U.S. v. Hylton

• Citation: 349 F.3d 781
• Decision Date: 19 November 2003
• Docket Number: No. 02-4664.,02-4664.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenzie HYLTON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

349 F.3d 781

UNITED STATES of America, Plaintiff-Appellee, v. Kenzie HYLTON, Defendant-Appellant.

No. 02-4664.

United States Court of Appeals, Fourth Circuit.

Argued September 26, 2003.

Decided November 19, 2003.

COPYRIGHT MATERIAL OMITTED

ARGUED: Kelli Colleen McTaggart, Assistant Federal Public Defender, Greenbelt, Maryland, for Appellant.

Donna Carol Sanger, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

ON BREIF: James Wyda, Federal Public Defender, Denise Barrett, Assistant Federal Public Defender, Greenbelt, Maryland, for Appellant. Thomas M. DiBiagio, United States Attorney, Greenbelt, Maryland, for Appellee.

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge LUTTIG and Judge Motz joined.

OPINION

NIEMEYER, Circuit Judge:

Kenzie Hylton was convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g), and sentenced to 210 months' imprisonment. On appeal he challenges his conviction, contending (1) that the firearm was seized pursuant to a warrantless search of his girlfriend's apartment where he was living, in violation of the Fourth Amendment; (2) that his later statement admitting possession of the firearm was obtained without the benefit of counsel at a time when his Sixth Amendment right to counsel had attached; and (3) that the district court's Allen charge to a deadlocked jury improperly coerced the jury to reach a verdict. For the reasons that follow, we affirm.

I

On April 23, 2001, following an argument between Kenzie Hylton and his girlfriend Hawanya Harper, Harper called the Prince George's County police for assistance, telling the police that Hylton was in her apartment with a gun and that he would not let her in. After police officers arrived, Harper told them that she and Hylton had had an argument and that Hylton had refused to let her into the apartment. She also told the officers that a gun was located "under the bed" or "under the mattress" in the bedroom that she and Hylton shared. Although Harper was the leaseholder of the apartment, she told officers that Hylton was a live-in boyfriend and the father of one of her children. She told the officers that two of her children were either in the apartment or at a neighbor's house. During her conversations with the officers, she also related how Hylton had raped her the previous week, using the gun to facilitate the rape.

The officers tried to call Hylton by telephone, but he refused to answer. They also determined through the police dispatcher that he was the subject of three outstanding minor traffic warrants for his arrest. After about 40 minutes, Hylton answered the telephone and surrendered to the police outside of the apartment, where he was placed under arrest on the three outstanding warrants.

The officers then entered the apartment and conducted a protective sweep to "secure it" and to retrieve the gun described by Harper. The officers found a loaded.38 caliber gun between the mattress and the box spring of the bed identified by Harper.

After processing Hylton's arrest under the warrants and learning that Hylton had been convicted previously of a felony, the officers filed a "statement of charges" in the District Court of Maryland for Prince George's County, charging Hylton with possession of a firearm by a convicted felon, in violation of Maryland Code, Article 27, § 445(d) (1996) (current version at Md. Code Ann., Pub. Safety § 5-133(c) (2003)). After Hylton appeared before a judicial officer, he was released.

Two days later, on April 25, 2001, Harper called the police again to relate that Hylton had made telephone calls in which he threatened to kill her. Prince George's County police officers again arrested Hylton, this time pursuant to a warrant issued for witness intimidation and harassment. After signing a form advising him of his Miranda rights, Hylton signed a written waiver of those rights, indicating that he wished to talk to police without a lawyer. During the ensuing interrogation, Hylton signed a statement that he had possessed the .38 caliber gun that had been seized from Harper's apartment two days earlier.

