M.D.Fla.: “We can do this the ‘easy way or hard way’” doesn’t make otherwise voluntary consent invalid

“We can do this the ‘easy way or hard way’” doesn’t make otherwise voluntary consent invalid. United States v. Jackson, 2016 U.S. Dist. LEXIS 175964 (M.D.Fla. Nov. 16, 2016), adopted, 2016 U.S. Dist. LEXIS 175505 (M.D. Fla., Dec. 20, 2016):

As Jackson concedes, if the Court credits Sergeant Ferricane’s testimony over Thompson’s, “the matter is settled.” Doc. 41 at 2. Based on the proposed findings of fact, including the finding crediting Sergeant Ferricane’s testimony over Thompson’s testimony on Jackson’s reaction to the consent request, denial of the motion to suppress is warranted. They show Jackson’s consent was given without resort to threats or any other types of coercion. Any later explanation concerning the “easy way or hard way” in response to Thompson’s and Wright’s questioning would not vitiate the voluntariness of that consent because he had expressed no intent to withdraw it.

To avoid unnecessary briefing and decision making, I recommend declining to alternatively hold, as the United States requests, that denial of the motion to suppress is warranted if the Court credits Thompson’s testimony over Sergeant Ferricane’s. Even if it can be found from her testimony that Sergeant Ferricane made an “easy way or hard way” statement before Jackson’s consent to obtain his consent, the parties have provided insufficient briefing to make the alternative holding. The United States cites and Jackson distinguishes unpublished district and appellate court cases from other circuits for the general proposition that the “easy way or hard way” tactic is not per se coercive but do not comprehensively analyze whether the tactic is per se coercive if the “hard way” involves an officer’s statement he will obtain a warrant or call a drug dog when he has no apparent ability or intention to do so.