{"id":5927,"date":"2012-06-10T19:25:41","date_gmt":"2011-08-21T23:25:54","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-08-22T05:27:19","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=5927","title":{"rendered":"NM: Armed officers and a helicopter made consent invalid"},"content":{"rendered":"

Defendant\u2019s property was surveilled from overhead by a National Guard helicopter for a grow operation. When his plot was seen, armed officers swooped in from the ground and got his consent to enter, but the consent was tainted by their actions: armed officers seeking consent with a helicopter overhead. State v. Davis<\/a>, 150 N.M. 611, 2011 NMCA 102, 263 P.3d 953 (2011), Writ of certiorari granted State v. Davis, 2011 N.M. LEXIS 496 (N.M., Oct. 4, 2011):<\/p>\n

P16 Although Defendant gave specific and unequivocal consent, we conclude that the consent was given under duress and coercive circumstances. Defendant was surrounded by numerous uniformed, armed law enforcement officers and several law enforcement vehicles while a helicopter hovered overhead. Professor LaFave observes in his treatise that, although such circumstances are not per se coercive, \u201c[t]he presence of a number of policemen is likely to suggest that the police are contemplating an undertaking which does not depend upon the cooperation of the individual from whom permission to search is being sought.\u201d 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment \u00a7 8.2(b), at 62 (4th ed. 2004). Although only Officer Merrell approached Defendant to seek consent, it is undisputed that the remaining officers were spread throughout the property and were visible to Defendant during his exchange with Officer Merrell.<\/p>\n

P17 In its discussion of the lawfulness of the helicopter surveillance, the district court commented that there was \u201cmerit to the claim that the police swooped in as if they were in a state of war, searching for weapons or terrorist activity,\u201d which \u201ccan be terrifying and intimidating to most normal persons.\u201d Although the district court found the helicopter search \u201cjust barely permissible\u201d on these facts, it did not address these same facts in the context of whether the consent was coerced. In fact, the only circumstance the district court mentioned in its discussion of coercion was Officer Merrell\u2019s statement that he would obtain a search warrant if Defendant did not consent to the search. The court dismissed this circumstance as simply an \u201cexplanation of the process that would be followed.\u201d<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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