U.S. v. Harrison

• Decision Date: 11 May 2011
• Docket Number: No. 10–5061.,10–5061.
• Citation: 639 F.3d 1273
• Parties: UNITED STATES of America, Plaintiff–Appellant,v.Johnny James HARRISON, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

639 F.3d 1273

UNITED STATES of America, Plaintiff–Appellant,

v.Johnny James HARRISON, Defendant–Appellee.

No. 10–5061.

United States Court of Appeals, Tenth Circuit.

May 11, 2011.

Richard A. Friedman, Attorney, Appellate Section, Criminal Division, United States Department of Justice, Washington D.C. (Lanny A. Breuer, Assistant Attorney General, and Gregory D. Andres, Acting Deputy Assistant Attorney General, Criminal Division, United States Department of Justice, Washington, D.C.; and Thomas Scott Woodward, United States Attorney, and Janet S. Reincke, Assistant United States Attorney, Northern District of Oklahoma, Tulsa, OK, with him on the briefs) for Plaintiff–Appellant.Neil D. Van Dalsem (Robert Scott Williams with him on the brief) of Taylor, Ryan, Schmidt & Van Dalsem, P.C., Tulsa, OK, for Defendant–Appellee.Before O'BRIEN, SEYMOUR and HOLMES, Circuit Judges.SEYMOUR, Circuit Judge.

Mr. Harrison was charged by indictment with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). The firearm at issue was discovered by agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) during a warrantless search of Mr. Harrison's apartment. Mr. Harrison moved to suppress evidence of the loaded firearm, arguing he had not voluntarily consented to the search. The district court held a suppression hearing and agreed with Mr. Harrison that deceitful tactics used by the ATF to gain consent to search rendered Mr. Harrison's consent involuntary. The court granted the motion to suppress. The United States appeals, and we affirm.

I.

According to testimony given during the suppression hearing, ATF Agent Stephen Brenneman began investigating Mr. Harrison after receiving information that he owed a thousand dollars to a suspected firearms trafficker and was selling drugs out of his apartment. Agent Brenneman conducted surveillance of Mr. Harrison's apartment over several months, but did not observe evidence of drug trafficking. Because the ATF lacked probable cause to request a warrant to search the apartment, Agent Brenneman and ATF Agent Darrell Withem decided to conduct a “knock and talk” ¹ with Mr. Harrison in an attempt to gain consent to search the apartment.

On the day of the search, the Agents were dressed in plain clothes with their badges around their necks. Although they were armed, their firearms were not visible. The Agents went to Mr. Harrison's apartment and knocked on the door. Without opening the door, Mr. Harrison responded from inside the apartment, “Who is it?” Aplt.App. at 17. Agent Brenneman replied, “It's Steve.” Id. Mr. Harrison said something to the effect of, “Hold on a minute.” Id. Two or three minutes passed before Mr. Harrison opened the door. During this time, Agent Brenneman periodically continued to knock. When Mr. Harrison opened the door, the Agents identified themselves as law enforcement officers and asked if they could come inside to talk. Mr. Harrison agreed to talk and introduced himself.

Agent Brenneman told Mr. Harrison they were there because, “our office received an anonymous phone call there were drugs and bombs at this apartment,” ² and he asked if Mr. Harrison “would mind if we look around the apartment.” Id. at 19. The government concedes the ATF had no reason to believe there were bombs in the apartment, but Agent Brenneman testified he had planned to say this to Mr. Harrison “in an effort to gain his consent to search.” Id. at 38. Mr. Harrison replied either that there were no bombs in the apartment, or that he didn't think there were bombs in the apartment. Agent Brenneman then told him, “Well, you know, any time we get a phone call like this, you know, our boss makes us come out and investigate it further and see if there's any threat or danger to the community.” Id. at 20–21.

Mr. Harrison explained that he did not know if he could give permission because it was his girlfriend's apartment. Agent Brenneman told Mr. Harrison that he could consent because he lived there and had control of the apartment. Agent Withem then assured him, “We're not here to bust you on a bag of weed.... We have bigger fish to fry than a small bag of weed.” Id. at 53. The Agents testified that Mr. Harrison then gave them permission to search the apartment. ³ During the search, Agent Brenneman found a loaded handgun that was hidden in a hole in the drywall underneath a sink.

