23-8041 United States v. Brooks
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 24th day of November, two thousand twenty-five.
PRESENT: RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges, CHRISTINA REISS, Judge. * _____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 23-8041
KHARISMA BROOKS,
* Chief Judge Christina C. Reiss, of the United States District Court for the District of Vermont, sitting by designation. Defendant-Appellant,
DARNELL MACON, SR.,
Defendant. _____________________________________
For Defendant-Appellant: GAUTAM RAO, (James I. Glasser, on the brief), Wiggin and Dana LLP, New Haven, CT.
For Appellee: ANDREW R. DURHAM, (Sandra S. Glover, on the brief), Assistant United States Attorneys, for Marc H. Silverman, Acting United States Attorney for the District of Connecticut, New Haven, CT.
Appeal from a judgment of the United States District Court for the District
of Connecticut (Jeffery A. Meyer, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the December 13, 2023 judgment of the
district court is AFFIRMED.
Kharisma Brooks appeals from a judgment of conviction following a jury
trial at which she was found guilty of aiding and abetting the unlawful possession
of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2),
and 2. On appeal, Brooks challenges the district court’s denial of her motion to
suppress evidence seized during a warrantless search of her apartment. We
2 assume the parties’ familiarity with the underlying facts, procedural history, and
issues on appeal, to which we refer only as necessary to explain our decision.
After receiving a tip that Brooks had purchased firearms on behalf of
Darnell Macon, Sr., whose prior felony convictions prohibited him from
possessing a firearm, agents of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (the “ATF”) and local police arrived at Brooks’s apartment complex,
where Macon also lived, to interview her about the purchases. Although the
officers did not have a warrant, they entered Brooks’s apartment after she invited
them inside. They eventually seized two firearms from the master bedroom
closet. Brooks was later charged with one count of making false statements
during the purchase of a firearm, and one count of aiding and abetting Macon’s
unlawful possession of a firearm.
Before trial, Brooks and Macon jointly moved to suppress the firearms
seized from the apartment. The district court held a two-day suppression
hearing, at which it heard testimony from the two ATF agents who conducted the
search and one of the police officers who was present at the scene. The district
court also considered the affidavits submitted by Brooks and Macon, which
3 contradicted the officers’ testimony. The district court ultimately credited the
officers’ version of events and denied the motion.
At the conclusion of her trial, the jury found Brooks guilty of aiding and
abetting Macon’s unlawful possession of a firearm but returned a not guilty
verdict on the charge of making false statements in connection with the purchase
of a firearm. The district court ultimately sentenced Brooks to twelve months and
one day of imprisonment, to be followed by a three-year term of supervised
release.
On appeal, Brooks challenges the district court’s denial of her motion to
suppress the firearms recovered from her apartment. In reviewing a district
court’s denial of a motion to suppress evidence, “we review a district court’s
conclusions of law de novo and its conclusions of fact for clear error.” United States
v. McKenzie, 13 F.4th 223, 231 (2d Cir. 2021). Whether law enforcement officers
obtained voluntary consent to conduct a search “is a question of fact to be
determined from the totality of all the circumstances.” Schneckloth v. Bustamonte,
412 U.S. 218, 227 (1973). As part of this inquiry, “we view the evidence in the light
most favorable to the government, and we give special deference to findings that
are based on determinations of witness credibility.” United States v. Delva, 858
4 F.3d 135, 148 (2d Cir. 2017) (alteration accepted and citation and internal quotation
marks omitted). On the record developed at the hearing, we see no basis to
disturb the district court’s conclusion that the officers obtained voluntary consent
before conducting the search of Brooks’s apartment.
At the suppression hearing, the ATF agents each testified that after they
approached Brooks’s apartment, one of the agents asked her outside if she
“[w]ould show [him] where the firearms are.” Sp. App’x at 2. According to the
officers, Brooks replied “[s]ure,” in a “very certain manner,” before walking back
into her apartment, aware that the agents had followed her inside. Id. Unable
to locate the firearms, Brooks returned to the front door and called out to Macon,
who had been outside in conversation with the two police officers, and asked him:
“[W]here are those guns? Can you find those guns?” Id. at 3. Macon then
entered the apartment, aware that the agents had followed him upstairs as he
retrieved two firearms from the bedroom. At no point did Brooks or Macon
object to the agents’ presence in the apartment or ask them to leave.
