United States v. Carter

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Carter No. 01-5338 ELECTRONIC CITATION: 2004 FED App. 0263P (6th Cir.) File Name: 04a0263p.06 Appellant. Charles P. Wisdom, Jr., Ron L. Walker, Jr., ASSISTANT UNITED STATES ATTORNEYS, Lexington, Kentucky, for Appellee. UNITED STATES COURT OF APPEALS BOGGS, C. J., delivered the opinion of the court, in which FOR THE SIXTH CIRCUIT KRUPANSKY, BATCHELDER, DAUGHTREY, _________________ GIBBONS, ROGERS, SUTTON, and COOK, JJ., joined. MARTIN, J. (pp. 10-13), delivered a separate dissenting UNITED STATES OF AMERICA , X opinion, in which MOORE, COLE, and CLAY, JJ., joined, Plaintiff-Appellee, - with MOORE, J. (pp. 14-18), also delivering a separate - dissenting opinion in which COLE and CLAY, JJ., joined. - No. 01-5338 GILMAN, J. (pp. 19-21), delivered a separate dissenting v. - opinion. > , _________________ SEAN CARTER , - Defendant-Appellant. - OPINION N _________________ Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. BOGGS, Chief Judge. Defendant Sean Carter pleaded No. 00-00058—Henry R. Wilhoit, Jr., District Judge. guilty to possession of crack cocaine with intent to distribute and to aiding and abetting his cohort Calvin Holliday in the Argued: June 11, 2003 same crime. The district court denied his motion to suppress evidence gained from a warrantless search by police of his Decided and Filed: August 6, 2004 hotel room, and he now challenges that ruling.

Before: BOGGS, Chief Judge; and MARTIN, A divided panel of this court previously affirmed the KRUPANSKY, BATCHELDER, DAUGHTREY, district court ruling, on the grounds that exigent MOORE, COLE, CLAY, GILMAN, GIBBONS, circumstances had justified the police officers’ entry into ROGERS, SUTTON, and COOK, Circuit Judges. Carter’s hotel room. We granted rehearing en banc to consider whether the circumstances truly qualified as exigent. _________________ 2003 U.S. App. LEXIS 3371. We need not reach that question because we now conclude that the district court COUNSEL correctly found that Carter consented to the officers’ entry.

ARGUED: Robert L. Abell, Lexington, Kentucky, for I Appellant. Charles P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee. The facts in this case appear in greater detail in the panel ON BRIEF: Robert L. Abell, Lexington, Kentucky, for decision at 315 F.3d 651. We repeat the salient points here.

1 No. 01-5338 United States v. Carter 3 4 United States v. Carter No. 01-5338

On March 21, 2000, in Lexington, Kentucky, a confidential A federal grand jury indicted Carter and Holliday on five informant informed law enforcement officials that Carter and counts of cocaine trafficking, in violation of 21 U.S.C. Holliday were in the process of leaving a “crack house” to § 841(a)(1). The district court conducted an evidentiary obtain more crack cocaine for sale. The confidential hearing and denied Carter’s motion to suppress the evidence informant provided a description and license plate number for found in the hotel room and on his person. At the hearing, the vehicle in which Carter and Holliday were traveling. Detective Hart testified in detail as to the circumstances of his entry into Room 119. The district court found the officers’ Law enforcement officers followed the vehicle to a Red entry justified by exigent circumstances, namely that once Roof Inn and observed Carter and Holliday enter Room 119. Carter was alerted to the presence of law enforcement They monitored the room until Holliday left it and returned to personnel he could have quickly disposed of the evidence; in his vehicle. When Holliday began to drive out of the parking the alternative, the court found that Carter had validly lot, the officers executed a traffic stop, detected the odor of consented to the officers’ entry into his hotel room. Carter marijuana emanating from the vehicle, and observed thereupon conditionally pled guilty, reserving the right to marijuana in the vehicle. They arrested Holliday and challenge his conviction based on the outcome of the searched his person and vehicle, finding seventeen grams of suppression hearing. Following sentencing, Carter timely crack cocaine. The validity of this arrest is not challenged. brought this appeal. The officers then returned to Room 119. They knocked on II the door four times, the first two times identifying themselves as housekeeping personnel. Carter finally opened the door, This court reviews “a district court’s factual findings and saw two officers wearing vests bearing the word regarding motions to suppress for clear error and its legal “POLICE” over civilian clothes, and