SEYMOUR, Circuit Judge.
Mr. Harrison was charged by indictment with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). The firearm at issue was discovered by agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") during a warrantless search of Mr. Harrison's apartment. Mr. Harrison moved to suppress evidence of the loaded firearm, arguing he had not voluntarily consented to the search. The district court held a suppression hearing and agreed with Mr. Harrison that deceitful tactics used by the ATF to gain consent to search rendered Mr. Harrison's consent involuntary. The court granted the motion to suppress. The United States appeals, and we affirm.
According to testimony given during the suppression hearing, ATF Agent Stephen Brenneman began investigating Mr. Harrison after receiving information that he owed a thousand dollars to a suspected firearms trafficker and was selling drugs out of his apartment. Agent Brenneman conducted surveillance of Mr. Harrison's
On the day of the search, the Agents were dressed in plain clothes with their badges around their necks. Although they were armed, their firearms were not visible. The Agents went to Mr. Harrison's apartment and knocked on the door. Without opening the door, Mr. Harrison responded from inside the apartment, "Who is it?" Aplt.App. at 17. Agent Brenneman replied, "It's Steve." Id. Mr. Harrison said something to the effect of, "Hold on a minute." Id. Two or three minutes passed before Mr. Harrison opened the door. During this time, Agent Brenneman periodically continued to knock. When Mr. Harrison opened the door, the Agents identified themselves as law enforcement officers and asked if they could come inside to talk. Mr. Harrison agreed to talk and introduced himself.
Agent Brenneman told Mr. Harrison they were there because, "our office received an anonymous phone call there were drugs and bombs at this apartment,"
Mr. Harrison explained that he did not know if he could give permission because it was his girlfriend's apartment. Agent Brenneman told Mr. Harrison that he could consent because he lived there and had control of the apartment. Agent Withem then assured him, "We're not here to bust you on a bag of weed.... We have bigger fish to fry than a small bag of weed." Id. at 53. The Agents testified that Mr. Harrison then gave them permission to search the apartment.
After hearing the evidence, the district court granted the motion to suppress in an oral ruling. The court found as follows:
Id. at 84-85. The court explained,
Id. at 85-87. On appeal, the government contends the search was lawful because the Agents used a permissible form of deception to gain consent. It claims the Agents' conduct was not coercive because they did not represent that a bomb had been planted in the apartment, but instead they implied Mr. Harrison was unlawfully possessing drugs and bombs. It further argues Mr. Harrison did not feel subjectively threatened by the Agents, nor did they imply they had lawful authority to search without his consent.
"When we review an order granting a motion to suppress, we accept the trial court's factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the district court's finding." United States v. Zapata, 997 F.2d 751, 756 (10th Cir.1993) (internal quotation marks omitted). Whether consent was voluntarily given is a question of fact we review for clear error.
The government bears the burden of proving that consent is given freely and voluntarily. Id. at 222, 93 S.Ct. 2041. "[T]he question whether a consent to a search was in fact `voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Id. at 227, 93 S.Ct. 2041. Relevant considerations
United States v. Sawyer, 441 F.3d 890, 895 (10th Cir.2006) (citations omitted).
The government first contends the search of Mr. Harrison's apartment was reasonable because courts have repeatedly held that the government may use deception to gain entry to a residence. It is true that not all deception or trickery will render a search invalid. For example, "an undercover agent may gain entry to a person's home by deception and purchase narcotics with no violation of the fourth amendment." Pleasant v. Lovell, 876 F.2d 787, 802 (10th Cir.1989) (citing Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966)). But the government's reliance on this line of cases is misplaced. In cases involving undercover police work, the defendant does not know he or she is permitting the government to enter the premises. Unlike the defendants in those cases, Mr. Harrison did not "unwisely repose[] trust in what later turn[ed] out to be a government agent," Pleasant, 876 F.2d at 802. Instead, Mr. Harrison knew he was opening his home to law enforcement officials who have expertise in explosives. The question is whether the Agents' deceptive tactics in these circumstances rendered his consent involuntary.
Notwithstanding the legality of searches conducted by undercover agents, the "Fourth Amendment can certainly be violated by guileful as well as by forcible intrusions into a constitutionally protected area." Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). We have repeatedly held that deception and trickery are among the factors that can render consent involuntary. See, e.g., Sawyer, 441 F.3d at 895; United States v. McCurdy, 40 F.3d 1111, 1119 (10th Cir.1994). When government agents seek an individual's cooperation with a government investigation by misrepresenting the nature of that investigation, this deception is appropriately considered as
The government denies the Agents implied Mr. Harrison was in danger. It argues the district court's ruling should be reversed because "Agent Brenneman did not make a false assertion that someone might have planted a bomb in the apartment; rather he made a false accusation of criminality." Aplt. Br. at 26. In other words, the government claims the Agents were accusing Mr. Harrison of violating the law by possessing drugs and bombs in the apartment. The government argues a reasonable person would not have assumed the "drugs and bombs" comment meant he or she was in danger.
