United States v. Jones

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Jones No. 01-6036 ELECTRONIC CITATION: 2003 FED App. 0227P (6th Cir.) File Name: 03a0227p.06 ON BRIEF: James W. Bell, Knoxville, Tennessee, for Appellant. David P. Folmar, Jr., ASSISTANT UNITED UNITED STATES COURT OF APPEALS STATES ATTORNEY, Knoxville, Tennessee, for Appellee. FOR THE SIXTH CIRCUIT GILMAN, J., delivered the opinion of the court, in which _________________ SARGUS, D. J., joined. KENNEDY, J. (pp. 9-12), delivered a separate dissenting opinion. UNITED STATES OF AMERICA , X _________________ Plaintiff-Appellee, - - OPINION - No. 01-6036 _________________ v. - > , RONALD LEE GILMAN, Circuit Judge. Richard Jones, RICHARD JONES, JR., - Jr. entered a conditional plea of guilty to possession of more Defendant-Appellant. - than 50 grams of cocaine base with intent to distribute, in N violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and to Appeal from the United States District Court possession of a firearm after having been convicted of a for the Eastern District of Tennessee at Knoxville. felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). No. 00-00131—James H. Jarvis, District Judge. Pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, Jones reserved the right to appeal the decision of Argued: December 12, 2002 the district court denying his motion to suppress evidence seized at his residence during a search by federal and state Decided and Filed: July 10, 2003 law enforcement authorities.

Before: KENNEDY and GILMAN, Circuit Judges; On appeal, Jones argues that the entry into his residence SARGUS, District Judge.* was unlawful after he refused a request by law enforcement officers that he voluntarily consent to a search. Jones asserts, _________________ as part of this contention, that the two persons on the premises that day never gave the officers permission to enter, and, in COUNSEL any event, that they were without authority to do so. For the reasons set forth below, we agree that the officers lacked ARGUED: James W. Bell, Knoxville, Tennessee, for lawful authority to enter the residence. We therefore Appellant. Perry H. Piper, ASSISTANT UNITED STATES REVERSE the judgment of the district court and REMAND ATTORNEY, Chattanooga, Tennessee, for Appellee. the case for further proceedings consistent with this opinion.

* The Honorable Edmund A. Sargus, Jr., United States District Judge for the S outhern District of O hio, sitting by designation.

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I. BACKGROUND to ensure that the dogs did not attack. According to Gilreath, James Teasley answered the door. Gilreath identified himself In the summer of 2000, a federal task force composed of and asked Teasley his identity. After Teasley gave his name, agents of the Federal Bureau of Investigation (FBI) and the Gilreath asked him his purpose in being there. Teasley Bureau of Alcohol, Tobacco and Firearms (ATF), together advised that he was there to clean up the house. Gilreath then with officers of the Knoxville Police Department, began asked if he could come in and talk to Teasley. The district surveillance of Jones’s residence. Law enforcement officers court found that Teasley told the officer that he could come had obtained information that Jones was residing in inside the door of the residence. Jones argues, however, that Knoxville, Tennessee and was in possession of firearms and Teasley never gave the officer permission, but simply stepped drugs. The agents and officers subsequently determined that back from the front door. Jones was wanted on an outstanding federal arrest warrant. After stepping inside the residence, Gilreath observed a On August 9, 2000, members of the task force pulled Jones second male sitting to his left in the living room. Gilreath over in his car and arrested him on the federal warrant. The began a conversation with the male, who identified himself as arresting officers asked Jones for permission to search his Thomas Dickason. Officer Gilreath questioned Dickason residence, which he refused to give. Jones was then placed in about why he was working on the car and removing the door custody and transported to the local police station. panel. He also asked Dickason about his relationship to Jones. During the course of their conversation, Gilreath As a result of the surveillance conducted prior to Jones’s recognized prison tattoos on Dickason. Dickason told arrest, the officers knew that two other individuals were at his Gilreath that he had served a prison sentence but was now residence. The officers had observed a male working on a straight. motor vehicle in the driveway and had seen him take off one of the door panels. A second person was observed bringing He also advised Gilreath that his identification (ID) was in food and water to dogs that were living at the residence. a duffel bag in the back bedroom together with his clothes and tools. Gilreath then asked Dickason for permission to look FBI Special Agent Steven Fisher testified that, after for the ID in the bedroom. Dickason told Gilreath that he arresting Jones, he and two Knoxville police officers went could and pointed to the back bedroom where the duffel bag back to the residence, even though they had been denied containing the ID was located. consent to search by Jones. Fisher testified that their purpose was not to seek consent for a search, but instead to determine Gilreath walked to the room and found the duffel bag. the identity of the two individuals at the residence. He and While there, he observed a rifle leaning up in the corner of the the two Knoxville police officers ultimately went to the front bedroom and what appeared to be two other firearms and a door and asked to speak to the occupants. Fisher testified crossbow. When the duffel bag was opened, Gilreath saw a that, had the individual answering the door refused to speak pipe apparently used to smoke crack cocaine. to them, he and the police officers would have left the premises. The residence was then secured while the officers sought a federal search warrant. Special Agent Steven Fisher Officer Kenneth Gilreath of the Knoxville Police submitted an affidavit in conjunction with the application for Department knocked on the door, while Fisher waited outside a search warrant, expressly noting that Jones had denied No. 01-6036 United States v. Jones 5 6 United States v. Jones No. 01-6036