Hylton was indicted by a federal grand jury on May 14, 2001, charging him with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). He responded, filing motions to suppress (1) the .38 caliber gun seized on April 23 from Harper's apartment and (2) the statement he gave two days later admitting possession of the gun. The district court denied both motions, and the case proceeded to trial. When the jury announced that they were unable to reach a unanimous decision, the court gave the jury an "Allen charge," requesting them to make another effort to reach a unanimous verdict so long as the verdict represented the conscientious judgment of each juror. After 15 minutes of additional deliberations, the jury returned a guilty verdict. The district court sentenced Hylton to 210 months' imprisonment.

This appeal followed.

II

Hylton contends first that the district court erred in denying his motion to suppress the gun seized on April 23, 2001, pursuant to a search of the apartment in which he and Harper lived.

In ruling on the motion, the district court rejected the government's argument that Harper had consented to the search of her apartment:

I do not conclude that there was consent. There is no testimony that there was any express consent from Ms. Harper or even an attempt to get consent from her, nor do I find there circumstances analogous to those in which there can be implied consent. The call was I can't get into my apartment, not anything beyond that. I simply don't find this sufficient to indicate that Ms. Harper had impliedly consented to the entry.

The district court, however, agreed with the government's alternative arguments. The court concluded that the entry into the apartment and seizure of the gun were proper in that (1) after Hylton's arrest, the officers were entitled to conduct a protective sweep of the apartment without a warrant, under Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), and (2) because the officers were confronted by exigent circumstances created by the presence of the gun and risk of danger to Harper and her children, they were entitled to conduct a warrantless search, see Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990).

On appeal, Hylton contends that neither ground relied on by the court is supported by the circumstances in this case. He argues:

It is undisputed that officers had no indication, let alone evidence, that anyone dangerous was hiding in the apartment after officers arrested Mr. Hylton outside his apartment. Nor did they have any indication that the children were in danger. Although the officers may have been permitted to enter the apartment to look for the children, they exceeded the scope of that warrantless search when the search continued after police determined that no one was in the apartment. The officers also exceeded the scope of a protective sweep when they searched the bed not for a person, but for a gun, and seized the gun although it was not in plain view.

The government contends that the district court did not err in denying the motion to suppress, and as additional grounds for affirmance, it continues to argue that "Harper gave implied consent to enter and recover the firearm by summoning police to her apartment and providing them with the precise location of the firearm."

Although we review the district court's finding of facts for clear error, we review whether those facts satisfy the constitutional standard de novo. See United States v. Gwinn, 219 F.3d 326, 331 (4th Cir.2000).

The Fourth Amendment protects "the people" against "unreasonable searches and seizures," U.S. Const. amend. IV, and even though reasonableness generally requires that searches or seizures be conducted pursuant to a warrant, a warrantless search may be reasonable if it falls within "one of the narrow and well-delineated exceptions to the warrant requirement." Flippo v. West Virginia, 528 U.S. 11, 13, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999) (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). One "well-recognized" exception is valid consent. Trulock v. Freeh, 275 F.3d 391, 401 (4th Cir.2001) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Moreover, valid consent may be given by any one of the co-habitants of a premises, even though no other co-habitant has consented. This principle follows from the rationale that co-habitants have joint access or control for most purposes and therefore have the right to permit the inspection as their own right — each co-inhabitant has "assumed the risk that one of their number might permit the common area to be searched." United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

In this case, we assume for purposes of discussion that Hylton and Harper co-inhabited the apartment that Harper leased.^* When Hylton stayed in the apartment, he shared the bedroom and bed with Harper. Accordingly, there can be no doubt that Harper had authority to consent to a search of both the apartment and the bedroom in which she slept. This factual circumstance is to be distinguished from a situation where one co-habitant has an exclusive and private area within the jointly occupied premises justifying the exclusion of others, such as a locked foot locker. See United States v. Block, 590 F.2d 535, 541 (4th Cir.1978).

While Harper therefore had authority to give consent to a search of her apartment and bedroom, the district court found that Harper never gave the police express consent for such a search. The district court also concluded that the words and actions of Harper did not support the conclusion that she impliedly consented...