a third in a police conclusions de novo.” United States v. Blair, 214 F.3d 690, uniform. None of the officers had their firearms drawn or 696 (6th Cir. 2000) (citation omitted). Where a district court otherwise behaved in a threatening manner. The officers denies that motion, we consider the evidence “in the light identified themselves. As they did so, they smelled marijuana most favorable to the government.” United States v. from inside the room and observed what appeared to be, and Wellman, 185 F.3d 651, 654-55 (6th Cir. 1999) (citation was, the stub of a mostly-consumed marijuana cigar, or omitted). “blunt,” in plain sight in an ashtray on a table adjacent to the door. It is well-settled that a person may waive his Fourth Amendment rights by consenting to a search. Davis v. United It is undisputed that at this point the officers asked Carter States, 328 U.S. 582, 593-94 (1946). Consent to a search if they could enter the hotel room and speak to him. In “may be in the form of words, gesture, or conduct.” United response, Carter stepped back and cleared a path for the States v. Griffin, 530 F.2d 739, 742 (7th Cir. 1976). In officers to enter. Detective Edward Hart immediately whatever form, consent has effect only if it is given freely and proceeded to the table, picked up the “blunt” stub, and voluntarily. Bumper v. North Carolina, 391 U.S. 543, 548 quickly confirmed by sight and scent his initial belief that it (1968). contained marijuana. The officers then placed Carter under arrest. Carter proved to be carrying twelve grams of crack Whether consent was free and voluntary so as to waive the cocaine and $ 1,749 in cash on his person. warrant requirement of the Fourth Amendment is “a question No. 01-5338 United States v. Carter 5 6 United States v. Carter No. 01-5338

of fact to be determined from the totality of all the A. Yes. I was going to seize that item. circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). Thus, our review is for clear error. United States We hold that the district court did not clearly err, v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc). Carter considering this testimony and all the circumstances, in did not testify at the suppression hearing, so our information finding that Carter’s actions as described constituted valid as to the exact sequence of events after Carter opened the consent. The investigating officers were instantly door to Room 119 comes by way of Detective Hart’s recognizable as policemen when Carter opened the door. testimony: They properly asked permission to enter, and Carter stepped back, letting them in. Any ordinary caller, under like Q. Okay. And again, you testify that Mr. Carter told you circumstances, would understand assent to have been given, all to come on in. You all just entered the room on and the police are not held to a higher standard in this regard your own; right? than an ordinary person. Robbins v. MacKenzie, 364 F.2d 45, 49 (1st Cir. 1966) (“An ordinary person who knocks on a A. We asked if we could come in and speak to him. At door and receives assent may properly consider himself an this time he moved away from the door and backed up. invited guest . . . . Similarly, the fourth amendment . . . does not require [a police officer] to be clairvoyant.”). Q. Did he say yes? A number of cases with superficially similar fact-patterns A. I don’t recall him saying yes. But as he was doing have held that the confrontation between police and suspect that, I went on to retrieve the suspected marijuana. was impermissibly tainted by “duress, coercion [or] trickery.” United States v. Jones, 641 F.2d 425, 429 (6th Cir. 1981) Q. Okay. So as he was standing, stepping back, you were (search not consented to, where police officers pounded and proceeding on in any way? kicked on door, barged in with firearms drawn before any words were exchanged, and claimed to have a warrant). Even A. Yes. Based on the odor that I smelled and what I was a spoken assent to search may be too ambiguous to establish observing, I went in to obtain [the blunt]. consent in certain circumstances. E.g., United States v. ***** ** Worley, 193 F.3d 380, 386 (6th Cir. 1999)(“you’ve got the badge, I guess you can [search]” is not consent where context Q. [Y]ou said that you are not certain if he responded was intimidating and defendant testified that he felt he had no either yes or no to Detective Carter’s asking about – choice.) But each such determination is “fact-specific,” and asking permission to come in? there is no “‘magic’ formula or equation” for determining consent in the abstract. Id. at 387. A. That’s correct. Here, the officers specifically asked if they could come in, Q. But regardless of what he said, you had already and Carter was not threatened, coerced, or tricked when he ascertained the odor of marijuana, and seeing this blunt chose to let the officers into his room. Nothing in the record that you were going to seize that and arrest him for indicates that he was unaware of his well-known right to possession of marijuana regardless? refuse entry, which he might have done simply by standing pat, saying “no,” or closing the door. His decision may have No. 01-5338 United States v. Carter 7 8 United States v. Carter No. 01-5338

