Defendant's Consent to Search Was Involuntary Where Agents Falsely Implied Defendant Was In Danger from a Bomb

U.S. v. Harrison, 2011 WL 1782961 (5/11/11) (Okl.) (Published) - The 10th affirms a district court's suppression grant because the defendant's consent to search was involuntary. At the defendant's apartment door, ATF agents falsely told the defendant the police had received an anonymous phone call saying there were drugs and bombs in the apartment. The defendant replied he didn't think there were bombs in his apartment. One of the agents said: "any time we get a phone call like this our boss makes us come and investigate and see if there's a threat or danger." One of the agents assured him they would not bust him for a small bag of weed. The district court found the ensuing consent involuntary because the agents implied the defendant might be in danger from a bomb. The government claimed the agents only implied the defendant was unlawfully possessing bombs. While officers can use deceit and trickery in some circumstances, the 10th ruled, deceit and trickery can render a consent involuntary where the misrepresentations deprive the individual "of the ability to make a fair assessment of the need to surrender his privacy." Here the court did not clearly err when it found the officers created the impression the defendant was in physical danger. The lack of advice that the defendant could refuse consent was also a factor. The defendant's willingness to sit in the living room during the agents' search did not mean he felt no threat. And, besides, his subjective fear is only one factor in the involuntariness analysis. The 10th emphasized it was the government's burden to prove the consent was voluntary.