E.D.Tenn.: Coerced consent for a sex offender “walk through” of house was invalid

Defendant registered as a sex offender under Tennessee law. The registry person in his county told him that he had to submit to “house checks,” random walk throughs of his house by the registry person and the police. He had been subjected to a few and then, after a dispute with a neighbor, they came by again. He admitted having a gun. The threatened entry was the product of coerced consent obtained by a false claim of authority. United States v. Arwood, 2010 U.S. Dist. LEXIS 50258 (E.D. Tenn. April 27, 2010):

Defendant argues that he believed that he had no choice other than to submit to the “house checks,” and that he also was obligated to answer any questions asked by the police during those checks. The United States argues that “ignorance of the law is not a defense,” citing United States v. International Minerals & Chemical Corp., 402 U.S. 558, 563, 91 S. Ct. 1697, 29 L. Ed. 2d 178 (1971), and therefore defendant’s erroneous belief that he was required to answer Deputy Standifer’s questions is irrelevant.

There was nothing inappropriate about Deputy Standifer’s question to defendant regarding a gun in the house. The issue, however, is the validity–or voluntariness, if you will–of his response that there was indeed a gun in the house, as well as the validity of his consent that the officers enter his house.

Defendant was “ignorant” of the law, i.e., his rights, to the extent that he was under the misapprehension that he had no choice. That misapprehension, however, was the product of prior visits and statements by representatives of the Hamblen County Sheriffs Department.

A consent is not voluntary if it is given in response to a false threat that a search warrant will be obtained if the consent is withheld. See, e.g., United States v. White, 979 F.2d 539, 542 (7th Cir. 1992). Similarly, a consent based upon an officer’s false representation that he possesses a warrant is no consent at all:

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.

Bumper v. North Carolina, 391 U.S. 543, 548-550, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968). There is no difference between an officer’s misrepresentation regarding his intent to procure a warrant and his misrepresentation (by word or action) of his authority to conduct warrantless house checks and to require a convicted sex offender to answer his questions. In either situation the defendant’s consent cannot truly be said to be valid and voluntary.

Defendant did not have a reasonable expectation of privacy in a gun safe where his guns were stored. The safe was in another person’s premises, and he had no control over it at all. Ubele v. United States, 2008 U.S. Dist. LEXIS 113966 (S.D. Ga. January 5, 2009).*