NOT RECOMMENDED FOR PUBLICATION File Name: 20a0615n.06
No. 19-5951
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) FILED ) Oct 30, 2020 Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT JESSE GRAY, ) COURT FOR THE EASTERN ) DISTRICT OF KENTUCKY Defendant-Appellant. )
Before: STRANCH, BUSH, and LARSEN, Circuit Judges.
PER CURIAM. Jesse Gray appeals his conviction for possessing with intent to distribute
forty or more grams of fentanyl and possessing four firearms in furtherance of the drug offense.
He argues that the district court improperly denied his motion to suppress incriminating evidence
obtained from searches of an apartment he shared with Lawanna Hudson, his girlfriend and a co-
defendant. For the reasons outlined below, we hold that (1) based on Hudson’s consent to the
initial warrantless searches of the apartment, those searches did not violate Gray’s Fourth
Amendment rights; and (2) the evidence obtained from the warrantless searches properly served
as the basis for a valid warrant obtained for the final search of the apartment. Therefore, we
AFFIRM.
I.
This case arises from a domestic violence call made by Hudson to the police on June 15,
2018. She called to report an argument with Gray that had turned violent in their shared apartment No. 19-5951, United States v. Jesse Gray
in Lexington, Kentucky. There, the responding officers encountered Gray on the stairs outside of
the apartment. The officers then knocked on the front door of the apartment. Hudson, surrounded
by her small children, opened the door from inside the apartment and invited the officers in.
Once the officers had entered her home, Hudson offered them details regarding the
domestic violence. According to Hudson, it had begun after she confronted Gray for slashing her
tires. Hudson stepped toward the kitchen and gestured for the officers to follow as she described
her argument with Gray. Pointing toward the bedroom, Hudson recounted that Gray had taken a
nightstand from the bedroom and smashed it on the kitchen floor. He had also, according to
Hudson, pulled her hair and thrown her to the ground. Hudson told officers that she had responded
to Gray by “bust[ing] up” a TV in the room. R. 28-1, 01:10–01:30 (noting that it was damaged
with her key). The broken nightstand was visible on the kitchen floor next to an open bedroom
door.
Officer Christopher Flannery, one of the police officers at the scene, walked over to the
broken nightstand and into the open bedroom from which it came. He surveyed the bedroom with
a flashlight for approximately twenty seconds while Hudson, who had followed him, retrieved her
identification card and explained which of the various belongings scattered across the room
belonged to her and which belonged to Gray. A small sack of marijuana was visible on the bed,
and bags containing pills and marijuana stems were nearby on the floor. Hudson told Flannery
that she had been “smoking weed” earlier. R. 65 at PageID 269. Flannery then followed Hudson
back to the kitchen.
Based on Hudson’s statements and the damage visible in the apartment, the officers
arrested Gray. They discovered more marijuana and a substantial amount of cash on Gray’s
2 No. 19-5951, United States v. Jesse Gray
person. Flannery then returned to the previously searched bedroom, where he spent roughly fifteen
seconds looking again at the bags containing pills and marijuana stems.
Flannery next came back to the kitchen and asked Hudson for her consent to search the
entirety of the bedroom. Hudson replied, “Go ahead. I don’t have [anything] back there.” R. 28-
6, 00:24–00:26. Flannery then went outside the apartment and asked Gray for consent to search
the room, to which Gray stated, “this is [Hudson’s] house.” R. 28-8, 00:04–00:06. When Flannery
again asked Gray whether he “ha[d] a problem” with the officers searching the bedroom, Gray
responded, “No.” R. 28-8, 00:09–00:12; see also Appellant Br. at 9–10.
The officers’ search of the bedroom revealed a magnetic lock box attached to a metal bed
frame, which contained approximately 200 grams of a heroin and fentanyl mixture. In addition,
the officers seized a kilo press commonly used by drug traffickers, acetone (also commonly used
in preparing drugs), a safe, baggies, and a loaded firearm.
