U.S. v. McKerrell

Decision Date05 July 2007
Docket NumberNo. 06-5209.,06-5209.
Citation491 F.3d 1221
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jack Wayne McKERRELL, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Timothy L. Faerber, Assistant United States Attorney (David E. O'Meilia, United States Attorney, with him on the brief), Tulsa, OK, for Plaintiff-Appellee.

Barry L. Derryberry, Assistant Federal Public Defender (John V. Butcher, Federal Public Defender, and Robert A. Ridenour, Assistant Federal Public Defender, with him on the brief), Tulsa, OK, for Defendant-Appellant.

Before BRISCOE, HOLLOWAY, and O'BRIEN, Circuit Judges.

HOLLOWAY, Circuit Judge.

The Supreme Court in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1519, 164 L.Ed.2d 208 (2006), held that the Fourth Amendment forbids a warrantless search of a shared dwelling for evidence over a physically-present resident's express objection, notwithstanding his or her co-tenant's consent to search. We must decide whether barricading oneself in one's residence, in an unsuccessful effort to avoid a lawful arrest, vitiates a co-tenant's subsequent consent to search the residence. We hold that under the circumstances here, where the district court found that Defendant Jack McKerrell, Jr. ("McKerrell") barricaded himself in his residence to avoid arrest and never expressly objected to a possible search, McKerrell's co-tenant's consent justifies the challenged search. We also hold that the police removed McKerrell from the scene to carry out a lawful arrest, not to mute his potential objection to the search. We therefore affirm the district court's denial of McKerrell's motion to suppress.

I. BACKGROUND

On February 24, 2006, an anonymous caller informed the Tulsa Police Department that McKerrell had outstanding arrest warrants, used methamphetamine, and possessed an assault rifle and a shotgun. R., Vol. I, Doc. 25, at 2. The police investigated this tip and discovered that McKerrell had two outstanding felony warrants from Tulsa County, Oklahoma, for possessing a stolen vehicle, two municipal traffic warrants from Tulsa, Oklahoma, and a four-count felony warrant from Craig County, Oklahoma, for drug and traffic charges. Id. Officers determined McKerrell's address by searching utility-company records. Id.

Less than two weeks later, another caller told the police that McKerrell was working at home in his front yard. Id. In response, several police officers surrounded the residence and announced their presence. R., Vol. III, at 9-10. By that time, McKerrell was inside the home with his wife and young child, both of whom also resided at the home. Id. at 9, 12, 34. Instead of peacefully surrendering to the officers, however, McKerrell quickly closed the garage door and front door to barricade himself inside. Id. at 10.

Within minutes, Mrs. McKerrell exited the home, leaving McKerrell and their young child inside. Id. at 10, 12. The police began negotiating with McKerrell by calling a cell phone in the home and requesting, over the course of three or four conversations, that he surrender. Id. at 16, 17. Both parties dispute what was said during these conversations and McKerrell's motive for refusing to leave the house. Sergeant Middleton, who spoke with McKerrell on the phone, testified that McKerrell never objected to a search and was concerned solely with being arrested. Id. at 16. While Sergeant Middleton could not recall whether McKerrell told him not to enter the residence, id. at 17-18, the Sergeant clearly remembered that the conversation related entirely to whether McKerrell would allow the officers to execute the several valid arrest warrants. Id. at 20-21. Indeed, he testified that McKerrell never objected to a search. Id. at 16.

Sergeant Witt, another officer at the scene, testified similarly: McKerrell did not express an objection to a search either before or after the police arrested him. Id. at 6. McKerrell testified that he expressly informed the police several times that he did not want them inside his home. Id. at 49. The district court found that McKerrell never expressly refused to provide his consent to search. R., Vol. I, Doc. 25, at 8-9. Instead, the district court credited the officers' testimony that the subject of these telephone conversations was McKerrell's desire to avoid arrest. Id.

