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.

They also told him that if there was no consent, they would call his parole officer, who could search the apartment without a warrant. Munoz became emotional and consented to the search.

Officers waiting at the apartment encountered Munoz’s brother, Christopher, who let them into the apartment and told them that his father, Alipio Munoz was inside. Police then told Alipio Munoz that they were waiting on a warrant and if the warrant arrived and they found a gun, they would arrest everyone in the home.

Alipio Munoz gave verbal permission to search the house and later signed a Spanish language consent form. Police found the gun in a bag on a desk chair in the living room, right where Christopher Munoz said it would be.

In his opinion Wednesday, Kaplan said, “It is not clearly established whether consent is voluntary where, as here, the police threaten to obtain a search warrant in the absence of consent knowing that a search warrant most likely would not issue,” he said. “The Second Circuit indicated in United States v. Vasquez (638 F.2d 507 (2d Circuit 1980)) that consent obtained in such circumstances may be invalid but did not decide the issue,” and “at least one court” in the Southern District has since held such consent is involuntary.

Kaplan said, “This is a sensible rule and an extension of the Supreme Court’s holding in Bumper v. North Carolina, 391 U.S. 543 (1968), where police falsely stated that they had a warrant and the court reasoned ‘the false claim of lawful authority to search effectively coerces the consent.’”

“Where, as here, the police falsely claim only that they will or can obtain a warrant, the statement’s coercive force is perhaps more attenuated, but it remains,” Kaplan said. “The subject has no legitimate choice when he is led to believe that a search is inevitable when, in fact, it is not.”

As to the consent from Alipio Munoz, one witness who lived in the home testified that police said they were waiting for a warrant and if the warrant arrived before they obtained consent and they found a gun “they were going to arrest everyone who was in the house.”

One police officer countered that what she actually said was “with a search warrant everyone in the apartment is subject to getting arrested since that’s the law.”

Regardless of the exact language used by the officer, Kaplan said “that statement, or clear implication, whichever it was, was highly misleading” and “this case is not akin to those in which police represent accurately their intent or ability to obtain a search warrant.”

The judge also found the government’s claim that police would have called Munoz’ parole officer unpersuasive.

“Were it clear or highly likely that parole would have conducted a timely search in these circumstances, this argument might prevail,” he said. “But on these facts it must fail. The police claim they would have called parole but they had not done so despite the fact that several officers had been waiting outside the apartment for a considerable period in the hope of gaining entry by consent.”

The judge went on to find the statement to Christopher Munoz that his loved ones might be arrested if he did not consent was coercive.

He said the “government has introduced scant evidence in support of a theory of constructive possession,” because while it is arguable that the co-tenants, including Munoz’s father and brother, might have had dominion and control over any common spaces in the apartment, “it is not clear, however, that they had dominion and control over the living room area in which Christian slept and where he kept his belongings.”

“This is the only section of the apartment the officers requested permission or intended to search,” he said.

Finally, Kaplan held that the initial admission by Munoz that he had a gun must be suppressed because his consent was involuntary. He then held that a later confession must be suppressed as it was tainted by the means by which the first confession was obtained.

George Golzter represents Munoz. He declined comment.

Assistant U.S. Attorneys Brook Cucinella and Margaret Garnett represent the government.