Officer’s statement defendant would not be arrested if he consented coerced consent

Officer telling defendant that if he turned over the gun he would not be charged with it amounted to coercion for consent when defendant ended up charged in federal court. United States v. Pantoja-Ramirez, 2007 U.S. Dist. LEXIS 92835 (D. Ida. December 17, 2007):

Still later, however, Officer Hemmert states that he is going to seize the shotgun, write a ticket for drug paraphernalia, “and then I’ll talk to the corporal and see what he wants to do about everything else.” See Transcript at p. 5. This is as close as Officer Hemmert gets to saying that he is not offering immunity for the shotgun and that the ultimate charging decision will be made elsewhere.

The bottom line is that Officer Hemmert’s attempt to procure the consent of Pantoja-Ramirez is confusing. Listening to the entire exchange, a reasonable person could conclude either that Officer Hemmert (1) offered immunity for the shotgun, or (2) offered only to defer charges now, and let someone else make the ultimate charging decision.

Such a “contradictory alternative message” has been held by this Circuit in the Miranda context to be “at best misleading and confusing, and, at worst, … a subtle temptation to the unsophisticated” defendant to waive a right. See United States v. Connell, 869 F.2d 1349, 1352 (9th Cir. 1989). The police cannot “appear to take away with one hand what they were offering with the other.” Id. at 1353 (quoting Emler v. Duckworth, 549 F.Supp. 379, 381 (N.D.Ind.1982)).

These principles apply with equal strength here. Officer Hemmert cannot appear to offer immunity, and then rely on other statements that contradict that offer. A reasonable person in Pantoja-Rameriz’s position could have concluded that Officer Hammert offered immunity for the shotgun. The Court must assume that Pantoja-Rameriez’s consent was based on that reasonable interpretation. When that promise was broken, the scope of the search exceeded the scope of the consent. Consequently, the Government has not carried its burden of showing that the search did not exceed the scope of the consent, and the motion to suppress must be granted.

Officer’s testimony that he smelled burnt marijuana when he stopped defendants and could read the label of a prescription bottle from outside the car was found just not credible. Nothing corroborated it at all. United States v. Shields, 2007 U.S. Dist. LEXIS 92929 (W.D. Tenn. December 18, 2007):

The Government asserts that probable cause to arrest the Defendants and, therefore, to search their persons, existed at the time Carter detected the marijuana smell coming out of the window and when he observed the prescription bottle bearing the name of another. However, the Court finds that Carter’s testimony with respect to the marijuana smell and the identification on the prescription bottle in Shields’ lap is not credible. It is uncontroverted that there was no objective evidence, such as rolling papers, roach clips or blunts, to indicate that Defendants had been smoking marijuana in the vehicle. Nor was there any evidence presented at the hearing to suggest that a small amount of marijuana in a sandwich bag hidden in a pants pocket, or a few small stems and seeds, would exude sufficient odor to cause the “quick gush” of the smell described by the officer to emanate from the two-inch crack in the window. See United States v. Mercadel, 75 F.App’x 983 at *5 (5th Cir. 2003) (failure of police to find any evidence of recently smoked marijuana supported court’s conclusion that officer’s testimony that he smelled marijuana was not credible).