Key Phrases: Consent, Deception, Qualified Immunity, Search

Back in October of 2013, ten federal Special Agents went to the door of the plaintiff Pagan- Gonzalez who lived with his parents in Puerto Rico.  One of the agents told the plaintiff that they were there because a modem or computer in the house was “sending a signal and/or viruses to computers in Washington.” This was not true. The agents believed a computer at that address contained child pornography and they were there on a criminal investigation.  The agents asked for permission to inspect all the computers and promised to either repair the defective computer or replace it at government expense. The agents seized Pagan’s laptop which was found to contain child pornography for which the plaintiff was indicted.  Prior to trial, Pagan fought to suppress the evidence based on the deception used to gain consent for the warrantless search.  Rather than argue the motion, the government dismissed the case.  Pagan then filed a Bivens action against the federal agents.

The First Circuit noted that the “sanctity of the home is at the core of the Fourth Amendment’s protection against unreasonable governmental intrusions.” The court held that under a totality of the circumstances the deception that was used negated the voluntariness of the consent making the warrantless search unreasonable under the Fourth Amendment.  Courts have repeatedly held that officers cannot claim false authority (a warrant they don’t have) or falsely indicate exigent circumstances where none exists, in order to gain consent to enter a dwelling.  Moving to the “clearly established” prong of the Qualified Immunity inquiry, the First Circuit held that a reasonable law enforcement officer would have understood that the false report of a virus threatening computers in Washington, D.C., conveyed to Pagán-González at his home by a force of ten federal agents identified as such, was materially equivalent to the ruses in the fabricated emergency precedent and therefore it was a clearly established violation of the Fourth Amendment.   Accordingly, qualified immunity was denied.

To read or download the full opinion CLICK HERE