been rash and ill-considered, but that does not make it invalid. implied consent”); Ballentine’s Law Dictionary (3d ed. 1969) The Fourth Amendment does not require police officers to (“acceptance, perhaps without approval . . . . Conduct from counsel a suspect to consider his options with care. which may be inferred assent with a consequent estoppel or quasi-estoppel” (citations omitted)). Here, the district judge Carter makes much of the fact that Hart apparently intended explicitly used “acquiescence” to mean “permission”—that is, in any event to enter the room to seize the blunt. What Hart consent. might have done had consent not been given is, of course, irrelevant. But Carter urges that consent was not given Fundamentally, Carter asks us to hold as a matter of law because Hart carried out his intent and barged ahead to seize that consent must be given verbally, perhaps by some “magic the blunt, and Carter merely jumped out of the way. This is words” formula. This we decline to do. Although a man’s one possible reading of Hart’s testimony, and such a scenario home is his castle, trumpets need not herald an invitation. would not amount to consent. See Robbins, 364 F.2d at 48 The police may be kept out or invited in as informally as any (stepping back in fear is not consent). But precisely because other guest. Carter invited the police in and cannot undo his testimony often becomes more ambiguous when reduced to act in court. toneless words on a page, we defer to the district court’s factual finding. See Anderson v. City of Bessemer City, 470 III U.S. 564, 574 (1985) (“[w]here there are two permissible views of the evidence, the factfinder’s choice between them Once invited into Carter’s hotel room to talk, Detective cannot be clearly erroneous”). Hart had the latitude of a guest in the room unless restricted by Carter himself. Thus, there was nothing improper in Carter further contends that the district court judge never Hart’s decision to take the few steps to the table which, he actually found that consent was given, so there is no occasion testified, was “near the door, between the door and the wall,” for deferential review. Carter relies on the judge’s exact and visible even from outside the room. Once he had arrived words at the suppression hearing: “I believe the officer has there, the smell and appearance of the blunt, coupled with the testified without contradiction here now that he has knowledge that Holliday had confessed to having smoked permission to enter the room. And the defendant did not say marijuana a short time ago in that room, “warrant[ed] a man anything but stepped back, which indicates to the Court that of reasonable caution in the belief” that it was a blunt and not there was at least acquiescence.” Focusing on the word a legal cigar filled with tobacco. Texas v. Brown, 460 U.S. “acquiescence,” Carter reminds us that consent will not be 730, 742 (1983) (quoting Carroll v. United States, 267 U.S. found upon mere “acquiescence to a claim of lawful 132, 162 (1925)). The “plain view” exception to the warrant authority.” Bumper, 391 U.S. at 548-49 (1968). requirement applies: the blunt was in plain view; there was probable cause to consider it incriminating on its face; Hart Carter’s verbal quibble is bootless. Bumper dealt with was lawfully in position to see it; and Hart had a lawful right acquiescence to the execution of an improperly-issued of access to the item. United States v. Calloway, 116 F.3d warrant. Ibid. The officers here made no such overpowering 1129, 1133 (6th Cir. 1997). claim of authority, in the face of which any consent would have been mere acknowledgment. “Acquiescence” As some of our colleagues note, Hart did testify that a commonly indicates assent, however grudging. Black’s Law blunt closely resembles an ordinary cigar. But this does not Dictionary, 23 (7th ed. 1999)(“tacit or passive acceptance; mean, contrary to Judge Martin’s dissent (page 12), that “the No. 01-5338 United States v. Carter 9 10 United States v. Carter No. 01-5338

