D.Kan.: 16 LEOs in house and misleading defendant about consent made consent involuntary

Consent given when 16 agents were in the house, some in tactical gear, was not consensual. United States v. Piceno, 2013 U.S. Dist. LEXIS 133056 (D. Kan. September 17, 2013):

The fact that tips the scales in this case, however, was the presence of approximately sixteen agents inside her home. The majority of the agents were wearing tactical gear and two had assault rifles and ski masks. The overwhelming presence of an unnecessarily large number of agents in her home resulted in further distress to Mayra.

Finally, while Soriano did not have to specifically inform Mayra that she had the right to refuse to consent to a search, United States v. Zapata, 997 F.2d 751, 757 n. 4 (10th Cir. 1993), Soriano misled Mayra by stating that she had already authorized a search and left little room for choice when Soriano stated that she “needed” to sign the form. Additionally, Mayra was never informed of her Miranda rights. Jones, 701 F.3d at 1318 (the failure to give Miranda rights is a factor to consider when determining voluntariness).

Taking into account the totality of the circumstances, the court finds that Mayra did not freely and voluntarily consent to a search of her residence. See United States v. Hurston, 12 F. Supp.2d 630, 639 (E.D. Mich. 1998)(consent was not voluntary when eleven officers were in the home and defendant’s young children were crying and defendant was distressed).