In reliance on this seized evidence, officers obtained a warrant to search the rest of
Hudson’s apartment and the safe. Officer Danny Page, who arrived after Officer Flannery had
retrieved the marijuana and placed it on the kitchen table, prepared the search warrant affidavit.
In the affidavit, Officer Page erroneously stated that the marijuana had been found on the kitchen
table, as opposed to in the bedroom. During the ensuing search pursuant to the search warrant, the
police found multiple loaded firearms, cocaine, cash, and marijuana inside the safe. Officers also
found pawn shop receipts linking Gray to the items in the safe.
A federal grand jury then indicted Gray and Hudson for possession with intent to distribute
forty grams or more of a substance containing a detectable amount of fentanyl (Count 1) and
possession of a firearm in furtherance of a drug trafficking crime (Counts 2 and 4). Gray was also
charged with being a felon in possession of a firearm (Count 3).
3 No. 19-5951, United States v. Jesse Gray
Gray and Hudson filed a joint motion to suppress the evidence obtained at the apartment.
The district court denied the motion. Subsequently, Gray pleaded guilty to possessing with intent
to distribute forty or more grams of fentanyl and possessing four firearms in furtherance of the
drug offense. The terms of the plea deal reserved Gray’s right to appeal the district court’s denial
of his motion to suppress. The district court then sentenced Gray to a 132-month term of
imprisonment. Gray timely filed a notice of appeal.
II.
On appeal, Gray challenges the district court’s denial of his motion to suppress the evidence
that officers seized from the apartment. Gray’s argument implicates four discrete searches of the
bedroom: (i) Flannery’s first search, shortly after entering the apartment; (ii) Flannery’s second
search, after Gray’s arrest; (iii) Flannery’s third search, after explicitly asking Hudson and Gray
for consent; and (iv) the fourth search, pursuant to the search warrant. Gray argues that the first
three searches were unlawful and, consequently, that the evidence uncovered from execution of
the search warrant must be suppressed because the warrant was obtained with information derived
from those earlier unconstitutional searches.
“When reviewing the denial of a motion to suppress, we review the district court’s legal
conclusions de novo and the factual findings for clear error.” United States v. Taylor, 248 F.3d
506, 511 (6th Cir. 2001) (citing United States v. Bates, 84 F.3d 790, 794 (6th Cir. 1996)). “When
a district court has denied a motion to suppress, [this court] consider[s] the evidence in the light
most favorable to the government” and “will overturn the district court’s factual findings only if
we have the definite and firm conviction that a mistake has been committed.” United States v.
Long, 464 F.3d 569, 572 (6th Cir. 2006) (internal quotation marks and citations omitted).
4 No. 19-5951, United States v. Jesse Gray
A. The Warrantless Searches
We first address the searches of the apartment conducted by the officers before they
obtained the warrant. As we explain below, the constitutionality of these searches is established
by undisputed facts that demonstrate that Hudson’s consent led to the chain of events in those
searches.
We reach our holding based on well-established law in this area. The Fourth Amendment,
of course, “guarantees the right to be free from unreasonable searches and seizures.” Taylor, 248
F.3d at 511. Among the grounds to deem a search and seizure constitutionally reasonable are if
they are “made pursuant to a warrant,” id., or if the person whose property is to be searched gives
consent, United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc).
“Consent to a search may be in the form of words, gesture, or conduct.” Id. (internal
quotation marks and citation omitted). In order to justify a search by consent, “[t]he government
bears the burden of demonstrating by a preponderance of the evidence, through ‘clear and positive
testimony,’ that the consent was voluntary, unequivocal, specific, intelligently given, and
uncontaminated by any duress and coercion.’” United States v. Alexander, 954 F.3d 910, 918 (6th
Cir. 2020) (quoting United States v. Canipe, 569 F.3d 597, 602 (6th Cir. 2009)); see also Bumper
v. North Carolina, 391 U.S. 543, 548 (1968).
Consent can come from anyone with “common authority” over the property. See United
States v. Moore, 917 F.2d 215, 223 (6th Cir. 1990). “This is so, in part, because ‘a joint occupant
assumes the risk of his co-occupant exposing their common private areas to a search.’” United
States v. Beasley, 199 F. App’x 418, 424 (6th Cir. 2006) (quoting Moore, 917 F.2d at 223).
