U.S. v. Ivy
| Decision Date | 30 December 1998 |
| Docket Number | No. 97-6010,97-6010 |
| Citation | 165 F.3d 397 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James IVY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Thomas A. Colthurst, Asst. U.S. Attorney (argued and briefed), Veronica F. Coleman (briefed), Office of U.S. Attorney, Memphis, TN, for Plaintiff-Appellee.
Eugene A. Laurenzi (argued and briefed), Agee, Allen, Godwin, Morris, Laurenzi & Hamilton, Memphis, TN, James Ivy, pro se, Federal Correctional Institute, Beaumont, TX, for Defendant-Appellant.
Before: JONES and COLE, Circuit Judges; MARBLEY, District Judge. *
The appellant, James Ivy, convicted in the Western District of Tennessee for cocaine possession with intent to distribute in violation of 21 U.S.C. § 841(a)(1), appeals the denial of his motion to suppress evidence found during a police search of his home. On appeal, Ivy raises two issues: first, whether the district court erred in finding that he consented to the officers' entry into his house; and, second, whether the district court erred in finding that his consent to the police search of his house was given voluntarily. For the reasons stated herein, we AFFIRM the district court's judgment that Ivy consented to the police officer's entry into his house, REVERSE the district court's judgment that Ivy voluntarily consented to the police search of his house, and REMAND for further proceedings consistent with this opinion.
On January 29, 1993, a grand jury in the Western District of Tennessee returned a one count indictment charging James Ivy and Dennis Dunning with possessing forty-nine grams of cocaine base with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). After Ivy failed to appear for an evidentiary hearing scheduled for May 18 1993, a warrant was issued for his arrest. Ivy was arrested April 23, 1996. On June 17, 1996, a superseding indictment added a second count of failure to appear in violation of 18 U.S.C. § 3146(a)(1).
Ivy moved to suppress the evidence obtained during a police search of his residence, claiming that he did not consent to the officers' entry into his house, and that his consent to the search was not voluntary. After an evidentiary hearing, the magistrate judge found that Ivy voluntarily consented both to the officers' entry and their search of his residence, and recommended denying Ivy's motion. The district court did not conduct its own evidentiary hearing or make its own findings of fact or law, but simply adopted the magistrate's report, and denied Ivy's motion to suppress. Ivy pled guilty to count one of the superseding indictment, reserving the right to appeal his suppression motion. Ivy now appeals the district court's ruling. For the reasons set forth below, we REVERSE Ivy's conviction and REMAND this case to the district court for further proceedings consistent with this opinion.
On December 19, 1991, Shelby County Sheriff Department Officer Paul Harvey and two other officers went to a house located at 6706 Silhouette in Memphis, Tennessee, based on information that a fugitive, Desi Arnez Hall, was at that location. At the time, Ivy resided at this address. The officers arrived, knocked on the front door, and Ivy opened it. Officer Harvey asked Ivy if he was Desi Arnez Hall, and Ivy replied that he was not. At this point, the testimony of police officers and defense witnesses diverge.
According to police witnesses who testified at the suppression hearing, Officer Harvey requested identification from Ivy, and Ivy said that he would have to retrieve it. The officers asked Ivy if he would mind if they came inside. Ivy say "okay," and the officers followed him into the house. There, the officers encountered two other men and a woman. Officer Harvey asked one of the men, later identified as Dennis Dunning, if he was Desi Arnez Hall and Dunning answered he was not. Officer Harvey asked Dunning for identification, which Dunning stated was in his car. The officer asked him to retrieve it. Dunning then fled, running out of the back door of the house. The officers pursued Dunning and caught him in the back yard as he attempted to jump over a fence, and subdued him after a struggle. Pieces of crack cocaine fell out of Dunning's pockets during the skirmish.
The officers brought Dunning back into the house. Officer Holloway meanwhile had "secured" the other occupants. In walking back through the house, Officer Harvey found a small quantity of crack cocaine on the floor. He then called for additional officers from the Narcotics Unit.
Sergeant Jackie Setliff and Officer Roger Swatzena arrived some time later. An officer advised Ivy and the other individuals at the house, including Ivy's girlfriend, Tina Jones, of their rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Sergeant Setliff then spoke to Ivy and requested his consent to search the house. Ivy did not respond to this request, but asked the sergeant what would happen if he did not consent. Setliff replied that he would attempt to obtain a search warrant. Ivy remained unresponsive. Setliff suspended his conversation with Ivy to attend to other tasks, and resumed the conversation ten minutes later. The sergeant asked Ivy if he had changed his mind, and when Ivy again did not respond, Setliff contacted his office to make arrangements to obtain a search warrant. A few minutes after this telephone call, Ivy informed the officer that he would provide his consent and signed the consent form. During the entire time that Sergeant Setliff questioned Ivy, Ivy's girlfriend, Tina Jones, was handcuffed to a table, attempting to care for their infant child.
After Ivy signed the consent form, the police searched the house. In a bedroom, Officer Harvey found a small quantity of crack cocaine in a dresser drawer and approximately $5500 in cash in a night stand. Sergeant Setliff found a set of triple beam scales in one of the bedrooms. Additionally, the police found in a drawer in the kitchen several guns and a cooking tube containing cocaine residue. Based on this evidence, the officers arrested Ivy.
