NMSC: Warrant Threat Renders Consent Involuntary

State v. Lovato is an interesting little opinion about whether and when a threat to obtain a warrant can render consent to a search involuntary. Justice Nakamura.

Defendant owned property where he lived and ran a scrapyard. Neighbors had complained about alleged drug dealing at the property, and police chose to do a “knock and talk” to investigate.

A knock and talk is an investigative technique in which police go to a suspect’s home in an attempt to gain the suspect’s cooperation, or in other words, the suspect’s consent to search. No warrant is necessary to simply talk to a person, and no warrant is not necessary when the person consents to a search. According to the Court, this technique is common when police lack probable cause to obtain a warrant.

Here, police had no probable cause to search Defendant’s premises. The officer was, however, able to talk to Defendant. Unfortunately for the officer, he did not choose his words wisely. He explained that Defendant had two choices: consent to a search, or be arrested while police obtained a warrant. Critically, however, he went on to claim that he had “petitioned for over 222 search warrants and [he’d] never been denied one.”

Defendant chose to turn over some meth and marijuana to the officer. He subsequently pleaded guilty to one count of possession of a controlled substance.

The Motion to Suppress

Before trial, Defendant moved to suppress the meth and marijuana, arguing that his consent to search was coerced. Defendant claimed that police coerced him by threatening to obtain a search warrant if Defendant did not consent to the search. For reasons that are unclear, the only evidence offered by the State was a recording and transcript of the “knock and talk.” Defendant’s expert testified that there was no evidence in the police file of drug activity at Defendant’s home, and Defendant testified that although he did not want to consent, the officer’s threats persuaded him to do so.

The district court ultimately concluded that the consent was not coerced and denied the motion to suppress. Defendant entered a conditional plea and appealed. The court of appeals affirmed in a memorandum opinion. Judge Briana Zamora dissented, reasoning that Defendant’s consent was involuntary because he had acquiesced to a false claim of lawful authority. The New Mexico Supreme Court granted cert.

Consent Is Coerced When Police Unequivocally State They Will Get a Warrant

Whether consent to search is voluntary is a question of fact that depends on the totality of the circumstances. Voluntariness is evaluated utilizing a three-tiered analysis: (1) there must be clear and positive testimony that the consent was specific and unequivocal; (2) the consent must be given without duress or coercion; and (3) the first two factors are to be viewed in light of the presumption that disfavors the waiver of constitutional rights. Only the second and third factors were at issue here.

Because knock and talks often are used to obtain consent when there is no probable cause, courts scrutinize them carefully. In a prior case, the court of appeals stated that consent is not voluntary if it is a mere acquiescence to a claim of lawful authority. There, the officer had stated that he “felt” he could obtain a warrant. The court held that because the officer had not unequivocally stated he could obtain the warrant, the consent was not coerced.

Here, in contrast, the officer explained he had asked for hundreds of warrants and had never been denied. The court viewed this as a statement that a warrant was inevitable. Indeed, the Court had previously stated that “[w]hen an officer unequivocally asserts that he will be able to obtain a warrant, a defendant’s belief that refusal to consent would be futile demonstrates involuntary consent.” The only possible exception is if the officer in fact possessed probable cause to search.

The State could not satisfy that exception. The only evidence the State introduced at the suppression hearing was the recording of the knock and talk. The officer did not testify; no evidence from the police file was introduced to support a finding of probable cause. Instead, the State merely argued what the court would have heard if an officer had testified.

With nothing to support its case, the motion to suppress should have been granted. The Court therefore reversed the court of appeals and the district court.

While this is a good result and a helpful case, it seems unlikely to have much impact. The standard for coercion in knock and talks is very state friendly. To avoid it, the officer need only remember to couch his statements as his “feelings.” And even if he does not, the State still prevails if it can show that it had probable cause. While this is a correct and helpful case, its impact will probably mainly be seen on what officers are trained to say during knock and talks.

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