We Can Do This the Easy Way or the Hard Way: The Use of Deceit to Induce Consent Searches

In October of 1995, Aaron Salvo was studying and living at Ashland College. College officials informed local FBI agents that they suspected Salvo of possible child molestation and related conduct based on incriminating electronic mail. FBI agents approached Salvo at his dormitory, asked to speak with him in private about the suspicious mail, and suggested they speak in Salvo’s dorm room. Salvo agreed to speak with the officers, but declined to do so in his room because his roommate was there, and he did not want to get anyone else involved in the embarrassing nature of the upcoming conversation. Salvo claimed that during the conversation in another room, an FBI agent requested permission to search Salvo’s room by telling Salvo “we can do it discreetly or go to the Courthouse and talk to the Ashland County Prosecutor, get a warrant and be back with uniformed police to conduct the search, and he [Salvo] would be excluded from the room.” Another agent told Salvo that the first agent “was not playing games, and would search his room whether Salvo let him or not.” At a hearing to suppress the evidence discovered during the search of his room, Salvo argued that his consent was coerced because he did not feel like he could choose to refuse his consent. The district court found that Salvo’s consent was involuntary because of the FBI agent’s statement that “they could do it the easy way or the hard way.” The Sixth Circuit overturned the district court’s ruling by holding that “[i]t is well-settled that the agent’s statements to the effect that he would obtain a warrant if Salvo did not consent to the search does not taint Salvo’s consent to a search.” The court reasoned that since the FBI agents would have been able to obtain a warrant if they had sought one, the threat was not “baseless” and therefore not coercive. A few years before Salvo’s experience, the South Carolina police stopped Furman Lattimore’s car for speeding. The police officer asked to search Lattimore’s car for narcotics or contraband. Lattimore asked the officer to confirm that if he didn’t consent, the officer would search his car anyway. The officer confirmed his suspicion: “If you don’t, I feel you’re hiding something. Therefore, I’ll call a drug dog right up the road to come down here and let him search the car.” Lattimore signed the consent form, but later moved to suppress the evidence seized pursuant to the search. The district court ruled that his consent was voluntary, even though it was “concerned” with the statement about the drug dog. The Fourth Circuit upheld the search despite the government’s concession that the police officer did not have the legal authority to permit a drug dog to sniff Lattimore’s car. Both cases illustrate the problem that this Note addresses: when law enforcement informs the subject of a search that they will search the premises with or without the subject’s consent, is the resulting consent valid?