A Brown County man recently won the right to withdraw his guilty plea after the Court of Appeals held that drug task force investigators used impermissible coercion to gain entry to his home.

“This case is a classic example of law enforcement tactics that deeply undermine individual rights and ultimately undercut the state’s interest in investigating and prosecuting crimes,” said defense attorney and Wisconsin Justice Initiative President Craig Johnson.

The District 3 per curiam (nonprecedential) opinion issued from the three-judge panel of Presiding Judge Lisa K. Stark and Judges Thomas M. Hruz and Gregory B. Gill.Cris Monge-Davila entered a no contest plea to a drug-related charge after the trial judge denied his motion to suppress evidence found in a search of his apartment.

Whether the search was lawful hinged on whether Monge-Davila willingly allowed officers into his home.

In the trial court, the state maintained that Monge-Davila consented to officers’ search or his home. Monge-Davila argued he never gave it.

Brown County Circuit Court Judge Marc C. Hammer concluded after a suppression hearing that Monge-Davila consented, as he was heard on body worn camera saying, “I don’t have nothing, but okay.”

Monge-Davila “weighed the options and wanted to minimize the possibility of additional problems,” Hammer said in his ruling.

The Court of Appeals disagreed. Looking at the evidence and facts of Monge-Davila’s interaction with officers, the appeals court rejected the state’s characterization of the encounter as “undramatic.” The appellate court said it “view(ed) the interaction as being rather disagreeable and coercive.”

In July 2022, members of the Brown County drug task force were executing a warrant at the apartment across the hall from Monge-Davila’s. During that operation, Monge-Davila exited his apartment to find “several armed officers wearing tactical vests, one of whom immediately began asking if he had drugs in his apartment,” wrote the court.

Body-worn camera footage presented at the trial court suppresseion hearing and reviewed by the Court of Appeals showed several officers looking inside Monge-Davila’s apartment before he closed the door behind him. 

The body-cam footage showed at least two officers had Monge-Davila physically cornered at all times. They frisked him and took his phone. One officer grabbed Monge-Davila by the arm, preventing him from leaving.

According to the opinion, more than seven officers were present in the hallway when an officer asked Monge-Davila, “Is there some fucking weed coming out of your apartment? I thought I smelled something.” Monge-Davila replied, “no.“

Officers suggested they could get a warrant but would not be forgiving if they had to “go the extra mile.”

The appeals court found that any consent given by Monge-Davila was not voluntary. “’Consent to search must be unequivocal and specific, and it must be freely and voluntarily given,’” the court wrote, citing case law. “’Consent is not freely and voluntarily given if it is the result of a mere acquiescence to a claim of lawful authority.’”

“Throughout the interaction, Monge-Davila repeatedly expressed to the officers that he did not understand what was going on and that he did not have drugs in his apartment,” wrote the court. He had also rejected officers’ prior requests to come inside his apartment.

“The officers made a show of force and otherwise engaged in coercive actions,” the court said.

“These circumstances would demonstrate to any reasonable person that the interaction would not end until Monge-Davila provided his consent,” the court wrote.

“A case like this reinforces the importance of a trial judge’s role in deterring unconstitutional conduct by police through vigorous enforcement of the exclusionary rule,” said Johnson.

The decision is available here.