D.Mont.: Coercive situation made def’s consent in own home involuntary

On the totality, defendant’s consent was not freely given. The situation was coercive and in his own home. United States v. Simpson, 2021 U.S. Dist. LEXIS 243401 (D.Mont. Dec. 21, 2021)*:

Here, a reasonable person would not necessarily believe that she was free to do as she pleased. As many as six agents of the state stood on Wilson’s porch. At least four officers entered the home. No weapons were alleged to have been brandished at her. The encounter occurred at a private residence, supporting a finding that Wilson was in custody. Officers implied that compliance would be compelled by stating they were there to search the home, rather than asking, and officers did not advise Wilson that she could terminate the encounter. However, no evidence was presented that Wilson believed she was in custody or was restrained. Taken as a whole, the analysis narrowly favors a finding that Wilson was not in custody when she was asked to consent.

Officers are not alleged to have drawn their weapons while asking Wilson for her consent. Miranda warnings were not supplied, but they were not required in such a circumstance because Wilson was not under arrest, so their absence weighs against neither party. Russell, 664 F.3d at 1281. Wilson was not informed that she could refuse consent and could withdraw her consent at any time, weighing against a finding of voluntariness. Finally, officers did not tell Wilson they would simply obtain a warrant if she did not consent, favoring the government’s position.

Taken in totality, the Court notes some mitigating circumstances but recognizes several factors that lean toward finding consent was not freely given. A fleet of officers descending on a private home is inherently coercive. Orhorhaghe v. INS, 38 F.3d 488, 494-95 (9th Cir. 1994). Officers apparently made no attempt to inform Wilson that she had the opportunity and right to refuse them entry. Officers physically blocked the doorway. There was conflicting testimony from witnesses about whether officers asked Wilson if they could enter or told her they would enter the home to check for the children. The government bears the burden of proving that the consent was, in fact, freely and voluntarily given. Johnson, 875 F.3d at 1276. The Court finds that the government has failed to meet that burden here. Therefore, because officers did not have consent, a warrant, or an exigent circumstance, the evidence discovered in the home must be suppressed.