S.D.N.Y.: Consent invalid under threat to get SW where one wouldn’t issue

Defendant’s consent was vitiated by the threat to get a search warrant where it was clear that, under New York law, one would not have issued. United States v. Munoz, 2013 U.S. Dist. LEXIS 177576 (S.D. N.Y. December 18, 2013):

It is unnecessary to resolve this dispute over the precise language used, as Officer Fidanza at least clearly implied that the police could and would obtain a search warrant if Alipio did not consent to the search. But that statement or clear implication, whichever it was, was highly misleading. As Sergeant Pasquale acknowledged at the hearing, he was aware that the police could not have obtained a warrant based on the information they had at the time. The government argues that Officer Fidanza did not discuss whether the police could or would get a search warrant with Sergeant Pasquale but it has presented no evidence to suggest that she actually believed that a warrant could have been obtained. Indeed, it strains credulity to think that she would have had any basis for believing there were grounds for a court to issue a search warrant in the circumstances. She either did not know what information the police were relying on, in which case it would have been improper and illogical for her to assume that it was possible to obtain a search warrant, or she did know, in which case she would have known also that the police had insufficient evidence to apply successfully for a search warrant under New York law.