fact that the cigar was a ‘blunt’ was not immediately ______________ incriminating.” If Hart was reasonable in believing the object was a blunt based on what he lawfully observed, then it was DISSENT immediately incriminating. United States v. McLevain, 310 ______________ F.3d 434, 441 (6th Cir. 2002)(“marijuana . . . on a table in plain view” would obviously be immediately incriminating). BOYCE F. MARTIN, JR., Circuit Judge, dissenting. Of A “blunt” is a marijuana-filled cigar. Hart testified that this the various justifications that have been used to sanction the particular ‘cigar’ smelled like burnt marijuana, and that as an warrantless search in this case, in my view none satisfies experienced drug-interdiction officer, he was very familiar constitutional standards. The district court found that Sean with that scent. See Brown, 460 U.S. at 743 (1983) (officer Carter consented to the search of his room and person. On who used his “trained eye” to identify dual-use drug appeal, a divided panel did not reach the issue of consent, paraphernalia had probable cause). As he got closer to the finding instead that exigent circumstances justified the search. ‘cigar,’ he testified, the scent got stronger, and when he The majority now chooses not to reach the issue of exigent looked closely at the stubbed-out end, he could see “the green circumstances, and upholds the district court’s decision on yet leafy substance in the end.” See id. at 740 (officer whose another alternative basis. From the hat of uncertain suspicions are aroused may shift angle of view and shine light jurisprudence, the majority hand-picks anomalous on suspect objects to see them better); compare Arizona v. justifications to rationalize unlawful police action in Hicks, 480 U.S. 321, 325 (1987) (officer relying on plain retrospect, concluding that Carter may not have consented to view doctrine may not “expose[] to view concealed portions” the search, but he did consent to the officers’ entry, and, of homeowner’s property). Unlike the officers in McLevain, because marijuana was in “plain view,” the subsequent search Hart did not have to conduct “further investigation” (e.g., of his room and person was valid. Of all of the proffered chemical testing of commonplace objects). McLevain, 310 justifications for the police action in this case, the majority’s F.3d at 443. He had probable cause “on the facts then is particularly repugnant, and I necessarily dissent. available.” United States v. Beal, 810 F.2d 574, 577 (6th Cir. 1987). On the night that Carter was arrested, the officers were pursuing a confidential informant’s tip that Carter and his Carter does not argue that there was anything improper friend, Calvin Holliday, were going to a motel to resupply about his consequent arrest or the search of his person their crack cocaine inventory. While surveilling the motel for incident to that arrest, except insofar as the further search over an hour and a half, the officers had time to summon a would be the ‘fruit of the poisonous tree’ had the initial narcotics detection dog and handler to the scene, but failed to seizure been improper. Because the initial seizure was obtain a warrant to search Carter’s motel room. In the proper, the tree is untainted, and in the absence of any other absence of any urgency, the police had additional time to reason to suppress the resulting evidence, it was properly obtain a search warrant after they stopped Holliday, who, in admitted. combination with the informant’s tip, provided the officers with probable cause to believe that they would find more IV contraband in the motel room. Though they had plenty of time to obtain a warrant, the officers proceeded inside without For these reasons, we AFFIRM the order of the district one. court. No. 01-5338 United States v. Carter 11 12 United States v. Carter No. 01-5338

