When a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, the government must prove by at least a preponderance of the evidence that the confession was voluntary. See Lego v. Twomey, 404 U.S. 477, 489 (1972); see also Colorado v. Connelly, 479 U.S. 157, 168 (1986) (reaffirming Lego). A long line of Supreme Court precedent makes clear that involuntary confessions, i.e., the product of coercion, either physical or psychological, are inadmissible, “not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system -- a system in which the State must establish guilt by evidence independently and freely secured….” Rogers v. Richmond, 365 U.S. 534, 540-41 (1961) (citations omitted).
“[A] finding of coercion need not depend upon actual violence by a government agent….” Ariz. v. Fulminante, 499 U.S. 279, 287 (U.S. 1991). Court have considered less traditional forms of coercion, including psychological torture, and conditions of confinement in assessing the voluntariness of the statements. See, e.g., Brooks v. Florida, 389 U.S. 413, 414-15 (1967) (confession was involuntary; the defendant was held in solitary for 14 days, “saw not one friendly face from outside the prison” and was “completely under the control and domination of his jailers”); Stidham v. Swenson, 506 F.2d 478 (8th Cir. 1974) (suspect's statement was involuntary, in part because suspect's imprisonment in solitary confinement for eighteen months in subhuman conditions, including a bug-infested cell, lack of sufficient food, and denial of visits with family and friends) (emphasis added); Arnett v. Lewis, 870 F. Supp. 1514, 1523-25, 1540 (D. Ariz. 1994) (confession was involuntary; defendant was incarcerated in “oppressive conditions,” including the lack of adequate plumbing and heating, clean water, blankets and nutrition); Townsend v. Henderson, 405 F.2d 324, 326 (6th Cir. 1968) (statement found to be involuntary; defendant held in solitary confinement with inadequate food); Wainwright v. LaSalle, 414 F.2d 1235, 1237-39 (5th Cir. 1969) (court noted defendant was in “continuous incommunicado custody for 12 hours” before confession was elicited for the first time and the ultimate confession followed prior denials) (emphasis added).
To assess the voluntariness of a statement under principles of due process as well as the adequacy of a waiver of one's Fifth Amendment privilege against self-incrimination under Miranda, a court must consider the circumstances surrounding the interrogation and the length of the detention and the conditions of confinement. See Miranda, 384 U.S. at 476 (“whatever the testimony of the authorities as to the waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights.”) (emphasis added); see also United States v. Karake, 443 F. Supp. 2d 8, 87-89 (D.D.C. 2006).
Physical circumstances are only part of the analysis, however. Psychological coercion can render a statement involuntary as well, including the threat of not being able to see family again. When evaluating psychological coercion, the courts examine the totality of the circumstances. Factors to consider are the defendant's demeanor at the time of his confession, evidence of psychological or emotional anxiety, whether the defendant is particularly susceptible to manipulation. See United States v. Jacques, 744 F.3d 804, 811-812 (1st Cir. 2014).
In United States v. Tingle, the Ninth Circuit held that law enforcement officers who warned a mother that she will not see her child in order to elicit “cooperation,” was “patently coercive,” and not “the product of a rational intellect and a free will” 658 F.2d 1332, 1336-37 (9th Cir. 1981); see also United States v. McShane, 462 F.2d 5 (9th Cir. 1972), (“[W]e can readily imagine that the psychological coercion generated by concern for a loved one could impair a suspect's capacity for self control, making his confession involuntary.”).
The same voluntariness inquiries that apply to statements also apply to a consent to search. It is well-established that law enforcement must obtain either a warrant or consent to search electronic devices such as cell phones. See Riley v. California, 134 S. Ct. 2473 (2014). Coercion, both physical and psychological, is prohibited from being used to obtain consent. See United States v. Hernandez, 2015 U.S. Dist. LEXIS 114979, *11, 2015 WL 5007821 (W.D.N.C. July 28, 2015) (“Coercion may be actual or implied, and ‘no matter how subtly the coercion was applied, the resulting ‘consent' would be no more than a pretext for unjustified police intrusion against which the Fourth Amendment is directed.' [T]he government must prove that ‘an individual freely and intelligently [gave] ... unequivocal and specific consent to search, uncontaminated by any duress or coercion, actual or implied.”) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973); U.S. v. Morrow, 731 F.2d 233, 235-36 (4th Cir 1984)).
In United State v. Hernandez, the court held that the Government failed to demonstrate that Defendant's consent was voluntary, or more than acquiescence to a claim of lawful authority. United States v. Hernandez, 2015 U.S. Dist. LEXIS 114979, *11. In that case, when confronted by the police while at the police station, Hernandez allowed the agents to search two of his three phones. Id. at *5-6. The Government argued that the defendant's consent was voluntary because he limited his consent to search, allowing agents to search two phones, but not a third phone. Id. at *18-19. However, the court held that statements made by the agents, coupled with the fact that Defendant still had not received an attorney prior to the agents' consent request “rise to a level of coercion so that his consent appears to be no more than acquiescence to a claim of lawful authority.” Id. at *19-20. The court explained, “In other words, having already requested an attorney to no avail, any refusal to provide consent was likely futile in Defendant's mind and for this reason prompted Defendant's consent. Id.
Importantly, the court in Hernandez noted that a concerning factor was “the fact that the locations where Defendant gave verbal and written ‘consent' were (1) in custody while at the police station and (2) in custody in a patrol car in front of the apartment residence to be searched right before the search was conducted, respectively.” Id. at *20-21. The court explained that “[T]he distinction between in custody consent in a public location and in custody consent in the confines of a police station is important.” Id. (citations omitted) (emphasis added). Furthermore, while an individual's signature on a consent-to-search form is indicative of voluntary consent, it is not dispositive. See U.S. v. Digiovanni, 650 F.3d 498, 513-15 (4th Cir. 2011); United States v. Hernandez, 2015 U.S. Dist. LEXIS 114979, *22-23.
 United States v. Hernandez, 2015 U.S. Dist. LEXIS 114979, is a Magistrate Judge's Report & Recommendation that the District Court later adopted in whole in United States v. Hernandez, 2016 U.S. Dist. LEXIS 8277 (W.D.N.C. Jan. 25, 2016) (“the Court finds that the M&Rs employed the correct legal standards and the findings are appropriate in light of the entire evidentiary record.”).
If you believe your statements were a product of Government coercion, it is important to have experienced attorneys on your side. Contact us to assess your possible defenses.