State v. Scott Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997)
For Kiekhefer: Linda Hornik
In determining whether a statement (confession) was voluntary, courts must independently examine the record and apply the totality of circumstances test. See Arizona v. Fulminante, 499 U.S. 279, 286-87 (1991). “In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possible vulnerable subjective state of the person who consents.” Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973). Circumstances the court should consider are the consenting party’s age, intelligence, education, experience and knowledge of the right to withhold consent, as well as evidence of inherently coercive tactics, either in the nature of police questioning or in the environment in which the questioning took place. See id. at 226-27. The following facts weigh against a determination of voluntariness: (1) the defendant was in custody; (2) the arresting officers overmastered the suspect; (3) Miranda warnings were not given prior to the search; (4) the defendant was not told he had a right to withhold his consent to be searched; or (5) the officers claimed they could obtain a search warrant. See United States v. Kim, 25 F.3d 1426, 1432 (9th Cir. 1994).
We conclude that Kiekhefer’s statements and purported consent were not the product of a free and unconstrained choice. Although Kiekhefer’s age, intelligence and education favor admission, these factors are far outweighed by the nature and environment of the police questioning.
First, the agents made a sobering show of force. Kiekhefer was immediately handcuffed and interrogated by four agents who had only minutes before entered his room both unannounced and uninvited. Despite being in custody, Kiekhefer was not provided Miranda warnings….
Equally important to the voluntariness analysis is the fact that Kiekhefer was not informed of his right to withhold consent to search, particularly after the agents had searched “the area that he was in.” See Schneckloth, 412 U.S. at 248-49 (subject’s knowledge of a right to refuse is a factor to be taken into account). The fact that Kiekhefer initially refused to consent to a search of his room also militates against a finding of voluntariness. See United States v. Pulvano, 629 F.2d 1151, 1157 (5th Cir. 1980) (prior refusal is a factor to be considered, but not determinative).
Finally, the agents postured about obtaining or seeking a search warrant if Kiekhefer would not consent to a search….