D.Colo.: Threat to have CPS take child made consent involuntary

The officers told defendant that if she didn’t consent she’d be arrested, and CPS was on standby to take custody of her child, aside from the fact there were seven officers there. The consent was coerced. United States v. Thorson, 2015 U.S. Dist. LEXIS 107696 (D.Colo. June 12, 2015), reconsideration denied 2015 U.S. Dist. LEXIS 106027 (D. Colo. Aug. 12, 2015):

Officer Krieger, who was at Beardsley’s house, radioed Officer Edwards and asked if the officers “planned on arresting both the driver and passenger of this vehicle, because there was, indeed, an eight-month-old child at the residence, who the people … at the house were claiming was the driver’s child.” (Doc. # 64 at 104.) Edwards testified that if officers arrested both Thorson and Garrett, “there would be obviously nobody to take custody of the child, so they … would have to call Child Protective Services to deal with the child.” (Id.) Officer Edwards said that he told Krieger that, at that point, the officers did not know if they were going to arrest Garrett for not having a valid driver’s license, but that they would impound the vehicle. (Id. at 105.) Edwards claimed he “distanced himself from [Garrett and Thorson s]o they were somewhat out of earshot of [his] radio.” (Id. at 104.) However, Garrett testified that she could hear the radio conversation and that when Krieger asked if she or Thorson would be released to pick up their baby, Officer Edwards responded, “We’re not quite sure right now, but we think they might be cooperating, so why don’t you just give us a few minutes, then we will get back to you.” (Doc. # 68 at 130, 160.)

Edwards said that when he finished that conversation, he returned to Garrett, [*24] where Officer McCants asked again for consent to search the Audi. (Doc. # 64 at 106, 184.) Edwards testified that he told her “we have your eight-month-old child at the house. Child Protective Services [is] prepared to take custody of the child if both you and Mr. Thorson [are] arrested. … [T]he best way to do this is let’s speed this up, let’s get this over with, so if we don’t have to arrest you we can write you a summons, we can release you, and you can go take custody of your child.” (Id. at 106.) He, then, asked again, “[C]an you give us verbal consent to search the vehicle?” (Id.) At that point, Garrett consented to the search. (Id. at 106-07.)

Garrett testified that she changed her mind “only by persuasion” because she believed that, if she did not, she would lose her baby. (Doc. # 68 at 131.) Garrett testified that officers told her that Social Services would take custody of her baby if she did not cooperate. (Id. at 128.) An officer told her, “[I]f you continue to tell us no, we are going to get a warrant and keep you here all day long until we do, and you are definitely going to lose your child at that point and so you might want to think about that, Ms. Garrett.” (Id. at 160.) The Court finds Garrett’s testimony credible.

The Court finds very troublesome the officers’ use of coercion to gain Garrett’s consent after she unequivocally invoked her Fourth Amendment right to refuse to consent to the search of the Audi. First, there was coercion with respect to officers’ statements that the Audi “would probably be impounded” and that all of its contents would be inventoried (Doc. # 64 at 103), which implies that Garrett’s choice of whether to consent was hollow. Similarly, the officer’s statement that, if she did not consent, she would have to wait while they obtained a search warrant undercuts any advisement that she had a right to refuse the search. See Eidson v. Owens, 515 F.3d 1139, 1146 (10th Cir. 2008) (“A suspect’s consent to search may be tainted by a threat of detention that essentially amounts to an arrest if consent is refused.”); United States v. Maez, 872 F.2d 1444, 1456 (10th Cir. 1989) (an officer’s statement to a suspect that, if she did not consent to a search she would have to wait while officers obtained a warrant, “undermine[d]” the officer’s advice that she could refuse consent).

Second, it is apparent from both Officer Edwards’s and Garrett’s testimony that he used Garrett’s baby to gain leverage in securing her consent. Even crediting Edwards’s version of the events, the effect of his statements to Garrett and Krieger (which Garrett overheard) was that, if Garrett consented, she would be let go and reunited with her child. Even so, having observed her at the hearing, the Court found Garrett forthcoming and believable, and, therefore, more credible than Edwards. Consequently, the Court finds that Edwards made explicit promises and threats to secure Garrett’s consent. Moreover, it is apparent from Garrett’s testimony that she felt coerced. See Harrison, 639 F.3d at 1279-80 (“an individual’s subjective state is … one factor in the analysis”). Because of this, the government has not met its burden in demonstrating that her consent was free from coercion. See id.