Judge Find Police Threats Invalidated Consent to Search

, New York Law Journal

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Police officers' statements that they could obtain a search warrant even though they knew it was unlikely has led a federal judge to suppress a gun seized from a defendant's home.

Southern District Judge Lewis Kaplan (See Profile) held that police representations about getting a search warrant and a second statement to defendant Christian Munoz that a gun found in his home would entitle them to arrest everyone in the house, invalidated Munoz's consent for a search.

Kaplan said the involuntary consent—and a similar consent to a search obtained from Munoz's father, required that the gun police ultimately found be kept out of evidence.

Kaplan issued his ruling in United States v. Munoz, 13 Crim. 0506, Wednesday following a two-day suppression hearing that concluded in October.

"Where police have an honest basis for their statement, it is not coercive to make it," Kaplan said. "But false threats made in order to obtain consent deprive the suspect of a free and informed choice based on the realities before him."

On May 1, 2013, Munoz was arrested for possession of marijuana and taken to the 41st Precinct in the Bronx, where Sergeant Christopher Pasquale questioned him without Miranda warnings about his knowledge of crimes in the area and insisted he was not questioning him about his own criminal activity.

At one point, Pasquale said to Munoz "you know, you're lying so much, I wouldn't be surprised if you had a gun."

The sergeant said Munoz's evasive reaction led him to believe he might indeed have a gun, so he questioned another man arrested along with Munoz and learned that Munoz had a gun, probably in his home.

Pasquale and four officers went to the apartment hoping to obtain consent for a search from Munoz's father.

While the officers waited, Pasquale returned to the precinct, where he and another officer told Munoz that if they found a gun in the apartment, all the occupants of the apartment would be subject to arrest.

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