Arriving at Carter’s motel room door, they knocked twice met the stringent requirements for consent that we have and deceptively called out that they were motel housekeeping articulated in our Fourth Amendment jurisprudence. personnel. After two more knocks, Carter opened the door. Detective Edward Hart testified that at that moment, he Supplementing its conclusion that Carter consented to the spotted a cigar on a table inside and noticed that Carter was officers’ entry, the majority utilizes the “plain view” there alone. Accompanied by officers who were wearing exception to the Fourth Amendment’s warrant requirement to official identification and were presumably armed, Detective legitimize the warrantless search. The majority’s holding is Hart requested permission to enter the room. Upon this show wholly indefensible. This Court has explained that to invoke of force, Carter stepped back, but did not respond. In the the plain view doctrine, the evidence must be “(1) in plain same moment, Detective Hart walked past Carter to examine view; (2) of a character that is immediately incriminating; the cigar and determined that it was a “blunt”—a hollowed- (3) viewed by an officer lawfully located in a place from out cigar filled with marijuana. where the object can be seen; and (4) seized by an officer who has a lawful right of access to the object itself.” United States The trial court found that Carter voluntarily “acquiesced” v. Roark, 36 F.3d 14, 18 (6th Cir. 1994) (citing Horton v. to the search by “stepping back” from the door upon California, 496 U.S. 128 (1990)). See also United States v. Detective Hart’s request to enter, and that Carter’s Morgan, 743 F.2d 1158, 1167 (6th Cir. 1984). The “plain “acquiescence” signaled consent. The majority partially view” exception is inapplicable in this case because the fact agrees, finding that Carter’s “acquiescence” signaled his that the cigar was a “blunt” was not immediately consent to the officer’s entry, though not necessarily to the incriminating. See United States v. McLevain, 310 F.3d 434, search. In that sense, the majority concludes, Carter “invited” 443 (6th Cir. 2002) (“[W]hen an item appears suspicious to an the officer in as he would “any other guest.” This conclusion officer but further investigation is required to establish lacks any foundation in fact or law. A police officer is not probable cause as to its association with criminal activity, the “any other guest.” Consent to entry in this case must satisfy item is not immediately incriminating.”) (citation omitted). the requirements of the Fourth Amendment. Detective Hart’s own testimony supports this conclusion. We studied those requirements in United States v. Worley, Hart explained: “From the door frame I could look in, and 193 F.3d 380, 386 (6th Cir. 1999), where we held that consent there was a small table . . . between the door and the wall. On exists only when it is “unequivocally, specifically, and that I saw a--what I thought was a blunt--it’s a hollowed out intelligently given, uncontaminated by any duress and cigar that marijuana is then put into.” Detective Hart later coercion.” Consent is a “free and voluntary” statement of acknowledged, however, that whether a cigar is truly a acceptance, and not “merely a response conveying an “blunt” can only be verified by close examination. This expression of futility in resistance to authority or acquiescing exchange followed: in the officers’ request.” Id. at 386. Carter’s motion of “stepping back” upon a show of police force hardly signals an Q. From the outside it looks like a regular cigar? unequivocally free or voluntary response. Rather than an invitation, Carter’s “stepping back” was more likely futile A. Yes. resignation or an effort to get out of harm’s way. On this record I simply cannot conclude that Carter’s “acquiescence” No. 01-5338 United States v. Carter 13 14 United States v. Carter No. 01-5338

Q. Okay. So if I am looking across--if one was sitting on _______________ the table over there, it might very well be filled with marijuana, but it would look like a regular cigar? DISSENT _______________ A. That’s correct. KAREN NELSON MOORE, Circuit Judge, dissenting. I From this testimony, it is clear that the fact that the cigar was join fully in Judge Martin’s persuasive dissent. I separately a “blunt” was not immediately apparent; rather, that fact was and respectfully dissent from the majority because the only discoverable upon closer inspection. Because the item government has failed to prove by a preponderance of the that Detective Hart observed was not immediately evidence that Sean Carter (“Carter”) “unequivocally” incriminating from where he stood, the “plain view” consented to the police officers’ entry into his hotel room. I exception to the warrant requirement cannot apply. concur neither with the majority’s quiet adoption of a principle that implied consent will suffice to justify a The United States has established neither consent nor the warrantless entry nor with its application of this standard to applicability of the “plain view” exception. And certainly the entry of Carter’s hotel room. Such a holding there were no exigent circumstances—the officers had plenty unnecessarily upends the precedent of this circuit in a manner of