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Consent and Warrantless Searches, 1st Cir Offers Guidance

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By Gabriella Khorasanee, JD on July 25, 2013 3:56 PM

The Fourth Amendment forbids warrantless searches with few exceptions — one of them being consent. But, what happens when consent is given based on false claims made by law enforcement? Is the resulting warrantless search legal?

In United States v. Vasquez, the First Circuit Court of Appeals offers clarity on this fuzzy situation.

In 2007, an FBI informant gave a tip that Kathy Vasquez and her boyfriend Bernardo Soto were selling crack cocaine. Kathy Vasquez sold crack cocaine to the informant on two separate occasions, in controlled buys. A third controlled buy was scheduled but did not result in a sale. That day, Soto was arrested in a parking lot for a parole violation.

Promptly after Soto's arrest, two FBI agents, dressed in plain clothes, approached Vasquez and asked if she would join them for coffee at a nearby Dunkin Donuts. Explaining that Soto was arrested for a parole violation, the agents sought Vasquez's cooperation in the investigation. Vasquez made it clear that she did not want to cooperate.

Next, the FBI tried to gain Vasquez's consent to a search of her home, where Soto allegedly lived with her. She asked whether the agents had a search warrant; they did not. They then told her that "while they did not have a warrant, New Hampshire Probation and Parole had the authority to search her home without her consent, and were going to do so." Seemingly left with no other option, she consented to the search.

As a result of the warrantless search, agents found powder cocaine, baggies, a scale, cutting agents, and cash. Because of this evidence, Vasquez was convicted of possession of cocaine with intent to distribute. She moved to suppress the evidence at trial, and the district court denied her motion. On appeal, she claimed that the evidence found during the warrantless search was inadmissible.

The First Circuit found that the district court erred in applying a subjective standard to whether the FBI agents made their assertions regarding warrantless search in good faith. Instead, the First Circuit held "that the agents' subjective good faith is not enough. The Fourth Amendment by its express terms demands that searches be 'reasonable' not merely based on good intentions."

Because the district court erred by applying a subjective, rather than objective standard, the First Circuit remanded the question of whether the agents reasonably made a false claim to make a warrantless search.

This case is significant because there is clear case law where law enforcement knowingly makes false statements to obtain consent, and where law enforcement makes true statements about inevitable lawful search. Here, the case had to determine what happened where law enforcement unknowingly made false statements to obtain consent.

Until this reaches the Supreme Court, the First Circuit holds that an objective standard must apply to determine whether agents were reasonable in their mistaken assumptions.

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