09-2184 U.S. v. Hicks

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Search and Seizure
Consent; pretextual threats

Where the lead investigator took active steps to obtain a warrant prior to entering a home with the owner’s consent, the threat to the owner that he would get a warrant if consent was denied was not pretextual.
“Although the district court only mentioned it in passing, we note that the magistrate judge appropriately credited Detective Armon with taking actual steps to get a search warrant such as going to the front stoops or entryways of Hicks’s and Stevens’s residences to gather ‘the necessary information so that we could provide it to [Assistant District Attorney] Mr. Griepp for the description of the place to be searched if need be.’ Detective Armon also briefed Assistant District Attorney Griepp, who told Armon, ‘if you have any problem or you think you need a warrant, call me.’ Detective Armon had Assistant District Attorney Griepp’s cell phone number on hand so he could call him at his home. Detective Armon testified that he did not pursue a warrant ‘[b]ecause of the timeframe that we were working with’ and his desire to prevent the disclosure of confidential sources. These explanations provide sufficient reason for Detective Armon to try to perform the search without a warrant. That Detective Armon took steps to get a warrant, briefed the district attorney, and had sufficient reason to try to perform the search without a warrant are factors that bolster the district court’s finding that Armon’s instructions to Detective Brown to contact him if he needed a warrant were in fact genuine and not a pretextual ruse potentially vitiating Smith’s consent. See White, 979 F.2d at 542 (holding that if ‘the expressed intention to obtain a warrant is genuine, however, and not merely a pretext to induce submission, it does not vitiate consent’).”

Affirmed.

09-2184 U.S. v. Hicks

Appeal from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Tinder, J.

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