The district court was justified in relying on these affirmative statements
and actions to conclude that the agents reasonably believed they had consent to
enter the apartment. It is well settled that a suspect’s consent to a search does not
5 require any magic words. See United States v. Buettner-Janusch, 646 F.2d 759, 764
(2d Cir. 1981) (“[A] search may be lawful even if the person giving consent does
not recite the talismanic phrase: ‘You have my permission to search.’”). In
addition, “consent may be inferred from an individual’s words, gestures, or
conduct.” Id. Here, Brooks’s affirmative “sure” and calling out to Macon for
assistance, followed by Macon’s return to the apartment and retrieval of the
firearms, implied that Brooks and Macon consented to the search of the apartment.
See United States v. Deutsch, 987 F.2d 878, 883 (2d Cir. 1993) (“[W]hen [the
defendant] advised the officers that his identification was inside the house and
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23-8041 United States v. Brooks
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 24th day of November, two thousand twenty-five.
PRESENT: RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges, CHRISTINA REISS, Judge. * _____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 23-8041
KHARISMA BROOKS,
* Chief Judge Christina C. Reiss, of the United States District Court for the District of Vermont, sitting by designation. Defendant-Appellant,
DARNELL MACON, SR.,
Defendant. _____________________________________
For Defendant-Appellant: GAUTAM RAO, (James I. Glasser, on the brief), Wiggin and Dana LLP, New Haven, CT.
For Appellee: ANDREW R. DURHAM, (Sandra S. Glover, on the brief), Assistant United States Attorneys, for Marc H. Silverman, Acting United States Attorney for the District of Connecticut, New Haven, CT.
Appeal from a judgment of the United States District Court for the District
of Connecticut (Jeffery A. Meyer, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the December 13, 2023 judgment of the
district court is AFFIRMED.
Kharisma Brooks appeals from a judgment of conviction following a jury
trial at which she was found guilty of aiding and abetting the unlawful possession
of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2),
and 2. On appeal, Brooks challenges the district court’s denial of her motion to
suppress evidence seized during a warrantless search of her apartment. We
2 assume the parties’ familiarity with the underlying facts, procedural history, and
issues on appeal, to which we refer only as necessary to explain our decision.
After receiving a tip that Brooks had purchased firearms on behalf of
Darnell Macon, Sr., whose prior felony convictions prohibited him from
possessing a firearm, agents of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (the “ATF”) and local police arrived at Brooks’s apartment complex,
where Macon also lived, to interview her about the purchases. Although the
officers did not have a warrant, they entered Brooks’s apartment after she invited
them inside. They eventually seized two firearms from the master bedroom
closet. Brooks was later charged with one count of making false statements
during the purchase of a firearm, and one count of aiding and abetting Macon’s
unlawful possession of a firearm.
Before trial, Brooks and Macon jointly moved to suppress the firearms
seized from the apartment. The district court held a two-day suppression
hearing, at which it heard testimony from the two ATF agents who conducted the
search and one of the police officers who was present at the scene. The district
court also considered the affidavits submitted by Brooks and Macon, which
3 contradicted the officers’ testimony. The district court ultimately credited the
officers’ version of events and denied the motion.
At the conclusion of her trial, the jury found Brooks guilty of aiding and
abetting Macon’s unlawful possession of a firearm but returned a not guilty
verdict on the charge of making false statements in connection with the purchase
of a firearm. The district court ultimately sentenced Brooks to twelve months and
one day of imprisonment, to be followed by a three-year term of supervised
release.
On appeal, Brooks challenges the district court’s denial of her motion to
suppress the firearms recovered from her apartment. In reviewing a district
court’s denial of a motion to suppress evidence, “we review a district court’s
conclusions of law de novo and its conclusions of fact for clear error.” United States
v. McKenzie, 13 F.4th 223, 231 (2d Cir. 2021). Whether law enforcement officers
obtained voluntary consent to conduct a search “is a question of fact to be
determined from the totality of all the circumstances.” Schneckloth v. Bustamonte,
412 U.S. 218, 227 (1973). As part of this inquiry, “we view the evidence in the light
most favorable to the government, and we give special deference to findings that
are based on determinations of witness credibility.” United States v. Delva, 858
4 F.3d 135, 148 (2d Cir. 2017) (alteration accepted and citation and internal quotation
marks omitted). On the record developed at the hearing, we see no basis to
disturb the district court’s conclusion that the officers obtained voluntary consent
before conducting the search of Brooks’s apartment.
