Repeated threats by police to arrest a woman who refused permission to search her house, their refusal to allow her to go inside where her two children were, and their decision to twice separate her from her mother for questioning meant her eventual consent for the search was not voluntary, the state Court of Appeals has ruled.
Also contributing to the ruling was an officer's statement that he would not leave until the man they were seeking, Michael Ormosen, was found.
The unanimous, unsigned decision by the three-member District IV appellate panel reversed an earlier ruling by Columbia County Circuit Judge Andrew Voigt. The appeals court vacated Ormosen's felony drunk driving conviction and ordered the suppression of evidence obtained as a result of the illegal search.
Panel members were Appellate Judges Rachel Graham, Jennifer Nashold, and Chris Taylor.
The panel summarized witness testimony from an evidentiary hearing separately, beginning with Fall River Police Officer Spencer Oemig.
Oemig said witnesses told him that Ormosen hit a parked car with his motorcycle after drinking at a bar, the panel said. Ormosen fled the scene on foot.
Oemig went to Ormosen's home to look for him. He saw Ormosen's wife, Paulette, and her mother, Alice Pichler. Paulette, responding to Oemig's question, said she had not seen her husband since he left in the morning after an argument.
She also declined his request for permission to search the house because her children were inside.
At some point, Oemig testified at an evidentiary hearing, he told Paulette that Ormosen had been in an accident and he was concerned about his well-being.
"After Paulette first refused to allow Oemig entry into the home, Oemig separated Paulette from Pichler and informed Paulette that she needed to remain where she was in the front yard," the panel wrote.
He questioned Pichler first and she denied seeing Ormosen that day. Pichler offered to look for him in the house if Paulette granted permission, which she did.
While Pichler was gone, Oemig again questioned Paulette and Paulette again said she did not know where she was.
"Oemig told Paulette that he would arrest her for the crime of obstructing an officer if he became aware that Paulette was lying to him." the panel said. Paulette became nervous and upset."
Pichler came out of the house; a second officer arrived. The two women were again separated. Oemig again asked permission to search; Paulette again declined.
"Oemig agreed that Paulette denied him consent to search at least twice, but he could not recall if she did so more than twice," the panel said. "At various points during his conversation with Paulette, Oemig informed her that lying to police was considered obstructing, a criminal offense."
After Paulette's last refusal, Oemig told her “'something to the effect of I’m going to wait here until [Ormosen] comes out because he will have to come out at some point. At that time I’m going to arrest [him], and I’m going to arrest you as well for obstructing.' ”
The panel added in a footnote: "Oemig also testified that he told Paulette that he 'would wait by the residence and that eventually [Ormosen] would come out at which point they would both be placed under arrest.' ”
Paulette consented to the search. Ormosen was found hiding in the attic and taken into custody.
"Oemig testified that if Paulette had not granted him permission to enter the residence, he 'would have stayed here at the house for a while to see if anybody exited the home,' ” the panel wrote. "Specifically, Oemig would have stayed 'the remainder of [his] shift, a few extra hours maybe.'”
"At no point during the encounter did Oemig consider trying to obtain a warrant to search the home for Ormosen,' " the judges continued. "Oemig believed his failure to obtain a warrant was due to his 'inexperience,' and he further testified that, if he had it do over again, he probably would have sought a warrant after Paulette denied him entry into the home the first time."
Paulette's testimony was generally consistent with Oemig's, but did have some differences.
She and Pichler went out looking for Ormosen about 6:30 p.m., after he failed to turn up for dinner. A bartender told her about the accident and Paulette and Pichler went home and sat on the deck for about 15 minutes before the Oemig arrived.
"Oemig asked Paulette if she knew where Ormosen was, and when Paulette said she did not, Oemig told her that if she knew where Ormosen was and was not telling Oemig, she could be placed under arrest," the panel said. " At some point during this exchange, he also asked for consent to look for Ormosen in the house and Paulette refused."
