The opinion of the court was delivered by: Weinstein, District Judge.
Defendant was indicted on one count of possession with
intent to distribute cocaine on March 15, 1990. He moved to
suppress evidence found in a search of his apartment. An
evidentiary hearing was held. The court credited the
testimony of the government agents and made the following
findings of fact.
One of the agents knocked on the door of defendant's
apartment. She pretended to be a gas company worker and told
defendant she was checking for a gas leak. Defendant opened
the door, and the agent asked him if he smelled gas.
Defendant invited the agents in, believing them to be gas
company workers. The agents entered the apartment and
identified themselves as police officers. They did not draw
their guns. They asked defendant to identify himself, which
he did. One of the agents asked defendant if there were any
drugs, weapons or other persons in the apartment. He answered
no. The agents asked for permission to search the apartment.
Defendant granted it. There was no overt coercion. Defendant
then read, understood and signed a statement of written
consent to search. All of these events occurred within a few
The agents proceeded to search the apartment. They found
cocaine, a large amount of cash and various papers.
Some courts have extended Lewis to cases where an undercover
agent gains entry to a dwelling pursuant to some lawful
behavior. See, e.g., United States v. Scherer, 673 F.2d 176
(7th Cir.), cert. denied, 457 U.S. 1120, 102 S.Ct. 2935, 73
L.Ed.2d 1334 (1982); United States v. Wright, 641 F.2d 602 (8th
Cir.), cert. denied, 451 U.S. 1021, 101 S.Ct. 3014, 69
L.Ed.2d 394 (1981) (agent pretended to have car trouble and
wanted to borrow tools).
The case at bar is distinguishable from the Lewis line
because of the nature of the police deception. By claiming
there was a possible gas leak, defendant was led to believe
there was a life-threatening emergency. His decision to admit
the agents was thus not "voluntary." Defendant's only "free
choice" in this case was to have refused entry to the "gas
company" and risk blowing up himself and his neighbors. See
People v. Jefferson, 43 A.D.2d 112, 350 N.Y.S.2d 3 (1973)
(excluded evidence in plain view where police gained entry by
identifying themselves as police but claiming to be
investigating a gas leak).
Even if the courts permit some forms of deception to gain
entry to a private dwelling, there are sound public policy
reasons for distinguishing the type of deception engaged in
here. We take judicial notice of the suspicion with which the
police, fire departments and public utilities are regarded in
many poor urban communities. In order to ensure cooperation
in truly life-threatening situations, it is vital to maintain
the public trust in emergency services. When the police or
the gas company come to the door warning of a real gas leak
or other life-threatening emergency, it is in everyone's
interest that they be believed. Sanctioning the type of
deception engaged in here would send a message to all those
with reason to fear "the system" (whether they be law abiding
or law breaking) that emergency warnings cannot be trusted.
False cries of "wolf" have never been condoned by society.
Residents should be habituated to assist in calls for public
assistance by emergency services. Any other rule would risk
serious dangers to life if people refused to open their doors
or vacate the premises in case of fire, toxic fumes, gas
leaks, flooding or the like.
The original entry was illegal. "Consent" was obtained by
falsely inducing fear of an imminent life-threatening danger.
Was the subsequent written consent a valid waiver of the
right to keep the police from conducting a warrantless
search? In order for such consent to be effective, the
government must prove not simply that the consent was
granted, but also that it was independent of a prior illegal
taint. The Supreme Court has established as a test
whether granting establishment of the primary
illegality, the evidence to which instant
objection is made has been come at by
exploitation of that illegality or instead by
means sufficiently distinguishable to be purged
of the primary taint.
Brown v. Illinois, 422 U.S. 590, 599, 95 S.Ct. 2254, 2259, 45
L.Ed.2d 416 (1975) (citing Wong Sun v. United States,
371 U.S. 471, 487-88, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963)).
Factors for the court to consider in determining whether the
subsequent act was free of the prior illegality's aura include
"the temporal proximity" of the illegal conduct and the
consent, "the presence of intervening circumstances, and,
particularly, the purpose and flagrancy of the official
misconduct. . . . The voluntariness of the statement is a
threshold requirement." Brown v. Illinois, 422 U.S. 590,
603-04, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416 (1975) (citations
Here written consent was not free of the taint of the
deceptive entry. Only a few minutes passed between the time
the agents entered illegally and written consent
to search was granted. ...