Nevertheless, “consent of one resident cannot override the express objection to search or entry by
5 No. 19-5951, United States v. Jesse Gray
another, physically-present resident.” Id. at 424 n.1 (citing Georgia v. Randolph, 547 U.S. 103,
106 (2006)).
1. The First and Second Searches
The district court held that the first and second warrantless searches of the bedroom were
constitutional as protective sweeps. We agree that those searches were constitutional but affirm
on a different ground—namely, that Hudson’s consent to Flannery’s initial search of the bedroom
is a sufficient basis on which to uphold both searches. Therefore, we need not address whether
these searches qualify as protective sweeps. This court is “free to affirm . . . on any basis supported
by the record . . . especially . . . where the underlying facts are undisputed.” Angel v. Kentucky,
314 F.3d 262, 264 (6th Cir. 2002). Here, undisputed facts establish that Hudson gave consent that
led to the first and second searches.
“Whether consent was free and voluntary so as to waive the warrant requirement of the
Fourth Amendment is ‘a question of fact to be determined from the totality of all the
circumstances.’” Carter, 378 F.3d at 587 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227
(1973)). Furthermore, “the scope of the consent given determines the permissible scope of the
search.” United States v. Garrido-Santana, 360 F.3d 565, 575 (6th Cir. 2004) (citation omitted).
The standard for measuring the scope of a person’s consent is objective reasonableness. Florida
v. Jimeno, 500 U.S. 248, 251 (1991). Considering Hudson’s “words, gesture[s], [and] conduct,”
Carter, 378 F.3d at 587, we ask how “the typical reasonable person [would] have
understood . . . the exchange” between her and the officers, United States v. Lucas, 640 F.3d 168,
175 (6th Cir. 2011) (quoting Jimeno, 500 U.S. at 251).
A reasonable person interprets the scope of a consensual search in light of its purpose. See
Garrido-Santana, 360 F.3d at 576 (“Generally, the expressed object of the search defines the scope
6 No. 19-5951, United States v. Jesse Gray
of that search.”). Thus, in Garrido-Santana, we held that the insertion of a fiber optic scope into
a car’s gas tank was within the scope of the driver’s consent to search the car for drugs. Id. at 570,
576. Because the purpose of the search was to look for drugs, we concluded that a reasonable
person would have understood the scope of the driver’s consent to include “any container within
th[e] vehicle that might have held illegal contraband,” even the gas tank. Id. at 576; see also Lucas,
640 F.3d at 175–78 (holding that the district court did not clearly err by concluding that the search
of a computer was within the scope of a consent to search the house for “narcotics-related
evidence”).
Here, the purpose of the officers’ entry into the apartment was the corroboration of
Hudson’s allegations against Gray. Hudson had called the police to report the altercation with
Gray. When the officers arrived, she immediately invited them inside and began to describe the
incident. She motioned the officers into the kitchen, pointing to debris from the altercation on the
floor. That debris included a broken nightstand lying in front of an open bedroom door. Hudson
then explained that Gray had taken the nightstand from the bedroom before smashing it on the
floor and that a TV was “bust[ed] up” in the bedroom. A reasonable person would have understood
Hudson’s consent as permitting the officers to survey the bedroom where part of the alleged
altercation took place. See Garrido-Santana, 360 F.3d at 576.
