Grumbley v. Burt, 012715 FED6, 13-1260

Docket Nº:13-1260
Opinion Judge:BERNICE BOUIE DONALD, Circuit Judge.
Party Name:FREDERICK GRUMBLEY, Petitioner-Appellant, v. SHERRY BURT, Respondent-Appellee.
Judge Panel:BEFORE: DAUGHTREY, ROGERS, and DONALD, Circuit Judges
Case Date:January 27, 2015
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
FREE EXCERPT

FREDERICK GRUMBLEY, Petitioner-Appellant,

v.

SHERRY BURT, Respondent-Appellee.

No. 13-1260

United States Court of Appeals, Sixth Circuit

January 27, 2015

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: DAUGHTREY, ROGERS, and DONALD, Circuit Judges

OPINION

BERNICE BOUIE DONALD, Circuit Judge.

Frederick Grumbley ("Grumbley"), a Michigan state prisoner, appeals the district court's judgment denying his petition for writ of habeas corpus filed pursuant to 28 U.S.C § 2254. The charges against Grumbley arose out of an allegation by his then thirteen-year-old half-sister, Misty Grumbley ("Misty"), that Grumbley had been pressuring her to make a sexually explicit film with one of her male friends, Chad Fuoss ("Chad"), and threatened that he would have Chad charged with statutory rape if Misty refused to have sex with Chad and allow Grumbley to videotape it. Misty also alleged that Grumbley had sexually abused her on two occasions, once when she was seven and once when she was twelve. Misty advised her parents of the matter and then recounted the allegations to the police. Grumbley was arrested at his home, without a warrant, the day after Misty's parents reported the allegations to the police, and a jury trial followed. After being convicted of five of the seven charges brought against him, 1 Grumbley was sentenced as a habitual offender, fourth offense, Mich. Comp. Laws § 769.12, to a prison term of 24 to 50 years on extortion, attempt to prepare child sexually abusive material, and felon in possession charges; a term of 5 to 15 years on a count of possession of child sexually abusive material, to be served concurrently with the 24 to 50 year term; and a term of 2 years on the felony-firearm conviction, to be served preceding and consecutive to the sentences on the other charges.

Grumbley argued in his federal habeas petition that his trial counsel was ineffective for failing to file a motion to suppress evidence found during a search of Grumbley's home, even though the police found the evidence at issue after they had illegally arrested Grumbley in his home without a warrant. For the reasons stated below, we REVERSE the district court's finding that Grumbley's trial counsel was not ineffective for failing to move to suppress evidence illegally seized from Grumbley's home, and REMAND with instructions to grant Grumbley a conditional writ of habeas corpus.

I.

A.

When his state case began, Grumbley was living with Connie Robinson ("Robinson") and her daughter, Dory, in a trailer. Dory's age at that time is unspecified. Grumbley and Robinson were intimately involved with one another for a short period of time, and then lived together for eleven years "as friends."

In the trailer, Grumbley had access to his bedroom as well as the common areas of the living room, kitchen, and bathroom. Robinson and Dory slept in a separate bedroom. Grumbley's computer and associated media were stored in his room. Robinson never went into Grumbley's room to inspect his things. When asked if any of Grumbley's computer or related technology was ever in her bedroom or the common areas, Robinson testified that a Microsoft disk was the only computer item of Grumbley's that she had seen in the common areas.

Grumbley was arrested at this home on December 16, 2003, just after 9 p.m. Grumbley was arrested based on accusations from his then thirteen-year-old half-sister, Misty, who alleged that Grumbley had inappropriately touched her once in 2003 and once five years prior, when Misty was seven. At trial, Grumbley denied both allegations of sexual contact with Misty, and a jury acquitted him of two charges of criminal sexual conduct under Mich. Comp. Laws § 750.520c.

Additionally, Misty alleged that Grumbley told her he wanted to make a sex tape of her and Chad to put on the Internet. Misty further alleged that Grumbley said that if she did not make the sex tape with Chad, then Grumbley wanted to have sex with her. Grumbley allegedly gave Misty twenty-four hours to make a decision. Grumbley testified that he did not want to make the sex tape for his own gratification, but to "prove" that Chad was involving Misty in a "Gothic lifestyle."

