165 F.3d 397 (6th Cir. 1998), 97-6010, United States v. Ivy

Docket Nº:97-6010.
Citation:165 F.3d 397
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James IVY, Defendant-Appellant.
Case Date:December 30, 1998
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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165 F.3d 397 (6th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

James IVY, Defendant-Appellant.

No. 97-6010.

United States Court of Appeals, Sixth Circuit

December 30, 1998

Argued Oct. 13, 1998.

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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. [*]

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.

I. INTRODUCTION

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,

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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.

II. FACTS

  1. Undisputed Background

    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.

  2. Police Testimony

    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

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    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.

  3. Defense Witnesses' Testimony

    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...

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