A recent case from the New Mexico Court of Appeals addressed the validity of the consent to a search under the 4th Amendment. The case of State v. Norman Davis involved the search of an individual's property for marijuana.
In a joint operation, the New Mexico State Police, the New Mexico National Guard and officers from a number of other law enforcement agencies entered Mr. Davis' property to investigate the presence of marijuana. The numerous officers were heavily armed with handguns and AR-15 semi-automatic weapons. In addition, the operation included two Army National Guard helicopters which were hovering over the residence at the time that contact was made with Mr. Davis.
Mr. Davis had a greenhouse on his property. The investigation began as a result of helicopter surveillance that suggested the presence of marijuana in the greenhouse. The greenhouse had an opaque finish so it was not possible to view its contents from outside the greenhouse which raises some questions regarding the validity of the initial suspicion.
Against this backdrop, Mr. Davis was asked for consent to search his greenhouse. Mr. Davis asked the officer if he had to consent to which the officer responded "No", but it would take less than 30 minutes to obtain a warrant during which time Mr. Davis' property would be secured. During this conversation, the many other officers were scattered across Mr. Davis property to which Mr. Davis commented that it looked like they were already searching anyway.
Mr. Davis moved for suppression of the evidence arguing that the consent was invalid because it was not voluntary. His motion was denied. As a result, Mr. David entered a conditional plea reserving the right to appeal the illegal search and seizure question.
The New Mexico Court of Appeals found that there was no voluntary consent to the search. The Court laid out three requirements for voluntary consent to a search:
"First, the consent must be unequivocal and specific, second, the consent must be given without duress or coercion, and third, the first two factors must be viewed with a presumption against the waiver of constitutional rights."
The Court found that the first requirement of a specific and unequivocal consent had been met. However, the Court determined that the second had not. Instead, the Court found that the consent had been given under duress and coercion. In holding that the consent was given under duress, the court cited the helicopters, the numerous armed law enforcement, the suggestion that refusal was futile, and the fact that from the defendant's perspective, the search was already under way.
Perhaps a more subtle approach would have been warranted under the circumstances given the fact that it was a greenhouse, not a mobile meth lab, and it was Norman Davis, not Tony Montana. In any event, a softer approach would have avoided the suppression of evidence and dismissal of the claims.