The 4th Amendment protections against illegal search and seizure are among the greatest protections afforded to citizens. There are very strict criteria for search and seizure. An illegal search and seizure will result in illegally seized evidence being excluded. This potential is the greatest deterrent to abusive search and seizure practices of law enforcement.
In order for a search and seizure to be legal, absent extraordinary circumstances, there must be a valid search warrant. In the absence of a search warrant, there must be voluntary consent to the search.
The New Mexico Supreme Court case of State v. Davis addressed the issue of “voluntary consent” in the context of a rather large contingent of police–including a helicopter–that had surrounded the defendant‘s property. Though the defendant signed a form consenting to the search, the question remained whether the search was voluntary in light of the show of force and representations made by officers to the defendant.
In a nutshell, a show of force does not necessarily negate “voluntary consent.” As result, the Court found the search and seizure to be legal, thereby reversing the New Mexico Court of Appeals decision.
The Search in Question
This case began when the New Mexico State Police carried out operation “Yerba Buena 2006,” which was aimed at eradicating marijuana from a remote area of Taos County. The operation used helicopters to spot possible marijuana plantations from the air and to guide and provide cover for officers on the ground. One of the helicopters alerted officers to a greenhouse on the defendant‘s property. The officers surrounded the property, and the 72-year-old defendant got out of bed “to see what was going on.”
An officer asked the defendant to search the property. First, the defendant responded, “Sure, it looks like they are searching anyways.” When the officer provided the defendant with a consent form, the defendant responded, “I‘m not really thrilled about you searching my house,” then continued to say, “I don‘t know if I should do this; I don‘t know if it is in my best interest.”
When the defendant asked what would happen if he didn‘t sign, the officer said he‘d get a search warrant, which would take 30 minutes. In response, the defendant said, “Well I guess I don‘t really have any options here do I?” The officer didn‘t respond, and the defendant signed the consent form, which informed him that he had a constitutional right not to have his house searched without a search warrant, and that he had a right to refuse to consent to a search. The officers seized fourteen marijuana plants from the greenhouse, along with an undisclosed amount of marijuana and paraphernalia from the house.
The defendant filed a motion to suppress the marijuana and paraphernalia, arguing that his consent to the search wasn‘t voluntary. The trial court denied his motion, and the defendant appealed to the Court of Appeals. The Court of Appeals determined that the defendant‘s consent was “unequivocal,” but it also found that the State hadn‘t provided substantial evidence that the defendant‘s consent had been “voluntary.” The State appealed.
Burden on the State to Prove Voluntary Consent
The New Mexico Supreme Court first explained that voluntariness of consent is determined by weighing the evidence and deciding if it is “sufficient to clearly and convincingly establish that the consent was voluntary.” In other words, the trial court has to look at all the evidence, weigh it, and decide if the defendant voluntarily consented to a search. The Court emphasized that the State has the burden of proving that consent was voluntary.
The State argues that the Court of Appeals didn‘t merely weigh the evidence presented at trial, but rather “engaged in its own fact finding,” which isn‘t permissible under the “substantial evidence” standard of review. The defendant claims his consent wasn‘t voluntary because of the presence of armed officers and the helicopter. According to the defendant, he was “merely acquiescing to a showing of lawful authority,” which doesn‘t constitute valid consent.
The Court reasoned that the defendant did in fact give specific and unequivocal consent. Since the defendant gave oral consent and signed the consent form, his consent was specific and unequivocal. However, this issue wasn‘t in dispute. As such, the Court then moved on to look at whether the defendant had been coerced into giving consent.
Show of Force Does Not Necessarily Negate Voluntary Consent
The Court looked to a previous New Mexico case law, which says, “coercion involves police overreaching to a point that overcomes the will of the defendant.” This can include “the use of force, brandishing of weapons, threat of violence or arrest, lengthy and abusive questioning, deprivation of food or water and promises of leniency in exchange for consent.”
The sheer number of officers at a scene doesn‘t “automatically generate coercion.” At the same time, consent isn‘t voluntary if the defendant merely acquiesces to “a claim of lawful authority.” Specifically, “when 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.”
At the same time, however, State v. Shaulis-Powell says, “When an officer simply expresses his assessment of the situation, that explanation does not prevent a defendant from insisting that a warrant be obtained prior to searching.” In Shaulis-Powell, the court concluded that when an officer explains the possibility of arrest and obtaining a warrant, that doesn‘t constitute coercion and it doesn‘t invalidate consent. The Court reasoned that the facts of the current case were very similar to Shaulis-Powell, and as a result determined that the officer‘s statements to the defendant weren‘t coercive.
The Court went on to reason that the mere presence of armed officers wasn‘t enough to create coercion. The Court looked again to prior case law in which coercion was not created by the presence of armed officers who remained professional and kept their weapons holstered. The Court reasoned that the facts surrounding the defendant‘s consent were similar, and therefore the presence of armed officers alone didn‘t create coercion.
Consent Found Voluntary Under the Circumstances
The Court also compared the defendant‘s case to those when coercion was clearly present. Unlike those cases where a defendant was coerced, the defendant in this case was never detained and his property was never searched prior to his consent.
Further, the defendant was in the comfort of his own home and not isolated, alone, or unable to leave the premises. Although the helicopter might have added to a threatening environment in the defendant‘s case, the Court emphasized that no evidence existed that indicated the defendant consented because of the helicopter‘s presence.
As a result, the Court determined that there was substantial evidence that the defendant voluntarily consented to the search. As a result, it affirmed the trial court‘s dismissal of the defendant‘s motion to suppress the evidence.
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Warrant to Search Everyone on Premises Generally Invalid in New Mexico