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Consent – Coercion — Threat to Obtain Warrant

State v. Scott Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997)
For Kiekhefer: Linda Hornik

Issue/Holding:

“Police may not threaten to obtain a search warrant when there are no grounds for a valid warrant, but `[w]hen the expressed intention to obtain a warrant is genuine … and not merely a pretext to induce submission, it does not vitiate consent.'” United States v. Evans, 27 F.3d 1219, 1231 (7th Cir. 1994) (quoted source omitted). Arguably the agents had probable cause for a search warrant. At the time of Carlson’s statements, he had confiscated Kiekhefer’s marijuana cigarette and the baggie contained in the dresser drawer. (Ignoring, of course, the fact that whatever cause they gained at the scene was tainted by their warrantless entry).

Nevertheless, the agents had no right to imply that they could sit in Kiekhefer’s home for two hours while a warrant was obtained. The agents did not have a valid warrant permitting them to be in Kiekhefer’s home and they had no right to remain in the home, absent a valid warrant, especially if consent was revoked. See United States v. Kelly, 913 F.2d 261, 265-66 (6th Cir. 1990) (consent terminated when previous consent revoked). It was simply a misrepresentation to imply that they could remain in Kiekhefer’s home, keeping him in custody, while a warrant was obtained. See 3 Wayne R. LaFave, Search and Seizure § 8.2(c) at 654-55 (3rd ed. 1988). Clearly, Carlson intended to lead Kiekhefer to believe that resistance was futile and that he had lawful authority to search Kiekhefer’s home or room, with or without Kiekhefer’s consent.

Based on these circumstances, considered in their totality, we hold that Kiekhefer’s statements and subsequent consent were obtained in a coercive manner and were not freely and voluntarily given. Accordingly, the physical evidence derived from those statements and the consent to search must be suppressed.

 

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