D.Me.: Officers “bungled … consent-to-search form” but consent still valid

Defendant’s consent was valid because officers had PC for a search warrant, despite “the bungled manner in which St. Laurent secured the Defendant’s [consent and] signature on the consent-to-search form.” United States v. Hinkley, 2014 U.S. Dist. LEXIS 3210 (D. Me. January 10, 2014):

Nonetheless, the bungled manner in which St. Laurent secured the Defendant’s signature on the consent-to-search form—failing to identify the form for what it was, reading its contents in a confusing, disjointed way, failing to allow the Defendant time to read the form himself, directing the Defendant to sign the form when he hesitated—renders it nearly worthless as evidence of the ultimate question of voluntary consent. A close review of the video, however, shows that St. Laurent straightforwardly asked, “So you’re giving us consent to search your apartment?” The Defendant responded, “Yes, sir.” This moment demonstrates the Defendant’s consent.

This does not end the inquiry, however, as consent is vitiated if it is given in mere acquiescence to a claim of lawful authority. Here, before even asking the Defendant for consent, St. Laurent stated unequivocally and repeatedly that a search would take place: at around the 6:30 mark (“obviously we’re gonna search … your house after this”), around the 22:00 mark (“I’m gonna go through your house, I’m gonna find all this stuff”), and around the 30:00 mark (“the [sex] toy that you have … [is] gonna be my key, … we’re gonna get … DNA off that”). While St. Laurent never explicitly told the Defendant he would get a warrant if he needed to, the message was clear: the police were going to search the Defendant’s apartment with or without his consent. Based on these facts, the Court infers that the Defendant’s grant of consent was predicated on St. Laurent’s unequivocal assertions that a search was going to take place.

This is not fatal to the Government’s argument. Under the First Circuit’s recent decision in Vázquez, the Defendant’s consent may yet be valid if St. Laurent’s statements implying that police would search the Defendant’s apartment whether he consented or not were “based on a reasonable assessment of the facts.” Vázquez, 724 F.3d 15. Here, St. Laurent’s assertions were almost certainly correct. Had the Defendant refused consent, the police would have applied for and received a warrant because they already had probable cause to search the Defendant’s apartment. The Defendant’s “[b]owing to events” is not the same as coercion. Robbins, 364 F.2d at 49-50.

Accordingly, the Defendant’s consent is not vitiated by St. Laurent’s statements suggesting that the police would obtain a warrant to search the Defendant’s apartment even if he refused his consent. Given that the Defendant was psychologically capable of granting consent, in fact granted such consent, and was not coerced or tricked into doing so, his consent was both voluntary and valid.