Wednesday, August 26, 2009

W.D.Okla.: Entry to look for gun was without a warrant or exigent circumstances, and consent was coerced

Buried in this story, is the fact that this all started with the false accusation of a rape. Glad to see where the 4th amendment is being so routinely ignored.

False rape accusation leads to violation of 4th amendment.

Police came to defendant's apartment after being called about an alleged rape there where the victim said that he had an AK-47 in the apartment. The police responded in force, beat on the door, and demanded entry. Defendant called 911 scared that the police would come in and shoot him. The 911 operator and the police at the door kept demanding entry so he let them in, and the gun was found. The entry was warrantless and without exigent circumstances. United States v. Henderson, 2009 U.S. Dist. LEXIS 65918 (W.D. Okla. July 29, 2009):
Based on the facts established at the hearing and the totality of the circumstances, the court concludes that while Mr. Henderson did consent to the search of his apartment, his consent was not voluntary within the meaning of Schneckloth. A number of factors, no one of which is determinative by itself, contribute to that conclusion. Defendant's contact with the officers occurred in the middle of the night and in a private location where, apart from the investigating officers, he was by himself. The defendant was resistant to any entry into his apartment by the police and eventually agreed to it only after repeated requests or instructions to do so from both the investigating officers and the 911 operator. He had been told someone would be back to forcibly enter his house if he did not speak with officers. He was highly agitated and fearful for his safety, in addition to being confronted with what he (and eventually the officer) viewed as a false charge of rape. He was approached by officers with guns drawn and, perhaps more importantly, was handcuffed throughout the encounter after the entry by the police. These factors played out against the backdrop of a defendant who suffered from mental illness, was only recently released from mental health custody, and who appears to have been suffering from paranoid delusions during this particular encounter. In these circumstances, the government has not carried its burden to show that defendant's consent to search was voluntary and freely given.

Reasonable suspicion developed from defendant's nervousness, stammering, failure to make eye contact, an expired rental agreement, and being way off course. United States v. Masterson, 2009 U.S. Dist. LEXIS 65941 (D. Vt. July 29, 2009).*