On December 15, 2003, Misty told her parents about the alleged conversation, and they then called the police. They spoke to Deputy Travis Henige that day, and to Detective Virginia May the following day. Sergeant Mark Garabelli also became involved with the case. Deputy Henige took down Misty's initial complaint. At that time, Misty's father, Frederick Grumbley, Sr., warned Deputy Henige that there might be a firearm in Grumbley's trailer. Although they did not obtain a warrant, Detective May, Deputy Henige, Sergeant Garabelli, and Deputy Fresorger went to Grumbley's trailer on the night of December 16, 2003, to arrest him. Detective May testified that she conferred with her superior officer before making the arrest. Detective May and her superior officer concluded at that time that where there was probable cause for a felony, Detective May had authorization to arrest suspects without a warrant. Before going to Grumbley's home, Detective May met with the two deputies and Sergeant Garabelli to update them on the status of the investigation. They then proceeded to the trailer. Detective May was in plain clothes, while Deputy Henige, Deputy Fresorger, and Sergeant Garabelli were in uniform. Sergeant Garabelli testified that either Deputy Fresorger or Deputy Henige knocked on the door, and someone answered quickly. Grumbley, Robinson, and Dory were in the home.

Sergeant Garabelli testified that when the door to the small trailer was answered, the officers had their guns drawn and they ordered Grumbley to the ground. Sergeant Garabelli testified that he did not recall having a conversation with the person who answered the door. Detective May testified, "We knocked on the door. We identified ourselves, and we asked for Frederick Grumbley. We went in." Detective May further testified that, when Grumbley saw who was at the door, he said "three times you're out." At this point, the officers secured Grumbly in handcuffs and placed him on a chair in the living room. Robinson and Dory were sitting on a couch in the living room.

Detective May requested permission to search the trailer. Sergeant Garabelli testified at trial that Detective May asked both Grumbley and Robinson for permission to search the home, and that both responded in the affirmative. Detective Henige testified that Detective May requested and received consent to search the home from Grumbley, and that Robinson did not register any protest. Robinson testified that she did not recall the police asking to look around. Detective May and Sergeant Garabelli further testified that Grumbley gave them permission to "take whatever you need, " and did not limit his permission or ask for a search warrant. Detective May also testified that Grumbley signed a consent form in her presence, though the prosecution was unable to produce the form at trial. At his sentencing hearing, Grumbley testified that he had limited his consent on this form, and that he had granted permission only for the police to take his computer.

With respect to the items seized, Sergeant Garabelli testified that he asked about the presence of firearms, for the protection of the officers. Both Robinson and Grumbley indicated where the officers would find guns in their respective bedrooms. Detective May testified that Grumbley stated his computer had crashed, and that he had to take it apart. Sergeant Garabelli testified that he did not recall Grumbley commenting about the condition of his computer.

Detective May testified that she did not personally collect all of the evidence gathered from Grumbley's home, but that she bagged what the other officers collected after they had advised her of where the items had been located. Some evidence was bagged at the Sheriff's Department, and some at the trailer. On appeal, Grumbley provides the following list of evidence that is the "most closely related to the contested charges in this appeal":

Three firearms: a pistol found in Robinson's bedroom, and a case with two guns found in Grumbley's room.

One CD containing what appeared to be commercially made child pornography. Grumbley testified at trial that he downloaded the child pornography. Grumbley also testified at his sentencing hearing that the disc was deleted, and that he had no way of accessing the material.

A desktop computer tower with no hard drive. Grumbley testified at trial that he had destroyed the hard drive because it had gotten viruses on the Internet, and therefore it had crashed several times.

Two other computers, neither of which contained hard drives. Grumbley testified at trial that he was building one of these computers for Dory, and was using the other himself.

Six floppy disks which did not contain child pornography. Detective Paul Dietzel testified that these disks contained "writing, " including "bind twins, pullover, sex rules, bear, opnut" and "nude lingerie."

Magazines found in Grumbley's bedroom. Sergeant Garabelli testified that the magazines contained images of children.

Undeveloped film. The film was later processed, and included pictures of Dory nude wearing her mother's bra. Grumbley testified at trial that he had taken the photos because Dory was "acting goofy" and he wanted to "capture it on film."2

After the police searched his home, they took Grumbley to Saginaw County Jail. Sergeant Garabelli read Grumbley his Miranda rights in the patrol vehicle and again at the station, where Grumbley also signed a Miranda form. Sergeant Garabelli testified that Grumbley made statements both in the car and after he had signed the waiver form at the station. The statements made after Grumbley signed the waiver form were tape...

To continue reading

FREE SIGN UP