NM: Officer’s statement seeking consent he’d never been turned down for a SW was coercive

The officer’s statement seeking consent that he’d sought and obtained 222 search warrants and never been turned down for one was coercive. Thus, there had to be a showing of probable cause to the defendant and probable cause here was lacking. State v. Lovato, 2020 N.M. LEXIS 43 (Dec. 3, 2020):

We conclude that the statements in this case are distinguishable from those made in Shaulis-Powell. We find it impossible to characterize Gallegos’ statement that he had obtained over 222 search warrants and had never once been denied as a mere assessment of the situation. Rather, such a statement amounts to an unequivocal assertion that a search warrant is forthcoming. In addition, Gallegos made this statement in the midst of presenting Defendant with “two options”—Defendant could consent to the search or Gallegos would get a search warrant and Defendant would be kicked out of the residence pending the arrival of the warrant. This communicated that a search of Defendant’s property was inevitable. See United States v. Kaplan, 895 F.2d 618, 622 (9th Cir. 1990) (“Courts have drawn distinctions where, on one hand, an officer merely says that he will attempt to obtain a search warrant or whether, on the other hand, he says he can obtain the search warrant, as if it were a foregone conclusion.”). Indeed, Defendant testified that he “didn’t know what to do,” and felt that, in effect, he had no other option but to consent. As we have stated, “[w]hen an officer unequivocally asserts that he will be able to obtain a warrant, a defendant’s belief that refusal to consent would be futile demonstrates involuntary consent.” Davis, 2013-NMSC-028, ¶ 23. The only possible exception to this rule is where the officer in fact possessed probable cause to search or, in other words, where an assertion of lawful authority was justified. See Shaulis-Powell, 1999-NMCA-090, ¶ 12. Thus, we turn to that issue.

Whether there was probable cause to obtain a search warrant

P22 Where an officer’s statements amount to an unequivocal assertion that a search warrant will be obtained, such an assertion does not vitiate subsequent consent provided there is probable cause to support a warrant. Shaulis-Powell, 1999-NMCA-090, ¶ 12 (relying on United States v. Evans, 27 F.3d 1219, 1231 (7th Cir. 1994) and Kaplan, 895 F.2d at 622). Notably, it is not enough that the threat to obtain a search warrant is made in good faith; “there must in fact be probable cause.” 4 Wayne R. LaFave, Search and Seizure § 8.2(c), at 99 (6th ed. 2020). Moreover, where an officer threatens to seize or detain property while obtaining a warrant, as here, where Gallegos told Defendant that he would be ejected from his property pending the issuance of a warrant, such a threat must also be supported by a demonstration of probable cause. See, e.g., id. at 100 (noting that police may not misrepresent “the scope or extent of the authority they would have under such a search warrant or preliminary to its issuance”) (emphasis added) (footnote omitted). We review the factual findings undergirding the district court’s determination on the issue of probable cause for substantial evidence. State v. Martinez, 2020-NMSC-005, ¶ 15, 457 P.3d 254.

P23 In Shaulis-Powell, the Court of Appeals reached the question of probable cause, despite the Court’s conclusion that the character of the officer’s statements did not mandate such an inquiry. 1999-NMCA-090, ¶¶ 12-13. It concluded that “[a]lthough the existence of probable cause is a close question in this case, we think it likely that a magistrate would have issued a warrant.” Id. ¶ 13. Evidence supporting probable cause included a tip from a citizen informant that police corroborated “by visiting the location and observing, in the precise location described, plants that appeared to be marijuana based on the officers’ experience.” Id. In Evans and Kaplan, both of which were relied upon by the Court of Appeals in Shaulis-Powell, 1999-NMCA-090, ¶ 12, the Circuit Courts of Appeal similarly held that there was probable cause for a search warrant, such that the officer’s threat to obtain one did not render the defendant’s subsequent consent involuntary. See Evans, 27 F.3d at 1231; Kaplan, 895 F.2d at 622. The substantial evidence supporting a finding of probable cause in those cases is instructive.