United States v. Sean Carter

378 F.3d 584, 2004 U.S. App. LEXIS 16188, 2004 WL 1752392

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 6, 2004
• Docket: 01-5338
• Status: Published

Opinions

OPINION

BOGGS, Chief Judge.

Defendant Sean Carter pleaded guilty to possession of crack cocaine with intent to distribute and to aiding and abetting his cohort Calvin Holliday in the same crime. The district court denied his motion to suppress evidence gained from a warrant-less search by police of his hotel room, and he now challenges that ruling.

A divided panel of this court previously affirmed the district court ruling, on the grounds that exigent circumstances had justified the police officers’ entry into Carter’s hotel room. We granted rehearing en banc to consider whether the circumstances truly qualified as exigent. 315 F.3d 651. We need not reach that question because we now conclude that the district court correctly found that Carter consented to the officers’ entry.

I

The facts in this case appear in greater detail in the panel decision at 315 F.3d 651. We repeat the salient points here.

On March 21, 2000, in Lexington, Kentucky, a confidential informant informed law enforcement officials that Carter and Holliday were in the process of leaving a “crack house” to obtain more crack cocaine for sale. The confidential informant provided a description and license plate number for the vehicle in which Carter and Holliday were traveling.

Law enforcement officers followed the vehicle to a Red Roof Inn and observed Carter and Holliday enter Room 119. They monitored the room until Holliday left it and returned to his vehicle. When Holliday began to drive out of the parking lot, the officers executed a traffic stop, detected the odor of marijuana emanating from the vehicle, and observed marijuana in the vehicle. They arrested Holliday and searched his person and vehicle, finding seventeen grams of crack cocaine. The validity of this arrest is not challenged.

The officers then returned to Room 119. They knocked on the door four times, the first two times identifying themselves as housekeeping personnel. Carter finally opened the door, and saw two officers wearing vests bearing the word “POLICE” over civilian clothes, and a third in a police uniform. None of the officers had their firearms drawn or otherwise behaved in a threatening manner. The officers identified themselves. As they did so, they smelled marijuana from inside the room and observed what appeared to be, and was, the stub of a mostly-consumed marijuana cigar, or “blunt,” in plain sight in an ashtray on a table adjacent to the door.

It is undisputed that at this point the officers asked Carter if they could enter the hotel room and speak to him. In response, Carter stepped back and cleared a path for the officers to enter. Detective Edward Hart immediately proceeded to the table, picked up the “blunt” stub, and quickly confirmed by sight and scent his initial belief that it contained marijuana. The officers then placed Carter under arrest. Carter proved to be carrying twelve grams of crack cocaine and $1,749 in cash on his person.

A federal grand jury indicted Carter and Holliday on five counts of cocaine trafficking, in violation of 21 U.S.C. § 841(a)(1). The district court conducted an evidentiary hearing and denied Carter’s motion to suppress the evidence found in the hotel room and on his person. At the hearing, Detective Hart testified in detail as to the circumstances of his entry into Room 119. The district court found the officers’ entry justified by exigent circumstances, namely that once Carter was alerted to the presence of law enforcement personnel he could have quickly disposed of the evidence; in the alternative, the court found that Carter had validly consented to the officers’ entry into his hotel room. Carter thereupon conditionally pled guilty, reserving the right to challenge his Conviction based on the outcome of the suppression hearing. Following sentencing, Carter timely brought this appeal.

II

This court reviews “a district court’s factual findings regarding motions to suppress for clear error and its legal conclusions de novo.” United States v. Blair, 214 F.3d 690, 696 (6th Cir.2000) (citation omitted). Where a district court denies that motion, we consider the evidence “in the light most favorable to the government.” United States v. Wellman, 185 F.3d 651, 654-55 (6th Cir.1999) (citation omitted).

It is well-settled that a person may waive his Fourth Amendment rights by consenting to a search. Davis v. United States, 328 U.S. 582, 593-94, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946). Consent to a search “may be in the form of words, gesture, or conduct.” United States v. Griffin, 530 F.2d 739, 742 (7th Cir.1976). In whatever form, consent has effect only if it is given freely and voluntarily. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

"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.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Thus, our review is for clear error. United States v. Erwin, 155 F.3d 818, 822 (6th Cir.1998) (en banc). Carter did not testify at the suppression hearing, so our information as to the exact sequence of events after Carter opened the door to Room 119 comes by way of Detective Hart’s testimony:

Q. Okay. And again, you testify that "Mr. Carter told you all to come on in. You all just entered the room on your own; right?

A. We asked if we could come in and speak to him. At this time he moved away from the door and backed up.

Q. Did he say yes?

A. I don’t recall him saying yes. But as he was doing that, I went on to retrieve the suspected marijuana.

Q. Okay. So as he was standing, stepping back, you were proceeding on in any way?

A. Yes. Based on the odor that I smelled and what I was observing, I went in to obtain [the blunt],

* * * * ^ *

Q. [Y]ou said that you are not certain if he responded either yes or no to Detective Carter’s asking about — asking permission to come in?

A. That’s correct.

Q. But regardless of what he said, you had already ascertained the odor of marijuana, and seeing this blunt that you were going to seize that and arrest him for possession of marijuana regardless?

A. Yes. I was going to seize that item.

We hold that the district court did not clearly err, considering this testimony and all the circumstances, in finding that Carter’s actions as described constituted valid consent. The investigating officers were instantly recognizable as policemen when Carter opened the door. They properly asked permission to enter, and Carter stepped back, letting them in. Any ordinary caller, under like circumstances, would understand assent to have been given, and the police are not held to a higher standard in this regard than an ordinary person. Robbins v. MacKenzie, 364 F.2d 45, 49 (1st Cir.1966) (“An ordinary person who knocks on a door and receives assent may properly consider himself an invited guest.... Similarly, the fourth amendment ... does not require [a police officer] to be clairvoyant.”).