permission for a consensual search of the residence. The The Supreme Court has clearly stated that “the Fourth affidavit further described the interview of Teasley conducted Amendment has drawn a firm line at the entrance to the by Officer Gilreath in the foyer of the residence. Fisher house.” Payton v. New York, 445 U.S. 573, 590 (1980) further averred that, while in the foyer, the officers observed (holding that the Fourth Amendment prohibits the police from Dickason. After questioning Dickason, the affidavit noted making a warrantless and nonconsensual entry into a suspect's that Dickason gave Gilreath permission to retrieve his duffel home in order to make a routine felony arrest). In addition, bag from a bedroom that Dickason had occupied the night a prior decision of this court notes that “the Supreme Court before. has firmly and repeatedly rejected the proposition that the Fourth Amendment offers no protection against government Jones contends that after he refused consent to search, entry into a home unless the entry is for the purpose of neither Teasley nor Dickason, both of whom had lesser performing a traditional ‘search’ or ‘seizure.’” United States possessory rights to the premises than Jones, could give v. Rohrig, 98 F.3d 1506, 1511 (6th Cir. 1996) (holding that lawful consent for the officers to enter the premises. For the although police officers entered a home for the sole purpose reasons set forth below, we agree. of turning down the stereo, Fourth Amendment protections were triggered). This means that even if we were to accept II. ANALYSIS the contention that Officer Gilreath entered the residence solely for the purpose of continuing his conversation with This court reviews the district court’s findings of fact in a Teasley, his conduct would not be insulated from Fourth suppression hearing under the “clearly erroneous” standard, Amendment analysis. while the district court’s conclusions of law are reviewed de novo. United States v. Pennington, 328 F.3d 215, 216-17 (6th The district court found that Teasley affirmatively gave Cir. 2003). In order to uphold the ruling of the district court Gilreath permission to enter the residence. Because we that denied Jones’s motion to suppress, we must find that believe that this is a ruling that could have gone either way, Officer Gilreath was lawfully admitted to the residence by it was not clearly erroneous. Anderson v. Bessemer County, Teasley, and also that his subsequent progression through the 470 U.S. 564, 570 (1984) (“Where there are two permissible house once inside was within the bounds of the Fourth views of the evidence, the factfinder’s choice between them Amendment. cannot be clearly erroneous.”). We therefore turn to the question of whether Teasley had the authority to give that As an initial matter, we note that the magistrate judge permission. The question of when an employee’s consent is referred to both Teasley and Dickason as overnight guests sufficient for entry into a residence has not been treated throughout his analysis. Dickason admitted that he had slept uniformly by the courts. 3 Wayne R. LaFave, Search and in the residence, but there is no evidence in the record Seizure: A Treatise on the Fourth Amendment, §8.6(c) (3d suggesting that Teasley was anything more than a handyman. ed. 2002). Some have relied on a theory of agency, while Because this factual finding of the magistrate judge was others depend entirely on whether the employee had apparent clearly erroneous, we refer to Teasley below as an employee authority. Id. In general, the cases have engaged in a fact- of Jones. Even labeling Teasley as an overnight guest, specific analysis of the level of responsibility given to the however, would not change what we conclude is the proper employee. If the employee’s job duties include the granting outcome of this case. of access to the premises, authority to consent is more likely to be found. A caretaker left in charge of a home for several No. 01-6036 United States v. Jones 7 8 United States v. Jones No. 01-6036

