CA7: Threat to get SW is not coercion if there is probable cause

Defendant was removed because he was arrested, not to prevent him from being asked for consent under Randolph, although his protestations may suggest that he would have refused consent. Instead, the officers asked his girlfriend, and she resisted. Then they said that they would get a search warrant but it would take a while because it was Christmas Eve. The District Court erred in not analyzing whether there was probable cause to get a search warrant. If there was probable cause, then it was not a lie. United States v. Hicks, 539 F.3d 566 (7th Cir. 2008):

The district court did not err in its fact finding per se, but rather took an incorrect view of the law. The district court interpreted our case law to mean that if Brown’s statement reflected a legitimate belief, then the stated intention to get a warrant did not create a problem with the consent. We do not question the district court’s determination that Brown personally believed what he said. But we find that it was error to evaluate whether the stated intention to get a warrant was genuine or pretextual without considering whether the police actually had the underlying probable cause for the search.

Consider: If the police did not have a reasonable basis to believe there was probable cause then it follows that any statement, or “threat,” that a search warrant could be obtained would necessarily be “baseless” and could only be “merely a pretext to induce submission.” In that case, the consent may be involuntary. See White, 979 F.2d at 542. Without determining whether there was probable cause (or a reasonable factual basis to believe there was probable cause), the court cannot know whether the statement was baseless or not. For instance, if instead of sending Detective Brown, Detective Armon himself had gone to the flat and made the same remark, whether or not his statement that he could get a warrant was “genuine” would have to turn on whether he had a reasonable basis for believing there was probable cause. He could not just refer to some other officer’s representations to him to establish “genuineness.”

In this case, the testimony established that Armon specifically instructed Brown to go to the 944B flat and get consent to search. Brown also said that Armon told him there was enough to get a warrant, but Brown admitted he had no knowledge of any of the facts that would establish probable cause. If Brown’s mere “belief” in this case were enough to establish a genuine statement of intent to obtain a warrant (a “nonbaseless” threat, if you will), there is nothing to stop one officer from telling another officer that there is enough to get a warrant when there really isn’t, just to get consent. In other words, since an officer on the scene cannot lie to the occupant that he’s going to go get a warrant when he knows there isn’t probable cause, then that same lie cannot be permitted simply because the police compart-mentalize who knows what. The way to thwart this potential cat’s-paw-like circumvention of the rule is to determine whether there was a reasonable factual basis on which to conclude there was probable cause. This is consistent with our previous case law. See White, 979 F.2d at 542 & n.1 (finding no evidence that police intended to coerce with an empty threat and noting that the police obtained a search warrant for another search of the residence the following day); Duran, 957 F.2d at 502 (finding the threat to obtain a warrant did not vitiate consent because it was “firmly grounded” and the police had probable cause); United States v. Talkington, 843 F.2d 1041, 1049 (7th Cir. 1988) (finding consent invalid where police lied in claiming that they were in the process of applying for a search warrant).

We are not suggesting one way or the other as to what the officers were truly doing in this case; we are just saying it was error for the district court not to examine whether there was a factual basis for the police to believe they had probable cause to get the search warrant. If there was, then there was a genuine intention to get a warrant and the statement did not vitiate consent. On the other hand, if, on remand, the district court determines the police had no reasonable factual basis to believe they had probable cause then there was necessarily a baseless/pretextual threat that may render Smith’s consent involuntary. As it stands, the district court failed to make a determination (and the prosecution did not present the relevant evidence) on this issue, thus we must remand.