According to Ivy and Jones' testimony at the suppression hearing, Officer Harvey did not simply ask Ivy for identification, but rather used physical force to gain entrance. Officer Harvey shoved Ivy against an interior wall, forced his arm behind his back, and demanded some identification.
Further, Ivy maintained, a full hour and a half passed between the initial request for consent and his signing the consent form. During this time, Jones was handcuffed to the kitchen table by her legs, and at points Officer Holloway took Jones' child from her. Ivy testified that when he first refused to sign the consent form, Sergeant Setliff said "I could be a man about it and sign the consent and let my wife, my fiancee and baby go or I could let them go to jail with me or I could be a fool and let everybody in the house go to jail." After Ivy initially refused, Sergeant Setliff asked Jones to sign a consent to search form. When she also declined to do so, Jones testified, the sergeant told her that refusal to sign would mean the police would take her child away, that she would no longer be able to see the child and that she would go to jail.
Immediately after Jones' refusal, the police asked Ivy for a second time to sign the consent form. Again, he refused. Ivy testified that Sergeant Setliff responded that he would obtain a search warrant regardless of Ivy's consent and that "I could be a man about it and just release them and let them not go to jail or I could just be a fool and let everybody go to jail." Finally, upon the police's third request, Ivy acquiesced and signed the form.
In its finding of facts, the district court essentially accepted the police version of events, and ruled that the evidence obtained in the search of Ivy's house should not be suppressed. The district court, adopting the magistrate judge's report, found that Ivy and Jones were not credible witnesses. It concluded:
[T]he testimony of Officer Harvey is more credible than that of the defendant James Ivy. Officer Harvey and his fellow patrolman were not at the house to look for drugs. They were there to locate Desi Arnez Hall, and did not know whether defendant was Hall or not. There was therefore no incentive for them to enter the house, except to protect themselves and to make sure defendant did not run out the back. At the evidentiary hearing, defendant testified that the $5,500.00 to $5,600.00 found by officers in a night stand in one of the bedrooms was money he and his girl friend had saved, and that he kept it under the night stand to keep it safe from burglars. This is such an incredible story ... that it taints defendant's credibility in general.
Based on this finding of the relative credibility of the witnesses, the district court adopted the police version of events with regard to Ivy's consent in allowing the officers to enter his house. The district court held "defendant did in fact invite Officer Harvey and his partner into the house, as Harvey testified."
Similarly, the district court concluded that Ivy's consent to search the house was given voluntarily. The court explained:
Sergeant Setliff then went to defendant James Ivy and asked him if he would sign a "consent to search" the premises at 6706 Silhouette. Defendant made no response, and Sgt. Setliff went about doing other things. About five (5) to ten (10) minutes later, Sgt. Setliff again asked defendant if he would sign a "consent to search."
There is a dispute about what next happened ....
... [I]t is reasonable to infer that, when defendant asked Sgt. Setliff what would happen if he did not sign the "consent," Sgt. Setliff told him something...
To continue reading
Request your trial
-
Albea v. Bunn
...would bear the burden of proving that consent was given voluntarily in the criminal context of a motion to suppress. United States v. Ivy , 165 F.3d 397, 402 (6th Cir. 1998) (citing Schneckloth , 412 U.S. at 219, 93 S.Ct. 2041 ; United States v. Kelly , 913 F.2d 261, 265 (6th Cir. 1990) ). ......
-
U.S. v. Stokely
...Cooke, 915 F.2d 250, 252 (6th Cir.1990) (citing United States v. McCaleb, 552 F.2d 717, 721 (6th Cir.1977)); see also United States v. Ivy, 165 F.3d 397, 402 (6th Cir.1998). Furthermore, consent must be more than mere acquiescence to apparent lawful authority. Bumper v. North Carolina, 391 ......
-
U.S. v. Patayan Soriano
...told that her children would lose their state financial aid and be taken away from her if she did not cooperate); United States v. Ivy, 165 F.3d 397, 403-04 (6th Cir.1998) (officer's threat to arrest Ivy's wife and take away her child were "attempt[s] to overcome's Ivy's resolution not to c......
-
U.S. v. Hudson
...223 F.3d 368, 375 (6th Cir.2000) (quoting United States v. Williams, 754 F.2d 672, 674-75 (6th Cir.1985)); see also United States v. Ivy, 165 F.3d 397, 401 (6th Cir.1998). Having viewed the facts in the light most favorable to the government, see United States v. Erwin, 155 F.3d 818, 822 (6......
-
Reconstructing consent.
...to the issue of coercion."). (50) United States v. Tibbs, 49 F. Supp. 2d 47, 4849, 53 (D. Mass. 1999); accord United States v. Ivy, 165 F.3d 397 (6th Cir. 1998) (threatening to take a child from mom is coercive); cf. United States v. Eggers, 21 F. Supp. 2d 261, 270-71 (S.D.N.Y. 1998) (polic......