time to secure a warrant after they stopped Calvin that contradicts the law established by the United States Holliday. Still, the majority inexplicably makes a determined Supreme Court. effort to legalize unlawful police conduct and lead us through the gates of legitimacy, down the steep slope of retrospective One must begin with the constitutional imperative against rationalization, to where, even in this day of technological warrantless entries ensconced in the Fourth Amendment. sophistication, we carelessly allow the expansion of police Because “[t]he right of the people to be secure . . . against powers beyond what the Constitution allows. See United unreasonable searches and seizures[] shall not be violated,” States v. Carpenter, 360 F.3d 591, 604 (6th Cir. 2004). I U.S. Const. Amend. IV, warrantless searches and seizures are would suppress and therefore I dissent. “presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980); see United States v. Haddix, 239 F.3d 766, 767 (6th Cir. 2001) (“As a practical matter, [the Fourth Amendment] normally requires the police to have a warrant whenever their conduct compromises an individual’s privacy in his or her personal affairs.”). “[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton, 445 U.S. at 585 (quotation and citation omitted). Nonetheless, consent is “one of the specifically established exceptions to the requirements of both a warrant and probable cause.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Given that the consent exception is “jealously and carefully drawn,” Jones v. United States, 357 U.S. 493, 499 (1958), it is no surprise that, “[w]hen a prosecutor seeks to rely upon consent to justify the lawfulness No. 01-5338 United States v. Carter 15 16 United States v. Carter No. 01-5338

of a search, he has the burden of proving that the consent was, synonymous with “implied consent,” Maj. Op. at 7 (citing in fact, freely and voluntarily given.” Bumper v. North Black’s Law Dictionary 23 (7th ed. 1999)), and it is well- Carolina, 391 U.S. 543, 548 (1968) (emphasis added). “This settled that acquiescence to authority is not enough to burden cannot be discharged by showing no more than demonstrate consent. Bumper, 391 U.S. at 548-49. acquiescence to a claim of lawful authority.” Id. at 548-549 Consequently, we have required that consent be unequivocal, (emphasis added).1 The strong aversion to warrantless entries specific, and intelligent. United States v. Haynes, 301 F.3d has led us to hold that “not any type of consent will suffice, 669, 682 (6th Cir. 2002); Worley, 193 F.3d at 386; Tillman, but instead, only consent that is ‘unequivocally, specifically, 963 F.2d at 143. We have not been alone. See United States and intelligently given, uncontaminated by any duress and v. Gonzalez, 71 F.3d 819, 830 (11th Cir. 1996); United States coercion.’” United States v. Worley, 193 F.3d 380, 386 (6th v. Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1989). This is not to Cir. 1999) (quoting United States v. Tillman, 963 F.2d 137, say that unequivocal consent need always be verbally given 143 (6th Cir. 1992)).2 or formally delivered. A nod, a terse “okay” in response to a request to enter, or a hand gesture, may constitute Applying the above principles, I am left with the definite unequivocal consent depending on the particular and firm conviction that the district court reached the wrong circumstances. result because the government failed to prove by a preponderance of the evidence that Carter consented to the Carter took no such action, however, and his recession into officers’ entry. We have never previously established that the room did not signal an unequivocal consent to a implied consent justifies an otherwise illegal warrantless warrantless entry. The police knocked loudly four times, entry. As even the majority recognizes, “acquiescence” is identifying themselves the first two times as housekeeping staff. Joint Appendix (“J.A.”) at 74 (Det. Hart Test.). When Carter opened the door, he saw three police officers, two 1 The test for consent established in Bumper v. North Carolina, 391 wearing “POLICE” vests and one in full uniform. The U.S. 543 (1968), is certainly germ ane he re. The Suprem e Co urt in officers identified themselves and asked to enter. Detective Bumper established a general test that when a prosecutor relies on consent Hart (“Hart”) testified that Carter “moved away from the door to justify a search, the burden to pro ve that such co nsent was 1) actually and backed up,” J.A. at 76, but Hart never stated that Carter given and 2 ) freely and voluntarily given “cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” Id. “cleared a path for the officers to enter,” as the majority at 548-49. Tha t Bum per dealt primarily with the sec ond part of the depicts. Maj. Op. at 2. Furthermore, Hart made clear that inquiry — whether consent was voluntary when law enforcement officers regardless of whether Carter gave consent, the officers asserted that they possessed a warrant— do es not negate the applicability planned to enter the hotel room and seize the “blunt” once of the Supreme Court’s general statement about acquiescence to cases they had smelled the marijuana. J.A. at 79. assessing the threshold question of whether consent was even given in the first place. The only possible signal of consent is Carter’s act of 2 There is a distinction between consent to entry and consent to search stepping back into the hotel room. Carter did not say in the sense that when a de fendant con sents to the entry of police officers, anything while he retreated, such as “okay” or “fine,” after the he or she does not automa tically consent to a search. See United States police asked to enter the room. See United States v. Garcia, v. Ivy, 165 F.3d 39 7, 401-04 (6th Cir. 1998) (analyzing first whether 997 F.2d 1273, 1281 (9th Cir. 1993) (holding that consent consent to entry was given before assessing whethe r consent to search was existed when defendant said “okay,” nodded, and stepped given and was voluntary). We apply the same standards for consent when analyzing either issue. Id. at 401-02. back in response to officers’ request to enter). Carter did not No. 01-5338 United States v. Carter 17 18 United States v. Carter No. 01-5338

nod or gesture so as to indicate an affirmative response to at least acquiescence.” J.A. at 82. The district court’s belief their request. Moreover, this is not a situation in which Carter that acquiescence is enough highlights its error. Because the refused entry to the officers on one occasion but then stepped Supreme Court has ruled that acquiescence does not equal back after the officers made a second request to enter, such consent, the district court clearly erred by holding that the that his silence on the second attempt could constitute consent officers were justified in entering the room on the basis that in juxtaposition with his first response. See United States v. “there was at least acquiescence.” Griffin, 530 F.2d 739, 743 (7th Cir. 1976) (holding that when defendant had first responded “no” to a request to enter, Without more, the government has failed to meet its burden slamming his door in the officers’ faces, but then had stepped of proving consent. The inability to demonstrate consent back and left his door open without explicitly refusing to precludes the need to assess whether such consent was grant entry after the officers repeated the request several voluntary. Without voluntary consent, the warrantless entry minutes later, the defendant’s actions constituted consent and search of Carter’s room was illegal, and the fruits of that because of the disparity between the defendant’s two different search are tainted. Accordingly, I would reverse the district reactions). Instead, Carter simply stepped back and did not court. say a word to the officers, one of whom testified that he would have entered the room to seize the blunt no matter Carter’s response. Cf. United States v. Albrektsen, 151 F.3d 951, 955 (9th Cir. 1998) (ruling that defendant did not consent when both the officers and the defendant recalled that “entry was going to made with or without permission,” and the defendant stepped back from the door because he felt that he would have been knocked down if he did not move). Carter’s response cannot be considered consent; there was no affirmative act, let alone an unequivocal one. Carter’s reaction to the officers’ request can only be considered acquiescent behavior, which the Supreme Court has distinguished from valid consent. I cannot accept the majority’s characterization of Carter’s citation to established Supreme Court precedent as a “verbal quibble” that is “bootless.” Maj. Op. at 7. A focus on the word “acquiescence” is entirely proper because the Supreme Court has explicitly held that acquiescence to a claim of lawful authority, whether overpowering or not, is not sufficient to satisfy the government’s burden to prove consent. Bumper, 391 U.S. at 548-49. Furthermore, it is not only Carter who focuses on the term “acquiescence”; in ruling that Carter consented to the entry, the district court held that Carter’s motion of stepping back “indicates to the Court that there was No. 01-5338 United States v. Carter 19 20 United States v. Carter No. 01-5338