weeks, for example, might have authority to permit entry, Officer Gilreath knew that the individual who opened the while a worker who is present on a more limited basis would door was simply a handyman. This fact, combined with not. Id. Jones’s prior denial of consent to a search, made it impossible for a “man of reasonable caution” to believe that Teasley had In this case, Teasley, a handyman, clearly lacked actual the authority to consent to a search of the residence, or even authority to permit Officer Gilreath to enter the residence. His to permit entry. Because Teasley had neither actual nor authority, even assuming that he had any, would have ceased apparent authority to admit Officer Gilreath to the residence, at the point that Jones denied consent to a search, which had the warrantless entry was unlawful. This means that all of to be understood by Officer Gilreath to include a denial of Officer Gilreath’s conversations and discoveries after he entry. Although it is true that an employee does in some entered must be excluded under the “fruit of the poisonous instances have sufficient authority to consent to entry into or tree” doctrine. Northrop v. Trippett, 265 F.3d 372 (6th Cir. a search of his employer’s residence, the lesser, and 2001) (“[T]he fruit of the poisonous tree doctrine provides necessarily derivative, interest of the employee cannot that evidence discovered as the indirect result of a Fourth override the greater interest of the owner. When the primary Amendment violation is inadmissible . . . .”). We therefore occupant has denied permission to enter and conduct a search, need not reach the propriety of Officer Gilreath’s actions once his employee does not have the authority to override that inside the residence. denial. See United States v. Impink, 728 F.2d 1228, 1234 (9th Cir.1984) (stating that “when the police intentionally bypass III. CONCLUSION a suspect who is present and known by them to possess a superior privacy interest, the validity of third party consent is For all of the reasons set forth above, we REVERSE the less certain”). An individual with an equal interest in the judgment of the district court and REMAND the case for residence, such as a spouse or cotenant, would presumably further proceedings consistent with this opinion. have such authority, but that is not the case here. LaFave, § 8.6(c). We next turn to the question of whether any reasonable person would have believed that Teasley had apparent authority to consent to Gilreath’s entry into the residence. This court has previously held that “[w]hen one person consents to a search of property owned by another, the consent is valid if the facts available to the officer at the moment . . . warrant a man of reasonable caution in the belief that the consenting party had authority over the premises. Thus, there is no violation of the Fourth Amendment if, under the totality of the circumstances, the officer performing the search has relied in good faith on a person’s apparent authority.” United States v. Campbell, 317 F.3d 597, 608 (6th Cir. 2003) (internal quotation marks and citations omitted). No. 01-6036 United States v. Jones 9 10 United States v. Jones No. 01-6036

