CA7: Existence of PC made threat to get a SW not an “empty threat”

The threat to get a search warrant if defendant did not consent was not an “empty threat” because the officers had probable cause. Therefore, it was not unlawful coercion. United States v. Jones, 614 F.3d 423 (7th Cir. 2010):

In addition, Jones argues that Joseph was coerced into consenting based on Arnold’s “empty threat” that a search warrant would eventually be obtained. Jones is correct in asserting that baseless threats to obtain a search warrant may indeed render a consent to search involuntary. United States v. Hicks, 539 F.3d 566, 571 (7th Cir. 2008); United States v. White, 979 F.2d 539, 542 (7th Cir. 1992). The appropriate focus, then, is on whether the police had a genuine intention to seek such a warrant, and more specifically, whether they had a reasonable factual basis to believe they had probable cause to obtain a warrant. Hicks, 539 F.3d at 572. [¶] The officers in this case had a reasonable factual basis to believe that there was sufficient probable cause to obtain a warrant.

Although defendant was in custody, he consented to letting a police officer search his cell phone for child pornography. His “low mental functioning” defense to consent is rejected because his actions showed he knew what he was doing when he was trying to hide the cell phone and his responses to questions about what was on the phone. The erect penis in the photograph, in context of other pictures on the phone, was probable cause to believe it was of a minor, although it could not be discerned with certainty. United States v. McGlothlin, 391 Fed. Appx. 542 (7th Cir. 2010)* (Anders brief, but the issue is fully discussed.)