State v. Mullien
A threat to take an improper action may vitiate the voluntariness of consent to search; but, because once invited in, a detective had the right to remain present within the residence while a search warrant was sought, his statement that he would do so was not misleading or coercive and did not vitiate consent. Following a jury trial, Robert Mullien, III, was found guilty of risk of injury to a child and assault in the second degree. He appealed claiming, inter alia, that the trial court improperly denied his motion to suppress evidence and a confession obtained during a search of his home in which he admitted to striking his niece with his hand, a belt and a length of rope located during the search. The Appellate Court affirmed the judgment. The defendant contended that the court improperly denied the motion to suppress finding that he freely and voluntarily consented to the search of his home. Examining the totality of the circumstances, the Appellate Court agreed that the defendant's consent was voluntary. Testimony was adduced at the suppression hearing that the defendant and his wife invited the detectives into their home. The detectives informed the defendant of his right to refuse consent to search, that he was free to leave and explained the written consent form line by line. The defendant argued that the detective's statement that they would apply for a search warrant coupled with the indication that one detective would remain at the kitchen table while waiting for the warrant was coercive because it made the defendant fear that unless he consented to the search, the detectives would remain indefinitely in his home. The panel found that no improper threat was made. If the defendant had refused to allow the search, it would have been proper for the police to secure the premises while awaiting a search warrant. The detective's statement was not misleading or coercive. The detectives made no reference to the defendant being arrested for failing to consent as in a 1994 Montana case cited by the defendant. Additionally, the trial court properly allowed the state to amend the information, after trial commenced, to expand the time frame of the charges.