_________________ whether the officers should go to Jones’ residence and try to identify some of the people who had been observed at the DISSENT residence earlier in the day. _________________ When the officers arrived at Jones’ residence, Agent Fisher KENNEDY, Circuit Judge, dissenting. Contrary to the hung back near the street to maintain a clear view toward the majority, I believe that the facts available to Officer Gilreath back of the residence to protect Officers Gilreath and at the time he asked permission to step into the foyer of Kingsbury’s safety as they went up and knocked on the door. Jones’ home were such as to warrant a reasonable belief that The officers were concerned about the large dogs, which Teasley had sufficient authority over the premises to consent included some rottweilers, they had seen earlier. Fisher to Gilreath’s entry for the purpose of continuing the remained in this position for “short period of time” before conversation with Teasley, even in light of Jones’ prior denial approaching the front porch himself. of consent to search the residence. Accordingly, I respectfully dissent. Officer Gilreath testified that a black male responded to his knock on the door. Officer Gilreath’s testimony as to the When reviewing the denial of a motion to suppress, this substance of his conversation with the black male is as Court reviews the district court’s factual findings for clear follows: error and its legal conclusions de novo. United States v. Taylor, 248 F.3d 506, 511 (6th Cir. 2001). I disagree with the [W]hen he came to the door I identified myself. I majority that the record supports a finding that Officer showed him my badge and my ID and I asked him who Gilreath knew that Teasley was a hired handyman when he he was. He told me James Teasley and he seemed kind knocked on the front door of the house, questioned Teasley of nervous. I asked him, well, Mr. Teasley, what are you briefly, asked to step inside, and Teasley responded “sure” to doing here and he said cleaning up. I said, Mr. Teasley, Gilreath’s request to enter. I said, you are a little nervous, you don’t have any warrants or anything on you, do you, and he says, well, Officers Gilreath and Kingbury conducted surveillance of I don’t know. I said, well, either yes or no and he says, Jones’ home on the day of, but prior to, Jones’ arrest. I don’t know. I said, is that a maybe? He says, maybe. Gilreath testified that he observed a white male working on a I said, well, can I talk to you for a minute? Can I come in car in Jones’ driveway and a black male feeding a couple of and talk to you? He says, sure. He steps back and I step dogs on a screened-in back porch. Gilreath testified that the directly inside the door. black male he observed could have been Teasley. Gilreath also testified that “[t]here was a lot of activity in and around The district court credited Gilreath’s testimony that Teasley the house, with people coming and going.” responded “sure,” giving express permission to enter the foyer. When Agent Fisher asked Jones if he could search Jones’ residence, he also asked who was at the residence. According At the moment Officer Gilreath was given permission to to Fisher, Jones replied that “family members were back at enter Jones’ dwelling, he knew that Jones had claimed that the residence.” Fisher then conferred with Officers Gilreath “family members” were at his home, that Teasley resembled and Kingsbury, who were present at the arrest scene, as to the man Gilreath had observed feeding dogs on the back No. 01-6036 United States v. Jones 11 12 United States v. Jones No. 01-6036

porch earlier in the day, and that Teasley, who was standing have the authority to permit the police to enter the residence, with a mop and bucket, had explained that he was cleaning despite Jones’ prior denial. The majority relies solely on the up, when asked to explain his presence. Under these entry to find that all the evidence obtained after entry, circumstances, a reasonably cautious officer could reasonably including the proceeds of the search warrant, should be assume that Teasley was a member of the household1 and, as suppressed. Yet the entry was not a search and no such, had the authority to at least consent to Officer Gilreath’s observation of criminal conduct was made upon entering. entry into the residence for the purpose of completing the The majority does not contend that Dickason, known to conversation. This Circuit has held that in applying the test Gilreath as an overnight guest for at least two days, could not to determine whether a consent to entry was valid, the actual consent to the entry of Dickason’s bedroom. As an overnight relationship between the consenter and owner is not critical; guest, Dickason had authority to permit Gilreath to go the rather, it is how the relationship would appear to the officer bedroom to get Dickason’s identification. There Gilreath that is critical. United States v. Jenkins, 92 F.3d 430, 436 (6th observed the gun in plain view, which provided the Cir. 1996). Unless Teasley provided Officer Gilreath with information used to secure the search warrant.2 While I agree additional information that would have altered the default that Gilreath’s entry is not isolated from Fourth Amendment assumption that the consenter has authority over the property, analyses, I would hold that each step of the officers’ conduct a reasonable officer may assume that someone who comes to was reasonable under the circumstances. I would, therefore, the door after the knock has authority to consent to police affirm the district court order denying the motion to suppress entry into the dwelling. Id. at 437. and affirm the conviction. Only Agent Fisher testified that Teasley “was there to clean the house. He was kind of like a hired individual.” Officer Gilreath did not testify that Teasley identified himself as a person hired to clean the house or that he otherwise was aware that Teasley was hired help. It is clear that Fisher was not present on the porch when Teasley said he was “cleaning up.” Fisher’s testimony as to Teasley’s employment status should not be credited in determining what Gilreath knew when he acted on Teasley’s consent to enter. While Fisher refers to Teasley as a handyman, the basis for this conclusion is not established. Family members also can, and do, “clean up.” The fact that Jones had denied the officers’ request to search his residence does not alter the analysis. As the majority observes, an individual with an equal interest in the 2 residence, such as a domestic member of the household, could Officer Gilreath recognized the gun as contraband because Jones had just been arrested on an outstanding warrant for po ssession of a firearm by a convicted felon and, prior to the officer’s entry into the 1 bedroom, Dickason had admitted to Gilreath that he had spent time in Jones is blac k as was the female with him at the tim e of his arrest. prison.