The district court found this interpretation implausible. The district court, having heard the Agents' testimony regarding their search, is best suited to make inferences, deductions, and conclusions from the evidence presented on the motion to suppress. See Mendoza-Salgado, 964 F.2d at 1011. "`Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.'" United States v. Pikyavit, 527 F.3d 1126, 1130 (10th Cir.2008) (quoting Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). Even if the government's interpretation of the Agents' statements were plausible, the district court made a permissible interpretation of the Agents' statements to Mr. Harrison, and we will not disturb this finding. We therefore accept the district court's finding that the Agents' statements implied a bomb may have been planted in the apartment.
Although government agents are not required to advise a defendant that he or she has a right to refuse consent to search, this is one factor considered in the totality of circumstances. Schneckloth, 412 U.S. at 249, 93 S.Ct. 2041; see also Sawyer, 441 F.3d at 895. However, government actions are coercive when they imply an individual has no right to refuse consent to search. E.g., Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) ("When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion.... Where there is coercion there cannot be consent."); Eidson v. Owens, 515 F.3d 1139, 1147 (10th Cir.2008) (holding a statement is coercive when it "indicates that there are punitive ramifications to the exercise of the constitutional right to refuse consent"); United
This same principle applies when deceit or trickery is used to imply an individual has no ability to refuse consent. See, e.g., United States v. Hardin, 539 F.3d 404, 424-25 (6th Cir.2008) ("[A]lthough a ruse or officers' undercover activity does not usually violate individuals' rights, we have noted that where, for example, the effect of the ruse is to convince the resident that he or she has no choice but to invite the undercover officer in, the ruse may not pass constitutional muster." (footnote, alteration, and internal quotation marks omitted)); United States v. Escobar, 389 F.3d 781, 786 (8th Cir.2004) (holding consent to luggage search was involuntary when police falsely claimed a drug dog had alerted on the bag, because police may not "convey a message that compliance with their requests is required"). Not all deceit and trickery is improper, but "when the police misrepresentation of purpose is so extreme that it deprives the individual of the ability to make a fair assessment of the need to surrender his privacy ... the consent should not be considered valid." 2 Wayne R. LaFave et al., Criminal Procedure § 3.10(c) (3d ed. 2007).
Even the government concedes that just as it would violate the Fourth Amendment for an officer to induce consent by pointing a gun at a suspect, it would also violate the Fourth Amendment for the ATF to induce consent by falsely claiming that someone had planted a bomb in Mr. Harrison's apartment. Aplt. Br. at 25-26. Under the district court's interpretation of the Agents' statements, this was precisely the effect of the Agents' misrepresentation. Mr. Harrison reasonably could have believed he and others were at risk of harm if there actually was a bomb in the apartment. This would have left him with two options: (1) deny consent to search and accept the risk that a bomb had been planted in the apartment; or (2) consent to the search. Consent under these circumstances cannot be said to be free of coercion.
Finally, the government argues that consent was voluntary because there was no evidence that Mr. Harrison felt coerced by their statements. It emphasizes that the Agents did not explicitly tell Mr. Harrison that there was a danger to him or anyone else. Additionally, in the government's view, Mr. Harrison initially disclaimed authority to consent to the search, granted consent only after "it was negotiated with a promise not to prosecute" for a "bag of weed," Aplt. Br. at 15, and he remained in the house during the search without asking to leave the apartment. But, as the district court noted, Agent Brenneman did tell Mr. Harrison they needed to investigate to "see if there's any threat or danger to the community." Aplt.
Nor are we convinced that the district court's judgment is undermined by the lack of evidence that Mr. Harrison felt coerced. Mr. Harrison's willingness to remain inside the apartment during the search does not prove he did not feel threatened by the possibility of a bomb. Mr. Harrison's interpretation of the immediacy of the threat posed by any bombs likely was affected by the dress and demeanor of the ATF Agents. Like Mr. Harrison, the Agents were not wearing protective gear while conducting the search for "drugs and bombs." Given the circumstances, Mr. Harrison reasonably could have believed the Agents would evacuate the premises or call the bomb squad if and when explosives were found. Mr. Harrison's apparent willingness to sit in the living room with Agent Withem during the search does not require a finding that he felt no threat by the possibility of a bomb.
Moreover, we have previously affirmed the suppression of evidence from searches when the circumstances were "inherently coercive," without comment as to whether the defendant expressed subjective fear in the situation. See Medlin, 842 F.2d at 1198. Although an individual's subjective state is certainly a factor to be considered in analyzing the totality of the circumstances, Schneckloth, 412 U.S. at 229, 93 S.Ct. 2041, it is but one factor in the analysis, see United States v. Sanchez-Valderuten, 11 F.3d 985, 990 (10th Cir. 1993). Even considering Mr. Harrison's reaction to the Agents' "drugs and bombs" statement, the district court did not clearly err in finding the consent was involuntary under the totality of the circumstances.
We emphasize that it is not the defendant's burden to prove that he was, in fact, coerced. Instead, the government bears the burden of showing that the defendant was not coerced. Here the district court found the government failed to meet this burden. This finding is not clearly erroneous.
Accordingly, we