After hearing the evidence, the district court granted the motion to suppress in an oral ruling. The court found as follows:

The statement here made was that there was an anonymous tip that there were bombs and drugs at the apartment followed by the statement any time we receive this information our boss makes us check it out. And as for the statement by special Agent Withem that if Harrison had a little bit of weed they were not there to bust him. Again, that is a reassertion that we're not there to bust for a little bit of weed, rather we're looking for bombs and drugs. This is precisely what the founders intended the Fourth Amendment to stop. It is an unreasonable search based upon the totality of the circumstances given the statements by federal law enforcement.... The government cannot, particularly when one is an Alcohol, Tobacco, Firearm, and Explosives agent state that we received an anonymous tip that there are bombs here and our boss says we have to check it out.

Id. at 84–85. The court explained,

[T]he government can't obtain valid consent to search by placing a person in fear, or making a statement from which a person could be in fear, or suggesting that there may be a threat to a person that lives within a house....

Specifically the Court finds that the government has not met its burden of producing clear and positive testimony that the consent here was freely given....

As counsel for the defendant states in his brief, if a person doesn't actually have a bomb or know of a bomb in an apartment, then the logical interpretation of the statement is that someone else could have put a bomb or explosive in the premises. For those reasons the motion to suppress is granted.

Id. at 85–87. On appeal, the government contends the search was lawful because the Agents used a permissible form of deception to gain consent. It claims the Agents' conduct was not coercive because they did not represent that a bomb had been planted in the apartment, but instead they implied Mr. Harrison was unlawfully possessing drugs and bombs. It further argues Mr. Harrison did not feel subjectively threatened by the Agents, nor did they imply they had lawful authority to search without his consent.

II.

“When we review an order granting a motion to suppress, we accept the trial court's factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the district court's finding.” United States v. Zapata, 997 F.2d 751, 756 (10th Cir.1993) (internal quotation marks omitted). Whether consent was voluntarily given is a question of fact we review for clear error.⁴ United States v. Silva–Arzeta, 602 F.3d 1208, 1213 (10th Cir.2010). We apply the clearly erroneous standard “because the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters most appropriate for the district court.” United States v. Mendoza–Salgado, 964 F.2d 993, 1011 (10th Cir.1992) (internal quotation marks omitted). The ultimate determination of the reasonableness of the search under the Fourth Amendment is a question of law which we review de novo. Zapata, 997 F.2d at 756.

A warrantless search of a home is presumptively unreasonable, and evidence obtained from such a search is inadmissible, subject only to a few carefully established exceptions. Silva–Arzeta, 602 F.3d at 1213. Voluntary consent to search is one such exception. Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). “But the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.” Schneckloth, 412 U.S. at 228, 93 S.Ct. 2041.

The government bears the burden of proving that consent is given freely and voluntarily. Id. at 222, 93 S.Ct. 2041. “[T]he question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Id. at 227, 93 S.Ct. 2041. Relevant considerations

include physical mistreatment, use of violence, threats, promises, inducements, deception, trickery, or an aggressive tone, the physical and mental condition and capacity of the defendant, the number of officers on the scene, and the display of police weapons. Whether an officer reads a defendant his Miranda rights, obtains consent pursuant to a claim of lawful authority, or informs a defendant of his or her right to refuse consent also are factors to consider in determining whether consent given was voluntary under the totality of the circumstances.

United States v. Sawyer, 441 F.3d 890, 895 (10th Cir.2006) (citations omitted).

The government first contends the search of Mr. Harrison's apartment was reasonable because courts have repeatedly held that the government may use deception to gain entry to a residence. It is true that not all deception or trickery will render a search invalid. For example, “an undercover agent may gain entry to a person's home by deception and purchase narcotics with no violation of the fourth amendment.” Pleasant v. Lovell, 876 F.2d 787, 802 (10th Cir.1989) (citing Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966)). But the...