D.N.D.: Consent to search motel room was coerced; officer’s audio of conversation supported defendants’ version

Officers came to defendant’s hotel room at night and pounded on the door for entry. After 30 seconds of repeated requests, defendant said his wife was naked, and they told her to hurry and get dressed so they could come in. After they entered, the officers misrepresented their purpose to look around. They had an audio of the interchange. The search was not by valid consent and was coerced, and the motion to suppress was granted. United States v. Quintero, 2010 U.S. Dist. LEXIS 98834 (D. N.D. September 8, 2010)*:

The Court is mindful that nighttime searches are not per se unconstitutional. United States v. Harris, 324 F.3d 602, 606 (8th Cir. 2003); United States v. Berry, 113 F.3d 121, 123 (8th Cir. 1997). However, search warrants command the officer to execute a warrant during the daytime, unless the judge for good cause expressly authorizes otherwise. Fed. R. Crim. P. 41(e). Daytime is defined as the hours from 6 a.m. to 10 p.m. Id. Here, the officers rousted two people out of bed at night, without probable cause or a showing of good cause as to why they could not have acted earlier in the day. They then pressured and interrogated the Quinteros to consent to a search at a time of the night that would not be permitted if the officers had obtained a warrant. Indeed, it is a rare case in which law enforcement officers ought to be given more latitude to act when they do not have probable cause or exigent circumstances than the law allows when they do have probable cause or exigent circumstances exist. Also, particularly troubling is the lack of any explanation as to why the officers waited for over five hours before they began their investigation at the hotel.

Moreover, it is clear the officers’ conduct intimidated Michelle. Six people were standing outside the door. Before the entry, Agent Weber pressured Michelle; he commanded her to get dressed, he directed her to hurry up, and then he told her after she got dressed they were going to come into the room to talk to her. Michelle told Agent Weber on three separate occasions that the officers were scaring her. Yet, Agent Weber continued on with the same force and pressure.

Once inside the room, Agent Weber purposefully misrepresented his intentions with regard to the search. He asked Michelle if the officers could “look around” or take “a quick peek around”, knowing he intended to do more than just look around. Agent Weber testified he intended to thoroughly search the room along with the Quinteros’ belongings. He also knew the only way he could search the room was to convince Michelle to consent.

It took several minutes of pressure by law enforcement officers to get Michelle to give the officers permission to look around. The recording makes clear that Michelle’s responses were ambivalent and made with hesitation and reservation. Michelle was clearly nervous and scared and under pressure. The audio recording also makes clear that the officers did not give Michelle a choice to consent to a search. Consent obtained by duress or coercion is not voluntary consent. Lakoskey, 462 F.3d at 973.

After considering and weighing all of the evidence, particularly the unexplained delay in arriving at the hotel, the time of night of the encounter, the number of officers involved, the pressure the officers put on Michelle, the coercive environment created by the officers, and the expressions of fear by Michelle, the Court finds the United States has not proven by a preponderance of the evidence that Michelle voluntarily consented to a search of the hotel room.

Remember this post from December on police body cams?