After these three or four conversations, McKerrell decided to surrender peacefully. R., Vol. III, at 17, 12. The police handcuffed McKerrell immediately. Id. at 12. They did not speak to him about searching the residence or prohibit him from speaking with Mrs. McKerrell. Id. at 6; Id. at 23, 30. They merely placed him under arrest and transported him to the police station about five minutes later. Id. at 12. Sergeant Witt testified that the police did not remove McKerrell from the scene to prevent him from influencing Mrs. McKerrell's decision about consenting to a search. Id. at 13. More broadly, Sergeant Witt testified that the officers' decision to remove McKerrell from the scene was unrelated to their decision to search the house. Id. at 13-14. Sergeant Middleton confirmed that nothing unusual occurred: "it is not unusual [that we took McKerrell away from the scene so quickly]. Usually, once we make the arrest, we put them in the vehicle and transport them." Id. at 19-20.

After McKerrell had left the scene, Sergeant Witt asked Mrs. McKerrell to speak with him and Sergeant Petree. Id. at 5. The district court found no evidence that the police coerced her to do so. R., Vol. I, Doc. 25, at 8. Mrs. McKerrell agreed to speak with the officers, and they all entered the home, with Mrs. McKerrell's permission, to begin the conversation. R., Vol. III, at 6.

Sergeant Witt used this conversation as an opportunity to determine how long the McKerrell family had lived at this home (about four years) and the scope of Mrs. McKerrell's authority over the home's interior. Id. at 7. Sergeant Witt testified that Mrs. McKerrell "[had] full run of the house," which he inferred from Mrs. McKerrell's statement that she did laundry in the home and was able to access every drawer and closet in the home. Id.

After discussing other questions that Mrs. McKerrell posed, primarily questions about McKerrell's bond, the officers asked Mrs. McKerrell for her consent to search the home. Id. at 8. Sergeant Petree presented Mrs. McKerrell with a consent form and explained its contents, which notified Mrs. McKerrell, inter alia, that she had the right to withhold her consent and the right to stop the search at any time. Id. at 8, 23-25; R., Vol. I, Doc. 23, Ex. 1. Mrs. McKerrell orally consented and then signed the form. R., Vol. III, 24-25; R., Vol. I, Doc. 23, Ex. 1. It is undisputed that McKerrell was absent when Mrs. McKerrell consented to this search. R., Vol. I, Doc. 25, at 9. The police then searched the home and found four firearms, which McKerrell possessed illegally.

Ultimately, McKerrell filed a motion to suppress, arguing that the officers violated the Fourth Amendment by searching his residence based on his wife's consent. R., Vol. I, Doc. 16. The district court denied McKerrell's motion because Mrs. McKerrell's consent was sufficient to justify the search in light of McKerrell's failure to object to the search. R., Vol. I, Doc. 25, at 8-9. Specifically, the court found that McKerrell's conduct at the scene — shutting his doors and remaining inside — related solely to his desire to avoid arrest. Id. at 8. The district judge found "persuasive the testimony of the officers that defendant did not expressly refuse consent to search his home." Id. at 9. Thus, the court distinguished Georgia v. Randolph because McKerrell never "articulated `express refusal of consent to a police search' to officers prior to [Mrs. McKerrell's] consent to search their home." R., Vol. I, Doc. 25, at 9 (citing 126 S.Ct. at 1523, 1528).

McKerrell then pleaded guilty to possessing firearms after a former felony conviction, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and received a sentence of 37 months' imprisonment, 3 years' supervised release, a $100 special assessment, and a $1,500 fine. R., Vol. I, Doc. 42. McKerrell reserved the right to appeal the denial of his motion to suppress the use as evidence of the firearms seized from his residence. R., Vol. I, Doc. 10, at 1, 3. He now appeals his conviction, asserting error in the district court's denial of his motion to suppress. We exercise jurisdiction under 28 U.S.C. § 1291.

II. DISCUSSION

McKerrell challenges the search's constitutionality on two grounds: first, he says that the search violated the Fourth Amendment because barricading himself in his residence conveyed his objection to the search and therefore precluded the officers from relying on his wife's consent; and second, he argues that the police removed him from the scene to avoid his possible objection to the search.

A. The Effect of Mrs. McKerrell's Consent
1.

In reviewing the denial of a motion to suppress, we accept the district court's factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the Government. United States v. Alcaraz-Arellano, 441 F.3d 1252, 1258 (10th Cir.2006). We review de novo the ultimate determination of Fourth Amendment reasonableness. Id.

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." U.S. Const. amend. IV. This protection takes on special meaning when the challenged intrusion involves the home: "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). But the Fourth Amendment permits a warrantless entry and search of a home when the "police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common...

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