Hudson’s subsequent lack of objection to Flannery’s entry into the bedroom confirms that
conclusion. Although “mere acquiescence does not suffice to establish free and voluntary
consent,” United States v. Moon, 513 F.3d 527, 538 (6th Cir. 2008), we have repeatedly considered
the absence of any objection when measuring the scope of an otherwise valid consent. See Lucas,
640 F.3d at 178 (“Lucas did not at any time object to the computer search that was taking place in
his presence, nor did he withdraw his consent to search.”); Canipe, 569 F.3d at 606 (“During the
7 No. 19-5951, United States v. Jesse Gray
search, Canipe made no attempt to revoke or delimit the scope of his omnibus consent . . . .”);
Garrido-Santana, 360 F.3d at 576 (“We note that, although defendant had the opportunity to do
so, he never objected to the officers’ search of the gas tank and, thus, neither clarified that the
scope of his sweeping consent excluded such a search nor revoked his consent.”).1 Here, after
explaining that part of the altercation took place in the bedroom and gesturing toward the broken
nightstand on the floor next to the open bedroom door, Hudson followed Flannery into the bedroom
and made no objection as the officer surveyed the room to corroborate her story. A reasonable
person observing this encounter would have concluded that Flannery acted within the scope of
Hudson’s consent. See Garrido-Santana, 360 F.3d at 576.
This is not to say that officers may search the entirety of a house or apartment whenever
they receive consent to come inside. The scope of a person’s consent depends on the context of
the entire situation. See Lucas, 640 F.3d at 178. Thus, generally, “consent to enter one’s threshold
for the limited purpose of talking about an investigation does not include permission to enter a
bedroom . . . .” Mejia, 953 F.2d at 466. But where, as here, officers receive “subsequent implied
consent” to carry their investigation further into the apartment, entry into a bedroom is permissible.
See id. (“However, once the officers were in the house, Cajigas gave a subsequent implied consent
to let them enter the bedroom by not objecting when the officers followed her into the bedroom.”).
Here, Flannery’s first search of the bedroom did not exceed the scope of the express and implied
1 Other circuits have applied similar reasoning. See, e.g., United States v. Davis, 60 F.3d 825 (Table), 1995 WL 391985, at *3 (4th Cir. 1995) (“Afolabi let the officials into the apartment, walked into the living room/dining area, continued into the bedroom, and did not object as the officials followed him.”); United States v. Mejia, 953 F.2d 461, 466 (9th Cir. 1991), abrogated on other grounds by Koon v. United States, 518 U.S. 81 (1996) (“Presumably, a reasonable person who objected to the officers’ following her would have said so.”); United States v. Pena, 920 F.2d 1509, 1515 (10th Cir. 1990) (“[F]ailure to object to the continuation of the search under these circumstances may be considered an indication that the search was within the scope of the consent.” (citation omitted)). 8 No. 19-5951, United States v. Jesse Gray
consent Hudson provided when she invited the officers into the apartment, described the incident,
gestured to the officers to survey the damage, and followed Flannery into the bedroom without
objecting as he sought to corroborate her allegations. Accordingly, based on Hudson’s consent,
we AFFIRM the district court’s holding that the first search was constitutional.
Our decision with respect to the first search also disposes of Gray’s argument with respect
to the second search. Flannery returned to the bedroom intending to seize the bags of pills and
marijuana stems after seeing those items in plain view during the first consensual search, but he
decided not to seize anything at that time. The second search accordingly yielded no information
or evidence that Flannery had not already gleaned. Thus, we need not address whether the second
search was constitutional based on consent or some other ground, because “[e]vidence ‘will not be
excluded . . . unless the illegality is at least the “but for” cause of the discovery of the evidence,’
unless[,] that is[,] ‘the challenged evidence is in some sense the product of illegal governmental
activity.’” United States v. Clariot, 655 F.3d 550, 553 (6th Cir. 2011) (second alteration in original)
(citation omitted). The second search yielded nothing new.
Therefore, based on Hudson’s consent, we AFFIRM the district court’s judgment that the
evidence obtained from the first and second warrantless searches is admissible.
2. The Third Search
Hudson’s consent also establishes the constitutionality of the third search. The district
court upheld the search on this ground, which we review for clear error. See United States v.
Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc).
The proof demonstrates no clear error in the district court’s findings that Gray initially
disclaimed an ownership or privacy interest in the apartment and that Hudson gave consent to the
9 No. 19-5951, United States v. Jesse Gray
search. Hudson called the police to come to the apartment and, once the officers arrived, indicated
that they should investigate the scene of the alleged domestic violence.
