Consent was the product of interrogation and coerced where defendant started off telling officers she did not want to consent

Consent to search of defendant’s home was the product of coercion on the totality of the circumstances after 90 minutes of interrogation. State v. Munson, 339 Mont. 68, 2007 MT 222, 169 P.3d 364 (2007):

[*P55] Having considered the foregoing arguments and the record before us, we conclude that the totality of the circumstances weighs in Munson’s favor. Although there unquestionably are circumstances supporting both sides of the consent issue, we consider the following facts to be most significant.

[*P56] First, Munson indicated to the Officers upon their arrival that she did not want to visit with them at that time, but they insisted on visiting with her “right now,” thereby creating a coercive dynamic at the outset of the interview. Second, Munson unequivocally refused twice at the outset of the questioning to consent to a search of her apartment, but the Officers nevertheless pressured her to change her mind, thereby conveying that they would not take “No” for an answer. In this regard, we are not persuaded by the emphasis the State places on the Officers’ altruistic motive in going to Munson’s apartment “to help [her] get out of the pattern of drug use”–a characterization that is dubious in light of Basnaw’s statement, upon the Officers’ arrival, that he and Johnson were there to “follow up” on allegations of criminal activity involving Munson and her apartment. Indeed, the State’s portrayal of the events is belied by Basnaw’s own characterization (while requesting transportation of Munson) of what had just transpired:

Hi Hillary it’s Jase. Good. Hey that female I talked to ya’ about I’m at her house now. We did a consent to search and I’m gonna’ end up takin’ her to jail. Yeah. We got a little bit o’ meth and meth paraphernalia. She’s got a 1-year-old and a 5-year-old. So how do ya’ like that? Hahaha. Made to order.

[*P57] Third, the Officers employed what could fairly be characterized as psychological tactics to obtain Munson’s consent. Cf. Schneckloth, 412 U.S. at 229, 93 S. Ct. at 2049 (“In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.”). For instance, Johnson told Munson that “[t]here’s some pretty bad stuff goin’ on here,” opined that she was at “a fork in the road,” offered ideas on how she might change her life, and then suggested that signing the consent form would be the wise choice for her to make, noting that “[t]he decision you make today is gonna’ determine where your children are raised.” As a result, Munson’s consent ultimately was given while she was in an extremely emotional state brought on by the Officers’ lecturing her at length about her lifestyle, her children, and her future. For this reason, we cannot agree with the State that “[t]his is not a case in which the police wore down a suspect.” To the contrary, our review of the thirty-one-page transcript covering the approximately one hour and forty-five minutes that the Officers were at Munson’s apartment leads inescapably to the conclusion that Basnaw and Johnson’s approach achieved exactly what they had intended: to wear Munson down to the point where she made inculpatory statements and yielded to their warrantless search of her home.

[*P58] Lastly, although the Officers did indeed tell Munson that she did not have to sign the Consent to Search form, they also told her that she did have to sign the form. As a matter of fact, the transcript reflects virtually simultaneous contradictory statements by the Officers in this regard; at the very least, their statements to Munson that she did not have to sign the form were equivocal.

[*P59] Based on the totality of the circumstances, we conclude that Munson’s consent was not given freely and voluntarily and without duress or coercion. Thus, all evidence seized by the Officers under the guise of Munson’s consent is inadmissible. We accordingly reverse the District Court’s order denying Munson’s motion to suppress that evidence.