A number of cases with superficially similar fact-patterns have held that the confrontation between police and suspect was impermissibly tainted by “duress, coercion [or] trickery.” United States v. Jones, 641 F.2d 425, 429 (6th Cir.1981) (search not consented to, where police officers pounded and kicked on door, barged in with firearms drawn before any words were exchanged, and claimed to have a warrant). Even a spoken assent to search may be too ambiguous to establish 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 was intimidating and defendant testified that he felt he had no choice.) But each such determination is “fact-specific,” and there is no “ ‘magic’ formula or equation” for determining consent in the abstract. Id. at 387.

Here, the officers specifically asked if they could come in, and Carter was not threatened, coerced, or tricked when he chose to let the officers into his room. Nothing in the record indicates that he was unaware of his well-known right to refuse entry, which he might have done simply by standing pat, saying “no,” or closing the door. His decision may have been rash and ill-considered, but that does not make it invalid. The Fourth Amendment does not require police officers to counsel a suspect to consider his options with care.

Carter makes much of the fact that Hart apparently intended in any event to enter the room to seize the blunt. What Hart might have done had consent not been given is, of course, irrelevant. But Carter urges that consent was not given because Hart carried out his intent and barged ahead to seize the blunt, and Carter merely jumped out of the way. This is one possible reading of Hart’s testimony, and such a scenario would not amount to consent. See Robbins, 364 F.2d at 48 (stepping back in fear is not consent). But precisely because testimony often becomes more ambiguous when reduced to toneless words on a page, we defer to the district court’s factual finding. See Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (“[wjhere there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous”).

Carter further contends that the district court judge never actually found that consent was given, so there is no occasion for deferential review. Carter relies on the judge’s exact words at the suppression hearing: “I believe the officer has testified without contradiction here now that he has permission to enter the room. And the defendant did not say anything but stepped back, which indicates to the Court that there was at least acquiescence.” Focusing on the word “acquiescence,” Carter reminds us that consent will not be found upon mere “acquiescence to a claim of lawful authority.” Bumper, 391 U.S. at 548-49, 88 S.Ct. 1788 (1968).

Carter’s verbal quibble is bootless. Bumper dealt with acquiescence to the execution of an improperly-issued warrant. Ibid. The officers here made no such overpowering claim of authority, in the face of which any consent would have been mere acknowledgment. “Acquiescence” commonly indicates assent, however grudging. Black’s Law Dictionary, 23 (7th ed. 1999)(“tacit or passive acceptance; implied consent”); Ballentine’s Law Dictionary (3d ed. 1969) (“acceptance, perhaps without approval .... Conduct from which may be inferred assent with a consequent estoppel or quasi-estoppel” (citations omitted)). Here, the district judge explicitly used “acquiescence” to mean “permission”—that is, consent.

Fundamentally, Carter asks us to hold as a matter of law that consent must be given verbally, perhaps by some “magic words” formula. This we decline to do. Although a man’s home is his castle, trumpets need not herald an invitation. The police may be kept out or invited in as informally as any other guest. Carter invited the police in and cannot undo his act in court.

III

Once invited into Carter’s hotel room to talk, Detective Hart had the latitude of a guest in the room unless restricted by Carter himself. Thus, there was nothing improper in Hart’s decision to take the few steps to the table which, he testified, was “near the door, between the door and the wall,” and visible even from outside the room. Once he had arrived there, the smell and appearance of the blunt, coupled with the knowledge that Holliday had confessed to having smoked marijuana a short time ago in that room, “warranted] a man of reasonable caution in the belief’ that it was a blunt and not a legal cigar filled with tobacco. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). The “plain view” exception to the warrant requirement applies: the blunt was in plain view; there was probable cause to consider it incriminating on its face; Hart was lawfully in position to see it; and Hart had a lawful right of access to the item. United States v. Calloway, 116 F.3d 1129, 1133 (6th Cir.1997).

As some of our colleagues note, Hart did testify that a blunt closely resembles an ordinary cigar. But this does not mean, contrary to Judge Martin’s dissent (page 592), that “the 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 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). A “blunt” is a marijuana-filled cigar. Hart testified that this particular “cigar” smelled like burnt marijuana, and that as an experienced drug-interdiction officer, he was very familiar with that scent. See Brown, 460 U.S. at 743, 103 S.Ct. 1535 (1983) (officer who used his “trained eye” to identify dual-use drug paraphernalia had probable cause). As he got closer to the “cigar,” he testified, the scent got stronger, and when he looked closely at the stubbed-out end, he could see “the green leafy substance in the end.” See id. at 740, 103 S.Ct. 1535 (officer whose suspicions are aroused may shift angle of view and shine light on suspect objects to see them better); compare Arizona v. Hicks, 480 U.S. 321, 325, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) (officer relying on plain view doctrine may not “expose[ ] to view concealed portions” of homeowner’s property). Unlike the officers in McLevain, Hart did not have to conduct “further investigation” (e.g., chemical testing of commonplace objects). McLevain, 310 F.3d at 443. He had probable cause “on the facts then available.” United States v. Beal, 810 F.2d 574, 577 (6th Cir.1987).

Carter does not argue that there was anything improper about his consequent arrest or the search of his person incident to that arrest, except insofar as the further search would be the “fruit of the poisonous tree” had the initial seizure been improper. Because the initial seizure was proper, the tree is untainted, and in the absence of any other reason to suppress the resulting evidence, it was properly admitted.

IV

For these reasons, we AFFIRM the order of the district court.