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Trump Judge Newsom Upholds Warrantless Search Premised on Agents’ Lies: Confirmed Judges, Confirmed Fears

News and Analysis
Trump Judge Newsom Upholds Warrantless Search Premised on Agents’ Lies: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

With Trump judge Kevin Newsom casting the deciding vote, a divided 11th Circuit panel ruled that a man had consented to a search of his home, even though the only reason he had let the agents in was because they’d lied about who they were and why they were there. The September 2019 case is United States v. Calderon-Fuentes.

Two men identifying themselves as Homeland Security investigators falsely told Jose Calderon-Fuentes that they had national security reasons to ask him about his foreign contacts. In fact, one of them was a Veterans Administration (VA) investigator, and they were really looking for evidence that Calderon-Fuentes had been fraudulently receiving VA benefits for blindness. Their deception worked: He let them in and they found the evidence they were looking for without having to ask a judge for a search warrant. When Calderon-Fuentes was prosecuted, he claimed his Fourth Amendment rights had been violated. But with Trump judge Kevin Newsom casting the deciding vote, an 11th Circuit panel ruled that he had freely consented to the search.

Judge Beverly Martin vigorously dissented, citing a binding 1977 circuit precedent called U.S. v. Tweel, which held that searches are generally not reasonable if agents induce consent by deceit. Tweel was the basis of a circuit ruling four years later that it is “clearly improper for a government agent” to invoke someone’s trust in the government, only to betray that trust. She criticized the majority for trying to “get out from under Tweel.” The majority cited a 2017 case called U.S. v. Spivey, which did not apply Tweel and instead upheld a search that had been based on deception.

Judge Martin explained that the majority in Spivey had specifically noted that that case differed from Tweel because Spivey had been aware of the criminal nature of the investigation. She wrote that since Calderon-Fuentes had not known that the agents suspected him of criminal conduct, Tweel applies, his Fourth Amendment rights had been violated, and the evidence gained by deception should not be allowed.