At the suppression hearing, the ATF agents each testified that after they
approached Brooks’s apartment, one of the agents asked her outside if she
“[w]ould show [him] where the firearms are.” Sp. App’x at 2. According to the
officers, Brooks replied “[s]ure,” in a “very certain manner,” before walking back
into her apartment, aware that the agents had followed her inside. Id. Unable
to locate the firearms, Brooks returned to the front door and called out to Macon,
who had been outside in conversation with the two police officers, and asked him:
“[W]here are those guns? Can you find those guns?” Id. at 3. Macon then
entered the apartment, aware that the agents had followed him upstairs as he
retrieved two firearms from the bedroom. At no point did Brooks or Macon
object to the agents’ presence in the apartment or ask them to leave.
The district court was justified in relying on these affirmative statements
and actions to conclude that the agents reasonably believed they had consent to
enter the apartment. It is well settled that a suspect’s consent to a search does not
5 require any magic words. See United States v. Buettner-Janusch, 646 F.2d 759, 764
(2d Cir. 1981) (“[A] search may be lawful even if the person giving consent does
not recite the talismanic phrase: ‘You have my permission to search.’”). In
addition, “consent may be inferred from an individual’s words, gestures, or
conduct.” Id. Here, Brooks’s affirmative “sure” and calling out to Macon for
assistance, followed by Macon’s return to the apartment and retrieval of the
firearms, implied that Brooks and Macon consented to the search of the apartment.
See United States v. Deutsch, 987 F.2d 878, 883 (2d Cir. 1993) (“[W]hen [the
defendant] advised the officers that his identification was inside the house and
entered for the purpose of showing them his identification, he unmistakably
invited the officers inside.” (internal quotation marks omitted)).
Nothing in the record compels a finding that law enforcement officers
coerced Brooks and Macon into giving consent for the search. See United States v.
Garcia, 56 F.3d 418, 422 (2d Cir. 1995) (“So long as the police do not coerce consent,
a search conducted on the basis of consent is not an unreasonable search.”). At
no point during the agents’ entries into the apartment were either Brooks or Macon
threatened or restrained. In fact, Macon was allowed to run an errand during the
search with no resistance, and Brooks and Macon’s son engaged in friendly
6 conversations with the agents throughout the encounter. The mere fact that four
officers were present at the scene does not, alone, support a finding “that the
circumstances were inherently coercive.” United States v. Sanchez, 635 F.2d 47, 60
(2d Cir. 1980); see also United States v. Kon Yu-Leung, 910 F.2d 33, 41 (2d Cir. 1990)
(finding consent despite presence of six law-enforcement officers).
Similarly, the fact that the officers did not expressly inform Brooks of her
right to object to the search does not – without more – compel a finding that the
officers lacked consent. Though “knowledge of the right to refuse consent is one
factor to be taken into account, the government need not establish such knowledge
as the sine qua non of an effective consent.” Schneckloth, 412 U.S. at 227. We have
long recognized that “Fourth Amendment standards do not make it mandatory to
advise a suspect of [her] right to refuse consent to search.” United States v.
O’Brien, 926 F.3d 57, 77 (2d Cir. 2019). Given that voluntariness is to be
determined by the totality of all the circumstances, we cannot say that the district
7 court clearly erred in finding that Brooks voluntarily consented to the search of
her apartment. 1
* * *
We have considered Brooks’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
1 For the first time in her reply brief, Brooks argues that the ATF agents’ credibility, which the district court relied on in making its suppression ruling, had been undermined by their failure to produce certain discovery until close to the start of trial. But “arguments not made in an appellant's opening brief are [forfeited].” JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005). And while we have discretion to consider such arguments “if manifest injustice would otherwise result,” we see none in this case. Id. Brooks does not articulate how the officers’ delayed disclosures undermined the credibility of their testimony, given months earlier. And at no time did Brooks or Macon ask the district court to reconsider its suppression decision on the basis of that supposedly late disclosure.