Was there coercion? Good cops or bad cops? You decide.
From the court opinion:
First, Defendant’s custodial status was not voluntary. As demonstrated by Defendant’s repeated inquiries into the reasoning underlying his continued detention, Defendant did not choose to remain on site. Rather, he, Nicole Jackson, and her boyfriend stood on the side of the road in the hot sun at Trooper Allick’s request for approximately fifteen minutes until Deputy Johnson arrived. Video at 17:31 31:41. Given that Defendant wished to leave, this factor weighs against a finding of voluntariness.
Next, Deputy Johnson engaged in questionable police procedures to obtain Defendant’s consent. First, Defendant was forced to stand in the sun for approximately fifteen minutes while waiting for Deputy Johnson to arrive. Video at 17:31 31:00. Second, whereas most of the events of April 14, 2010 took place in front of the camera on Trooper Allick’s patrol car, Deputy Johnson took Defendant behind Trooper Allick’s patrol car, out of both video and audio range, while attempting to gain signed, written consent to search the vehicle. Id. Deputy Johnson admitted that he had problems with his video, Hearing Tr., 28:11 12, yet despite that knowledge he decided to take Defendant out of video and audio range instead of in front of the camera in Trooper Allick’s patrol car, where most of the other events took place. This Court finds this act both deliberate and suspect, as Deputy Johnson appeared to evade the very monitoring and accountability video cameras are installed to provide.
Furthermore, “a consent is suspect if given by one who earlier refused to consent, unless some reason appears to explain the change in position.” … Defendant had previously refused consent, and the government, Trooper Allick, and Deputy Johnson offer no reason to explain the sudden change. Indeed, after saying, “man, let me sign this,” Defendant can be heard continuing to question what was happening for at least five additional minutes. Video at 38:09 42:38.
Defendant contends Deputy Johnson threatened to impound Defendant’s vehicle should he again refuse consent to search. Hearing Tr., 28:25 29:2. Given the fact that Defendant was forced to stand in the sun for fifteen minutes, Deputy Johnson’s choice to attain consent out of both video and audio range knowing that his video unit had problems but that Trooper Allick’s was functional, Defendant’s continuing to question what was happening after supposedly consenting to the search, the lack of explanation for Defendant’s electing to grant consent after initially refusing, and the questionable police procedures employed, this Court finds Defendant’s consent to be involuntary.
Further, consent, to be valid, must also be an independent act of free will. To determine “whether the consent was an independent act of free will, and, thus, broke the causal chain between the consent and the illegal detention, the Court must consider: 1) the temporal proximity of the illegal conduct and the consent; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the initial misconduct.” Jones, 234 F.3d at 243. In the instant case, the consent overlapped with the illegal conduct, namely the illegal prolonged detention, and there were no intervening acts to separate the consent from the prior illegality. See id. (finding a close temporal proximity existed because the illegal detention continued up to the time of the defendant’s consent); Dortch, 199 F.3d at 202 (finding a close temporal proximity because the illegally prolonged detention continued until the officers sought the defendant’s consent to search his person a third time). Considering the questionable nature of the consent discussed above, the consent cannot be considered an intervening circumstance sufficient to attentuate the taint from the prior Fourth Amendment violations. See United States v. Chavez-Villarreal, 3 F.3d 124, 128 (5th Cir.1993) (finding no intervening circumstance and no dissipation of taint from prior illegality even though the defendant was told he could refuse consent because refusal seemed pointless). Here too, Defendant’s refusal seemed pointless, as his prior refusals to consent resulted in continued detention, coercive tactics, and repeated requests for consent until he finally relented, after approximately forty minutes of detention.
Finally, the purpose and flagrancy of the initial misconduct is cause for concern. Trooper Allick and Deputy Johnson’s actions betray a fishing expedition that would not end until incriminating evidence was found. Therefore, the consent is involuntary and thus inadmissible.
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Bad cops? What do you think?