________________ Bumper is that “[w]hen a law enforcement officer claims authority to search a home under a warrant, he announces in DISSENT effect that the occupant has no right to resist the search. The ________________ situation is instinct with coercion . . . . Where there is coercion there cannot be consent.” Id. at 548. In the present RONALD LEE GILMAN, Circuit Judge, dissenting. case, as the majority correctly observes, the police officers Although I agree with the conclusion of the majority “made no such overpowering claim of authority.” I am regarding Carter’s implied consent to the entry by the police therefore of the opinion that Judge Moore’s reliance on officers, I share Judge Martin’s view that the seizure of the Bumper’s language, completely divorced from its factual blunt in Carter’s hotel room cannot be justified under the context, is misplaced as applied to the facts before us. “plain view” exception to the prohibition against a warrantless search. The very fact that the majority opinion of Despite my agreement with the above portions of the Chief Judge Boggs and the dissenting opinions of Judges majority opinion, I am persuaded that the seizure of the blunt Martin and Moore can persuasively reach opposite from Carter’s hotel room cannot be justified under the “plain conclusions about whether Carter gave implied consent to the view” exception for all of the reasons set forth in Judge officers’ entry demonstrates to me that the district court’s Martin’s dissent. The majority, in reaching the opposite finding of consent was not “clearly erroneous.” As the conclusion, relies on United States v. Calloway, 116 F.3d majority points out, it is well-settled that “[w]here there are 1129, 1133 (6th Cir. 1997), to support its argument that the two permissible views of the evidence, the district court’s plain view exception applies because “the blunt was in plain conclusions cannot be clearly erroneous.” United States v. view; there was probable cause to consider it incriminating on Worley, 193 F.3d 380, 384 (6th Cir. 1999) (quoting Anderson its face; Hart was lawfully in position to see it; and Hart had v. City of Bessemer City, 470 U.S. 564, 573 (1985)). Because a lawful right of access to the item.” I respectfully disagree “[i]t is not enough that this Court might give the facts another that the facts of this case satisfy the Calloway factors. In construction [or] resolve the ambiguities differently. . . ,” particular, I do not believe that there was probable cause to West v. Fred Wright Constr. Co., 756 F.2d 31, 34 (6th Cir. consider the blunt “incriminating on its face” or that Hart had 1985), I believe that we should give deference to the a “lawful right of access to the item.” conclusion of the district court regarding Carter’s consent to entry by the police. The most relevant case on point, in fact, is not Calloway, but United States v. McLevain, 310 F.3d 434 (6th Cir. 2002). I also agree with the majority that the holding in Bumper v. McLevain is mistakenly relied on by the majority for the North Carolina, 391 U.S. 543 (1968), is not applicable to the proposition that the blunt in question was immediately case before us. Judge Moore’s dissent emphasizes that, in incriminating. But the actual facts in McLevain involved a light of Bumper, the government’s burden to show that narcotics detective who seized certain items—a cut cigarette consent was freely and voluntarily given “cannot be filter, a prescription bottle with fluid, a spoon, and a twist discharged by showing no more than acquiescence to a claim tie—that were, in his experience, commonly associated with of lawful authority.” Id. at 548-49. But Bumper dealt with the use of methamphetamine. Yet this court held that “[t]he the defendant’s grandmother who, informed by police officers connection between these items and illegal activities . . . is not that they possessed a valid search warrant for her home, enough to render these items intrinsically incriminating.” Id. allowed them to come in. The critical point to take from at 442 (emphasis added). No. 01-5338 United States v. Carter 21

In view of the ruling that the McLevain facts were insufficient to satisfy the “plain view” exception to the prohibition against a warrantless search, how can the object that Hart conceded looked like a regular cigar from where he initially stood be considered “incriminating on its face”? There is no way. I would therefore suppress the seizure of the blunt and thus REVERSE the judgment of the district court.