.

Although Gallegos did not argue that the agents’ deception vitiated his consent to the search, it is an interesting question.  Here is a good summary of the law regarding how far police authorities can go in lying to a suspect:

“A consensual search is constitutional if it is voluntary; if it is the product of an ‘essentially free and unconstrained choice.’ ” United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001) (quoting Schneckloth, 412 U.S. at 225, 93 S.Ct. 2041). Voluntariness is “not susceptible to neat talismanic definitions; rather, the inquiry must be conducted on a case-by-case analysis” that is based on “the totality of the circumstances.” United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989) (citing Schneckloth, 412 U.S. at 224–25, 93 S.Ct. 2041). Relevant factors include the “voluntariness of the defendant’s custodial status, the presence of coercive police procedure, the extent and level of the defendant’s cooperation with police, the defendant’s awareness of his right to refuse to consent to the search, the defendant’s education and intelligence, and, significantly, the defendant’s belief that no incriminating evidence will be found.” Chemaly, 741 F.2d at 1352(citation omitted).

Deceit can also be relevant to voluntariness. Because we require “that the consent was not a function of acquiescence to a claim of lawful authority,” Blake, 888 F.2d at 798, deception invalidates consent when police claim authority they lack. For example, when an officer falsely professes to have a warrant, the consent to search is invalid because the officer “announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion—albeit colorably lawful coercion.” Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). And when an officer lies about the existence of exigent circumstances, he also suggests that the occupant has no right to resist and may face immediate danger if he tries. See, e.g.United States v. Harrison, 639 F.3d 1273 (10th Cir. 2011) (agents falsely implied that a bomb was planted in the apartment they sought to search). Deception is also likely problematic for consent if police make false promises. See United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (“There were no promises made to him and no indication of more subtle forms of coercion that might flaw his judgment.”); cf. Alexander v. United States, 390 F.2d 101, 110 (5th Cir. 1968) (“We do not hesitate to undo fraudulently induced contracts. Are the disabilities here less maleficent?”).

In the tax context, we have ruled that when a taxpayer asked whether a “special agent” was involved in the investigation and the Internal Revenue Service answered “no,” consent was involuntary because it was induced by an official misrepresentation that suggested the investigation was only civil, not criminal. United States v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977). Contrary to the dissent’s assertion that “consent searches are almost always unreasonable” when induced by deceit, Dissenting Op. at 1220 (citing Tweel, 550 F.2d at 299), we have never applied this decision outside the administrative context, let alone to a situation in which the suspect is aware of the criminal nature of the investigation. This limitation makes sense in the light of the rule that police officers are permitted to obtain a confession through deception under the Fifth Amendment. See Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) (“Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns.”); see also United States v. Peters, 153 F.3d 445, 463 (7th Cir. 1998) (Easterbrook, J., concurring) (“If a misunderstanding of one’s status as a target—misunderstanding abetted by calculated silence and half-truths from agents and prosecutors—does not invariably make a statement involuntary, why should it make a disclosure of physical evidence involuntary?”).

The Fourth Amendment allows some police deception so long the suspect’s “will was [not] overborne,” Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041. Not all deception prevents an individual from making an “essentially free and unconstrained choice,” id. at 225, 93 S.Ct. 2041. For example, undercover operations do not invalidate consent. Lewis v. United States, 385 U.S. 206, 206–07, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966). When an undercover agent asks to enter a home to buy drugs, the consent is voluntary despite the agent’s misrepresentations about his identity and motivation. Id. “If dissimulation so successful that the suspect does not know that he is talking to an agent is compatible with voluntariness, how could there be a rule that misdirection by a known agent always spoils consent?” Peters, 153 F.3d at 464 (Easterbrook, J., concurring). Although we distinguish undercover investigations from those where the officer is “seeking … cooperation based on his status as a government agent,” United States v. Centennial Builders, Inc., 747 F.2d 678, 682 (11th Cir. 1984), an individual who interacts with officers undertakes a knowing risk that the officers may discover evidence of criminal behavior. Cf. United States v. Wuagneux, 683 F.2d 1343, 1348 (11th Cir. 1982) (“[A]ll taxpayers, especially businessmen, are presumed to be aware of th[e] possibility” “that a routine civil audit may lead to criminal proceedings if discrepancies are uncovered.”). That “fraud, deceit or trickery in obtaining access to incriminating evidence can make an otherwise lawful search unreasonable,” United States v. Prudden, 424 F.2d 1021, 1032 (5th Cir. 1970) (emphasis added), does not mean that it must. Particularly because physical coercion by police is only one factor to be considered in the totality of the circumstances, see Chemaly, 741 F.2d at 1352, we should approach psychological coercion the same way. The district court correctly stated the law when it explained that deception does not always invalidate consent.