The officer seriously downplayed the seriousness of defendant’s being a felon in possession of a firearm to the point the USMJ concluded that the consent was mere acquiesce to a claim of authority to search, and the USDJ adopts it. Defendant was told he wouldn’t be arrested, and his having a gun was “not a real big deal,” and there would be virtually no consequences if he turned the gun over. It was a real big deal because it’s a 10 year felony under federal law and a 4 year felony under state law. United States v. Hattaway, 2014 U.S. Dist. LEXIS 5040 (D. S.D. January 10, 2014), R&R 2013 U.S. Dist. LEXIS 183689 (D.S.D. July 18, 2013). Consider this:
Critical to the analysis is the government’s admission Deputy Haugen told Mr. Hattaway “that he [Deputy Haugen] had to collect the gun for safekeeping. … [and] this was part of his ‘job’ and something he (Deputy Haugen) had to do.” Id. at pp. 4-5 (emphasis added). These statements come on the heels of Deputy Haugen’s soft-sell declaration that he was investigating Mr. Hattaway’s possession of a firearm but “it’s not a real big deal, I think it’s something we can figure out. … so that’s what I’m here to check out. Find what’s goin’ on with that.” (Docket 37 at p. 5). The deputy acknowledged he lied “to make things ‘go smoother.'” Id. at p. 6. While they discussed general policies of a felon possessing a firearm, Deputy Haugen declared “But my job is clear. That’s what I gotta do. And what I’d appreciate [is], if you’d just work with me and trust me, I can give you … a fancy receipt ….” Id. at p. 7. None of these statements of authority are true.
First, possession of a firearm by a felon is a “big deal.” Under federal law, unlawful possession of a firearm by a felon is a felony and exposes the individual to a maximum period of incarceration of up to 10 years and a fine of up to $250,000, or both. 18 U.S.C. §§ 922(g)(1) & 924(a)(2). Under South Dakota law, possession of a firearm by a felon who has been convicted of a violent crime is a felony and subjects the individual to a maximum period of incarceration of up to two years and a fine of up to $4000, or both. SDCL §§ 22-14-15 & 22-6-1(9). To suggest an investigation of a felon in unlawful possession of a firearm is “no big deal” implies to anyone in Mr. Hattaway’s position that there will be no consequences if he cooperates and turns over a firearm.
Second, a law enforcement officer does not have the authority to simply enter a private residence and take possession of a firearm without either consent or a search warrant. Deputy Haugen could conduct a residential search with either consent or a search warrant, but not simply because he perceives these activities to be a mandatory part of his job.
Third, invoking the phrase “work with me and trust me,” after describing his law enforcement functions as mandatory, implied Mr. Hattaway was obliged to let the officer perform his official duties. Again, this statement reinforces the it’s “no big deal” statement analyzed above.
Fourth, coupling this mandatory law enforcement duty with the further declaration that Mr. Hattaway works with the police and is an emergency medical technician first responder suggests to Mr. Hattaway he certainly does not want to interfere with Deputy Haugen’s official duties by saying “no” to a search of his home or by making the officer go to the extra work of getting a search warrant. Under the circumstances of this case, Mr. Hattaway was entitled to know both of these options. To achieve voluntary consent to search, Deputy Haugen was obligated to disclose these options before Mr. Hattaway was asked to cooperate. United States v. Mendenhall, 446 U.S. 544, 558-59 (1980) (“Although the Constitution does not require proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search … such knowledge was highly relevant to the determination that there had been consent.”) (internal citation and quotation marks omitted).
Rather than make these disclosures, Deputy Haugen testified, “I talked to our state’s attorney about this … [and] I told him that [Mr. Hattaway would feel compelled to cooperate because of his service and position in the community].” (Docket 37 at p. 8). Knowing Mr. Hattaway was conflicted because of his public service, Deputy Haugen reinforced his earlier misstatements by thanking Mr. Hattaway for allowing the officer to perform his law enforcement duties. At that point Mr. Hattaway said, “I’ll just shoot straight with ya. I’ve got multiple firearms.” Id. Deputy Haugen responded, emphasizing his earlier misstatements. “Well I really appreciate you doin’ the easy straight-up thing. ‘Cause that’s what I told our state’s attorney. You’re a first responder, you’re gonna work with me. You’re not gonna turn this into something it doesn’t need to be.” Id. Officer Ehlert reinforced this duty to cooperate by stating “Brandon, you’re a straight-up guy and I can vouch for ya.” Id.
After these statements, Mr. Hattaway retrieved a .22 rifle and a 12-gauge shotgun hidden from sight on top of a kitchen cabinet and handed them over to Deputy Haugen. Id. at pp. 8-9. After the firearms were handed to him, Deputy Haugen asked, “Is that all ya got?” Id. at p. 9. Mr. Hattaway inquired, “I’m not going to jail, right?” Id. In response “Deputy Haugen assured him, ‘I’m not here to arrest ya. Let me tell ya how this shakes out. I make a report. The state’s attorney reviews it, and ….” Id.
At that point Mr. Hattaway cut in saying “No. ‘Cause, I mean … let’s stop for a second. ‘Cause I’m lookin’ at five years, I mean its federal. Possession of a firearm, if it’s on me. It’s not.” Id. Deputy Haugen confronted him, “So you said you had multiple, how many others are there?” Id. When Mr. Hattaway did not respond, Officer Ehlert stated “Brandon, I know you’ve got a handgun ’cause I saw a casing out on the deck. Where’s the handgun at?” Id. Mrs. Hattaway immediately stated “It’s mine.” (Exhibit 1 at approximately 10 minutes 25 seconds).
Again, neither law enforcement officer advised Mr. Hattaway he could either consent to a search and show them where the handgun was or, based upon the probable cause they possessed given the two firearms and handgun casings on the deck, they would seek a search warrant to conduct a thorough search of the Hattaway residence. Instead, Mr. and Mrs. Hattaway acquiesced in the performance of the officers’ “official duties,” went to the master bedroom and produced an AR-15 rifle, ammunition and a semi-automatic pistol, together with a box with a combination key-pad lock and a gun case. (Docket 37 at p. 10).
The report and recommendation concluded “Deputy Haugen’s false statement of his legal authority-that he had proof that Mr. Hattaway had a gun and that Haugen was required right then and there to collect Mr. Hattaway’s guns whether Mr. Hattaway agreed or not-coerced Mr. Hattaway into turning over his firearms to Deputy Haugen. … the effect of the misrepresentation was to induce the suspect to believe that the police already had probable cause to conduct the search, that the search was inevitable, and that the defendant’s consent was really beside the point.” Id. at p. 28).