Gray cannot show that the district court clearly erred in determining that Hudson’s consent
was clear and unequivocal. As Officer Flannery testified, when he asked Hudson if he could search
the apartment, she responded: “Go ahead. I don’t have [anything] back there.” R. 65 at PageID
275. Body camera footage from the scene supports Officer Flannery’s testimony. R. 28-6, 00:24–
00:26.
There was also no clear error in the district court’s finding that Hudson’s consent was
voluntary. Gray offers no evidence suggesting that Officer Flannery engaged in a coercive
interrogation of Hudson to gain her consent. See Gray’s Brief at 9–10. Quite to the contrary, in
fact: Hudson affirmatively called the police to report a domestic violence incident, invited the
officers into her home, and then provided details of her fight with Gray—all actions that suggest
she was seeking their help to investigate the domestic violence and corroborate her claims. See
Smith v. City of Wyoming, 821 F.3d 697, 712 (6th Cir. 2016).
Finally, Hudson’s consent alone was sufficient to justify the officers’ search. Like the co-
inhabitant of the property in Beasley, Gray had the right as a co-habitant to object to the search.
He, however, initially responded to the search request by expressly disclaiming any ownership or
privacy interest in the apartment. See Beasley, 199 F. App’x at 424. When Flannery asked Gray
again whether he “ha[d] a problem” with the officers searching the bedroom, Gray responded,
“No.” R. 28-8, 00:09–00:12. Gray’s assertion that he did not give consent is of no import, given
that it is undisputed that Gray initially disclaimed any ownership or privacy interest and that
Hudson gave her consent.
10 No. 19-5951, United States v. Jesse Gray
Accordingly, we AFFIRM the district court’s judgment that the third search was
constitutional.
B. The Search Warrant
Finally, Gray seeks to invalidate the search warrant obtained by way of the affidavit
provided by Officer Page. Gray claims that the information in the affidavit was “taint[ed],” Gray’s
Brief at 8, because the information related to evidence that was unconstitutionally seized during
the first three searches of the residence. Gray also argues that because the affidavit contained
inaccurate information regarding the location of the original bag of marijuana, it lacked sufficient
details to show probable cause and justify the issuing of a warrant. We find none of these
arguments to be persuasive.
Because, as explained above, the first search was constitutional, all of the evidence the
officers obtained from that search and verified through the follow-up second search—including
the bags of marijuana and white pills—were properly included in Officer Page’s affidavit.
Likewise, because there was consent to the third search of the bedroom, the affidavit properly
referenced that evidence as well. This proof included a magnetic lock box containing 200 grams
of a heroin and fentanyl mixture, a kilo press commonly used by drug traffickers, acetone
commonly used for the preparation of drugs, a safe, baggies, and a loaded firearm.
Officer Page’s affidavit properly outlined all of the evidence seized by the officers during
the warrantless—but lawful—three searches. The only mistake in the affidavit related to the
description of the location of the marijuana. The drug was erroneously described as being found
on the kitchen table, as opposed to the bedroom, where it was actually seized before being placed
on the table by Officer Flannery. Nonetheless, the affidavit’s misstatement of location was
immaterial. Gray’s charges—(1) possession with intent to distribute forty grams or more of a
11 No. 19-5951, United States v. Jesse Gray
substance containing a detectable amount of fentanyl; (2) possession of a firearm in furtherance of
a drug trafficking crime; and (3) being a felon in possession of a firearm—all relied necessarily on
the existence of the evidence obtained from the third lawful search that had nothing to do with
whether the baggie of marijuana was located in the kitchen, as opposed to in the bedroom.
Consequently, the “lawfully obtained information amount[ed] to probable cause and would have
justified issuance of the warrant apart from the tainted information” regarding the location of the
baggie. United States v. Smith, 730 F.2d 1052, 1056 (6th Cir. 1984) (citation omitted).
Accordingly, we AFFIRM the district court’s denial of the motion to suppress evidence
seized pursuant to the search warrant, because the search warrant was substantiated by sufficient
evidence to establish probable cause. See id. at 1056–57.
III.
For the foregoing reasons, we AFFIRM Gray’s judgment of conviction.