"According to Paulette, Oemig asked her for consent to search the home '[a]t least four or five' times and told Paulette that she could be arrested for obstruction of justice '[e]very single time,' ” the panel said. "Paulette denied consent because her children, who were then seven and twelve years old, were in the house."
Oemig's final threat was different and that is what prompted Paulette to give consent.
He said something to the effect of, 'I’m just going to wait for him to come out and arrest both of you,'" the panel said.
Paulette testified that she began crying about half an hour after first meeting Oemig.
"She testified that the officers required her to stay outside in the yard with them and that they would not let her go into her home, except when Oemig directed her to get Ormosen’s business phone and to come back immediately, which Paulette did," the panel said.
She finally consented to the search, she said, because the officers basically told her they would not leave unless she let them in the house.
" 'This was already over an hour,' " she testified. "'My kids were upstairs looking out the window. I can’t tell [the kids] anything while I’m outside my house. '”
"She testified that she was not free to leave but that she did not ask to go into her home or request that the officers leave her property." the panel wrote.
Pichler's testimony did not add much to the others', the panel said.
"She agreed to look for Ormosen on the first floor of the house but did not go upstairs because her grandchildren would not want to go to bed if they saw her; and that she believed that prior to being permitted to leave she asked once or twice to leave but that the officers told her they had more questions," the panel said.
Voigt denied Ormosen's suppression motion, ruling that "there was actual consent and that the consent was voluntary," the panel said.
The circuit judge made several factual findings, including that "Oemig also told Paulette, in the circuit court’s words, that Oemig 'would remain in the vicinity of the residence … to await [Ormosen’s] exit from the home and then he would arrest both. At this point, Paulette [gave] Oemig permission to enter the residence.”
The appeals panel, though noted that "the circuit court’s complete statement was that Oemig told Paulette he 'would remain in the vicinity of the residence in a squad car potentially across the street to await [Ormosen’s] exit from the home and then he would arrest both.' (Emphasis in original decision.) Although it is unclear what the court meant by 'potentially,' we note that there was no testimony (or any other evidence) at the suppression hearing that Oemig stated he would wait in a squad car across the street. Moreover, neither party relies on such a finding."
Paulette's insistence that she did not know where Ormosen was may well have been true, Voigt said, but Oemig was not under any obligation to accept it as true, Voigt said.
The panel laid out several factors related to consent, including whether the police used threats, physical intimidation, or punishment to obtain consent; whether the conditions attending the request to search were congenial, nonthreatening, and cooperative, or the opposite; how the person giving consent responded to the request to search; the characteristics of the consenting individual, including emotional condition, and prior experience with the police; and whether the police explained that consent could be refused.
Oemig did threaten to arrest Paulette but, as the state argued, " 'it was only a ‘threat’ to do what [the officer] would have had the lawful authority to do: arrest Paulette for obstruction if he developed probable cause that she lied about knowing where Ormosen was. ' ”
The state failed to meet its burden on the congeniality and response factors, which the panel considered together.
"Our Supreme Court has stated that '[a]n initial refusal of a request to search will weigh against a finding of voluntariness,' ” the panel said. "Here, this factor weighs more heavily against voluntariness, given that there was more than one refusal prior to consent."
In addition, the panel said, the evidence shows that "Paulette’s encounter with the officers was far from congenial, nonthreatening, and cooperative."
Paulette's emotional condition "undisputedly was one of distress and vulnerability, and there is no indication that she had any prior 'experience with the police' that might have made her more resistant to the pressure of the police conduct here," the panel said.
Finally, evidence shows that police did not inform Paulette of her right to refuse consent, the panel said.
"We conclude that the state has not met its burden of establishing by clear and convincing evidence that Paulette voluntarily consented to the officers’ entry into the Ormosens’ home," the judges wrote.
Ormosen was represented by attorney Lauren Stuckert; the state was represented on Assistant Attorney General John Blimling.
The full decision in State v Michael Ormosen is here.
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