When will consent to a search warrant be invalidated if the officer makes a threat to obtain the search warrant?

One factor to be considered is whether a threat to obtain a search warrant will invalidate a subsequent consent. Courts have drawn distinctions where, on one hand, an officer merely says that he will attempt to obtain a search warrant or whether, on the other hand, he says he can obtain the search warrant, as if it were a foregone conclusion. However, consent is not likely to be held invalid where an officer tells a defendant that he could obtain a search warrant if the officer had probable cause upon which a warrant could issue. See United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir.1983), cert. denied, 471 U.S. 1021, 105 S.Ct. 2030, 85 L.Ed.2d 313 (1985) (no coercion where an officer said he could obtain a warrant if consent were refused but there was ample evidence to support probable cause); United States v. Faruolo, 506 F.2d 490 (2d Cir.1974) (upholding a consent search where the defendant was given his Miranda rights, told that he had the right to refuse, and probable cause existed as to the search).

The fact that consent was given while under arrest does not, in and of itself, make it involuntary, especially where a defendant was informed of his right not to consent, United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir.1988), and informed of his Miranda rights, United States v. Licata, 761 F.2d 537 (9th Cir.1985); United States v. Wellins, 654 F.2d 550, 557 (9th Cir.1981).