United States v. Johnson

107 F. App'x 674
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 18, 2004
DocketNo. 03-3364
StatusPublished
Cited by2 cases

This text of 107 F. App'x 674 (United States v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Johnson, 107 F. App'x 674 (7th Cir. 2004).

Opinion

ORDER

In February 2003 John Johnson consented to a search of his house, and detectives found crack cocaine inside. Johnson attempted to suppress the evidence on the grounds that his consent was not voluntary and, regardless, it was tainted by his own prior illegal detention. The district court refused to suppress the drugs, and after a jury trial Johnson was convicted of possession with intent to distribute crack cocaine. See 21 U.S.C. § 841(a)(1). He was sentenced to 240 months’ imprisonment, 10 years’ supervised release, and a $100 assessment. See id. §§ 841(b)(1)(A), 851. Johnson appeals the district court’s ruling on the motion to suppress. We remand for the limited purpose of allowing the district court to make additional findings of fact, and to analyze Johnson’s motion in light of those findings.

The following facts are taken from the hearing on the motion to suppress. At about 8:00 p.m. on Thursday, February 27, 2003, Stephon Blackwell, a detective for a Madison County, Indiana, narcotics task force, received an anonymous telephone tip that a “John Johnson” had gone to Muncie, Indiana, to pick up a large amount of crack and had brought back to his house at the “Fulton Street address” in Anderson, Indiana. The anonymous tipster said that Johnson usually picked up crack shipments on Thursdays, and that if he was not at home he would be driving around in a white vehicle. The caller did not give a specific address, any further information about the vehicle, or any information about the basis of her knowledge. (Blackwell assumed from the sound of the voice that the tipster was female.)

Shortly after the call, Blackwell and another detective, Cliff Cole, went to defendant Johnson’s residence “to perform a stop and knock.” It is not clear how Blackwell settled on this particular John Johnson or determined his exact address, but Blackwell testified that he knew Johnson from growing up. When the detectives arrived at Johnson’s house, they saw a white car in the driveway with the engine running. The two detectives parked near the residence and watched it for approximately five minutes. Then they pulled into the driveway, parked behind the white car, and saw a woman leave the [676]*676house. The detectives spoke with the woman, later identified as Johnson’s girlfriend, Katina Currie, and she verified that Johnson lived there and was home. The detectives asked Currie to knock on the door. She did and Johnson answered.

Johnson opened both the main door and a storm door in order to talk to the detectives. Blackwell told Johnson about the anonymous tip and asked to search the house. Johnson, whom the detectives said was agitated and speaking loudly, denied that there were any drugs in the house. The detectives testified that Johnson never directly refused permission to search but continued denying that there were drugs in the house. Blackwell and Johnson continued to converse for four to six more minutes. There was disputed testimony about the content of their conversation. Currie, who had gone back inside the house during the encounter, testified that she heard Johnson tell Blackwell to obtain a search warrant and the detective respond that he was reluctant to wake a judge that late. The detectives denied that there was any conversation about a search warrant. The district court never resolved the dispute, except to say that the evidence did not establish that the detectives made idle threats in order to gain Johnson’s consent to search the house.

After a few more minutes, Johnson turned away from the detectives and retreated into the house and down a hallway. Johnson’s retreat prompted Blackwell to pull his gun out of its holster, point it at the ground, and tell Johnson, “[N]ow if you go down that hallway, John, now it’s an officer safety issue.” Johnson turned to look back at the detective, then fully turned his body around, and according to Blackwell, appeared to relax. Blackwell then reholstered his weapon and continued to request that Johnson allow him to search the residence, while Cole went to the police vehicle to page the detectives’ supervisor. Cole returned and gave a phone to Blackwell, at which point Johnson said, “Well, you might as well come on in.” As soon as the detectives entered, Johnson told them, “You guys go ahead and search.” The detectives then entered the house and ultimately found a package of crack cocaine in a dresser.

On appeal Johnson argues that his consent to search was involuntary. He says he was coerced into consenting because the detectives improperly suggested that they were getting a warrant and because Blackwell had pulled his weapon out. The district court determined that under the totality of the circumstances Johnson’s consent was not coerced, a factual finding that we review for clear error. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Strache, 202 F.3d 980, 984-85 (7th Cir.2000). Although baseless threats to obtain a warrant may vitiate consent, United States v. White, 979 F.2d 539, 542 (7th Cir.1992), the district court concluded that the detectives had not made baseless threats in order to gain Johnson’s consent. Johnson has not pointed to any reason to disagree with the district court’s conclusion on this point. Regarding Blackwell’s weapon, this court has held that a brief display of a weapon does not vitiate valid consent. See United States v. Rojas, 783 F.2d 105, 108-09 (7th Cir.1986). Blackwell displayed his weapon for no more than 10 seconds, he never pointed it at Johnson, and he reholstered it before Johnson gave his consent to search the house. There is no indication that Johnson’s consent was rendered involuntary by any of the police conduct.

Johnson also argues that, notwithstanding whether his consent was voluntary, it was tainted by the fact that the officers subjected him to an illegal deten[677]*677tion. “Consent obtained after an illegal seizure is invalid unless it can be shown that the consent was in fact ‘sufficiently an act of free will to purge the primary taint’ of the unlawful seizure.” McGann v. Northeast Ill. Reg’l Commuter R.R. Corp., 8 F.3d 1174, 1184 (7th Cir.1994) (quoting Wong Sun v. United States, 371 U.S. 471, 483, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). The government must carry a “heavy burden” of showing that consent is purged of a primary taint, and the important factors are the temporal proximity of an illegal detention to the consent, the presence of intervening factors between the two events, and the nature and circumstances of the official misconduct. See United States v. Jerez, 108 F.3d 684, 695 (7th Cir.1997). When the consent to search is given contemporaneously with the detention, the government is unlikely to carry its burden. See id.; McGann, 8 F.3d at 1184.

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