RI: Looking back up stairs in response to demand from a tactical team to produce defendant was not voluntary consent

Considering the value in the law of privacy of the home, the court concludes defendant’s mother did not consent to entry into and search of the house for him. Three to six officers came to the door, one carrying a tactical shield, demanding production of the defendant, and she merely looked up the stairs. On this record, that’s not voluntary consent; it’s mere acquiescence. State v. Gonzalez, 2016 R.I. LEXIS 43 (March 29, 2016):

We are well aware that consent to search can be conveyed nonverbally. See, e.g., United States v. Walls, 225 F.3d 858, 862-63 (7th Cir. 2000) (determining that there was implied consent when an individual opened the door and then stepped back to allow the police to enter); United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999) (holding that there was consent to search when, in response to a request by police to open a bag, the defendant removed the key from his pocket and handed it to the police). However, implied consent must still meet the requirement of being free and voluntary. We have stated that, in making that determination, some of the factors that other courts have considered, and which are appropriately weighed in a review of the totality of the circumstances, include “the number of officers entering the home,” “the apprehension of a family member,” “the time of day,” and a “display of weaponry.” Beaumier, 480 A.2d at 1374; see 68 Am. Jur. 2d Searches and Seizures § 151 at 293 (2010) (“a display of weapons in the course of an arrest may be a significant indicator of a coerced consent”).

It is very important to note that, in the instant case, it was not simply a single uniformed policeman who knocked on Ms. Gonzalez’s door—it was a group of at least three, possibly six, officers. The first officer was carrying a tactical shield held in front of him, and the officers directly behind him were standing at the door to Ms. Gonzalez’s apartment with their guns “displayed.” While those facts alone are not determinative, Officer Dosreis himself candidly acknowledged that the conversation between Ms. Gonzalez and him was hurried, and Det. Grant testified with similar candor that only ten or fifteen seconds elapsed between the door being opened by Ms. Gonzalez and the officers entering the apartment. Additionally, the officers were at the apartment at around seven o’clock on a Sunday morning, demanding the location of Ms. Gonzalez’s son, whom they subsequently arrested. In our judgment, these are hardly circumstances conducive to a voluntary consent.