CA5: Cadre of police and helicopter circling overhead not sufficiently “provocative” to make consent involuntary

Defendant’s consent was valid, and a bunch of police officers surrounding the house and a helicopter circling over head were not “provocative” enough to make consent invalid. [And what’s the purpose of the helicopter other than to intimidate? It sure doesn’t help the police on the ground when the house is that well covered.] United States v. Menchaca-Lopez, 2015 U.S. App. LEXIS 18790 (5th Cir. Oct. 26, 2015):

Menchaca-Lopez asserts that his consent to search his residence was involuntarily coerced by two factors. First, he argues that the show of authority by law enforcement officers, which included a cadre of armed state and federal agents outside his property and a United States Border Patrol helicopter orbiting above, made him believe that a search of his residence would occur whether or not he consented to one. Second, he contends that one of the police officers furthered that belief by informing him that agents would either obtain a search warrant for his residence or conduct a warrantless search of his residence if he did not consent.

Reviewing the record under the governing precedents, we conclude that the district court did not clearly err in resolving those factual inquiries against Menchaca-Lopez. First, beyond the law enforcement agents’ mere armed presence, Menchaca-Lopez does not point to any specific provocative behavior on their part—nor was any identified through the testimony of the agents themselves—that would have caused him reasonably to believe that a search of his residence would occur even if he denied consent. See United States v. Martinez, 410 F. App’x 759, 764 (5th Cir. 2011) (holding that “the mere presence of armed officers does not render a situation coercive”).

Second, the district court heard conflicting testimony as to whether police officers threatened Menchaca-Lopez that they would search his residence, with or without a warrant, if he did not give consent and ultimately credited the officers’ testimony that no such threat was made. Giving utmost deference to the district court’s determinations of witness credibility, see United States v. Solis, 299 F.3d 420, 439 (5th Cir. 2002), we conclude that the district court’s finding that Menchaca-Lopez’s consent was not coerced by police threats is “plausible in light of the record as a whole.” United States v. Gomez, 623 F.3d 265, 268 (5th Cir. 2010) (internal quotation marks and citation omitted).