Sept. 2, 2025 – A police request to enter an apartment to search for a missing child – when they really sought evidence of drug dealing – voided any consent that the defendant may have given, the U.S. District Court for the Eastern District of Wisconsin decided in U.S.A. v. Jose Angel Hernandez-Pineda, No. 25-CR-64 (Aug. 25, 2025), available at 2025 WL 2438683.

“In this case, the officers told Hernandez-Pineda that they needed to get into his home to verify that a missing child was not there.

“Upon entry, however, they searched places, i.e., drawers, bathroom closets, a duff[le] bag, where drugs were likely to be found, not places where a missing child would be located,” wrote Judge William C. Griesbach in granting the motion to suppress evidence.

“Even if Hernandez-Pineda’s consent could be deemed voluntary, the search conducted by the officers exceeded the scope.”

Ruse

As a part of a joint task force between local law enforcement and the Drug Enforcement Agency (DEA) on March 7, 2024, agents followed a red Audi leaving Chicago that they believed “had engaged in bulk-cash smuggling.”

They followed the car to an apartment near Green Bay where the driver, whom they now knew was Hernandez-Pineda, parked the car in a garage and entered the building.

He came out of the apartment an hour later. Agents followed his car and observed him engaged in what looked like a hand-to-hand drug deal.

When the agents confronted Hernandez-Pineda back at the apartment, they did not want to reveal a larger drug investigation. Instead, they told Hernandez-Pineda that they needed to search his car and home for a missing three-year-old child.

Hernandez-Pineda allowed them to search the car but denied he lived in the apartment complex.

As the agents persisted in saying they had to check his apartment, Hernandez-Pineda explained he could not understand them because his native language is Spanish. Officers provided an interpreter.

Eventually, Hernandez-Pineda allowed the officers into the building, unlocking his apartment.

In their search, officers “began looking in dresser drawers and closets. In the bathroom closet, they found a duffle bag that contained two kilogram-sized bricks of [c]ocaine” and a gun nearby.

A Mexican ID and passport were in the master bedroom, although the record does not indicate whose they were.

Agents asked Hernandez-Pineda to sign a consent for the search, which he did.

The unit was rented to the person with whom Hernandez-Pineda drove out of Chicago. The lease prohibited visitors longer than three days without prior landlord consent.

Hernandez-Pineda was charged with possession of 500 grams or more of cocaine with intent to distribute, possession of a firearm in furtherance of a drug trafficking offense, and possession of a firearm as an illegal alien.

The defendant sought to suppress evidence from the search that he argued he involuntarily consented to of a place where he had an expectation of privacy.

Expectation of Privacy

The reasonable expectation of privacy includes an individual’s subjective expectations that society would consider reasonable.

Although “Hernandez-Pineda is not in the country legally and may be under an order of removal,” the district court explained, “the government does not argue that he is outside the protection of the Fourth Amendment.”

The district court listed many facts supporting Hernandez-Pineda’s expectation of privacy.

He gave the apartment address in a previous traffic stop that law enforcement relied upon and entered on the consent form. Officers “referred to it as his apartment.”

His car parked in a garage unit showed residence – and officers knew that at the time.

He easily found the key and entered the locked apartment for the search. While police were present, he changed out of his sweatshirt into a jacket, indicating residence.

Although Hernandez-Pineda’s name wasn’t on the lease, the district court explained that information was “after-acquired evidence,” and although he could not reside under the lease, he could stay temporarily under its terms, which weren’t dispositive for the Fourth Amendment claim.

The district court concluded that Hernandez-Pineda had a reasonable expectation of privacy.

Coercion

Only a “freely and voluntarily given” consent supports a search, the district court explained. “Trickery, fraud, or misrepresentation on the part of the police to gain entry naturally undermines the voluntariness of any consent.”

“Consents elicited by law enforcement officers presenting themselves as law enforcement officers, but nevertheless lying about their authority or the purpose and scope of their investigation, are particularly troublesome,” the district court explained.

The concern is straightforward. Citizens assume they can trust the police.

A type of invalid ruse involves officers falsely stating urgent action was necessary, such as a gas leak or missing child, which “leave an occupant with little choice but to consent or risk loss of life or serious injury,” the district court said.

A court also considers the individual’s specific circumstances.

Hernandez-Pineda faced a language barrier and “repeatedly expressed difficulty in understanding what the officers were saying.” Police also didn’t advise him of his constitutional rights, the district court said.

More troubling to the district court, “the ruse used by the officers, together with their insistence that they had to search his apartment to verify that a missing child was not there, rendered any consent on his part involuntary.”

With descriptions “that it was their job to do” and “they could not leave until they satisfied themselves that the missing child was not in Hernandez-Pineda’s apartment,” the district court concluded police “gave him no choice.”

The sense of urgency – that a little child could die – exacerbates the violation, which another U.S. District Court held invalidated consent.

But even if the consent had been voluntary, the search exceeded its scope when police looked through places too small for a child to hide, such as a drawer, the district court concluded in suppressing the evidence.

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.