United States v. Holland, 052413 FED6, 11-4301

Docket Nº:11-4301, 11-3948
Opinion Judge:MERRITT, Circuit Judge.
Party Name:United States of America, Plaintiff-Appellee, v. Matthew J. Holland and Richard Michael Persa, Defendants-Appellants.
Judge Panel:Before: MERRITT, McKEAGUE, and STRANCH, Circuit Judges. McKEAGUE, Circuit Judge, concurring.
Case Date:May 24, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

United States of America, Plaintiff-Appellee,


Matthew J. Holland and Richard Michael Persa, Defendants-Appellants.

Nos. 11-4301, 11-3948

United States Court of Appeals, Sixth Circuit

May 24, 2013



Before: MERRITT, McKEAGUE, and STRANCH, Circuit Judges.

MERRITT, Circuit Judge.

Defendants Holland and Persa pleaded guilty to federal bank robbery charges and now appeal the district court's denial of their suppression motions. The case raises two principal questions. First, as to Holland, we must determine whether police entry into his apartment was consensual. Subsidiary to this question, Holland asks us to reopen the suppression hearing. Second, as to Persa, we must decide whether the police's protective sweep of a bedroom was valid. We conclude that Holland is not entitled to reopen the record and that the district court did not err by finding that he consented to entry. We also conclude that the protective sweep of the bedroom followed by the arrest of Persa was valid.

I. Background

On a January morning in 2011, a lone robber attempted to hold up a Subway restaurant in Cleveland. Within fifteen minutes of arriving on the scene, police tracked the robber to a nearby apartment building based on information from a witness. Discussions with tenants and snowy footprints inside the building led the responding officers to believe that the robber lived in Apartment

2. When no one answered the door at Apartment 2, the officers left.

An investigation ensued in which police viewed a surveillance tape of the attempted robbery and learned from the building's landlord that Holland and Persa were the names of the tenants in Apartment 2. At around 9 p.m. the same day—about twelve hours after the initial visit to Apartment 2—a different set of policemen, Officers Borden and Shoulders, went to the apartment building without a warrant. Residents informed them that the tenants in Apartment 2 were home. The officers banged loudly on the door of Apartment 2 and threatened to return with a warrant if someone did not open up. Eventually Holland opened the door, and the officers stepped inside. Realizing that he was not the person they had seen on the tape, the officers asked Holland if he was alone in the apartment. He indicated that he was. The officers then heard rustling in a nearby bedroom. They entered the bedroom to find Persa attempting to hide under a hooded sweatshirt.

Questioning in the apartment revealed that Persa had committed a number of unsolved bank robberies in 2010. The officers placed Holland and Persa under arrest, and Holland signed a form consenting to a further search of the apartment. Additional questioning by the FBI the next day elicited each man's confession to committing the 2010 bank robberies. Presently a grand jury indicted Persa for five counts of bank robbery under 18 U.S.C. § 2113(a) and Holland for four counts of bank robbery under 18 U.S.C. § 2113(a).

The defendants moved to suppress their statements and evidence obtained in the search, arguing that their warrantless arrests violated the Fourth Amendment. After an evidentiary hearing, the district court denied the motions. Based on evidence obtained after entry into the bedroom, the district court found probable cause for the arrest of each man. Citing United States v. Talley, 275 F.3d 560 (6th Cir. 2001), it held that the officers were entitled to enter the bedroom by virtue of the "public-safety exception." Though the parties did not explicitly raise, and the court did not analyze, whether Holland consented to the officers' initial entry, the court stated that Holland "did not resist the entry of Sergeant Shoulders into the apartment." Mem. Op. at 2. After he acquired new counsel, Holland filed another suppression motion more thoroughly addressing consent and offering testimony by himself and his landlord that the police coerced entry into the apartment. The court denied the motion because Holland had explicitly refused to testify at the evidentiary hearing.

Each defendant entered a conditional guilty plea reserving his right to appeal the suppression issue. We exercise appellate jurisdiction under 28 U.S.C. § 1291.

II. Evidentiary Record

We will first address whether Holland is entitled to offer further evidence on the issue of consent or whether he is limited to the record he has on appeal. If permitted, Holland would testify that Officers Borden and Shoulders kicked in his door, entered with guns drawn, and immediately handcuffed him. Holland's landlord would testify that there was no damage to the apartment door before the officers' visit, but that damage appeared afterward. Def.'s Supp. Mot. to Suppress at 6.

We review a trial court's refusal to reopen a suppression hearing for abuse of discretion. United States v. Carter, 374 F.3d 399, 405 (6th Cir. 2004), vacated on other grounds, 543 U.S. 1111 (2005). When considering a motion to reopen, the district court should account for the timeliness of the motion, the character of the proposed testimony, the effect of granting the motion, and, most importantly, whether the opposing party will be prejudiced by reopening the record. United States v. Stennis, 457 F.App'x 494, 502 (6th Cir. 2012); United States v. White, 455 F.App'x 647, 650–51 (6th Cir. 2012). However, before the court considers any of these elements, the moving party must offer a good reason for not previously presenting the proposed proof. White, 455 F.App'x at 650–51; Carter, 374 F.3d at 405–06. The movant must provide a "reasonable and adequate explanation for failing to put forth its evidence in the original proceeding." Stennis, 457 F.App'x at 502.

Holland cannot meet this standard. He argues that his acquisition of new defense counsel after the suppression hearing is a reasonable basis for reopening the record. Clearly, Holland's first attorney inexplicably failed to raise the consent issue at the suppression hearing.1 But as in Carter, which likewise upheld a court's decision not to reopen a suppression hearing, Holland's renewed suppression motion, filed by his new attorney, did not argue that his previous attorney was incompetent. See Carter, 374 F.3d at 406. Though prior counsel's poor performance could in some circumstances satisfy the moving party's threshold showing, the district court should at least be presented with the argument when asked to reconsider an order denying suppression.

Holland says he only realized consent was at issue after "receiving the entire discovery, and reviewing the testimony of officers at the first suppression hearing." Holland Br. at 16. However, he does not indicate what additional discovery he received. Moreover, if the officers indeed broke into the apartment with guns aimed, the issue of consent should have been clear to Holland at the suppression hearing. He provides no good reason why the landlord could not have testified to the door's condition—testimony that might have contradicted Officer Shoulders's unrefuted statement at the hearing that damage to the door was on its inside rather than its outside. Holland is in an especially poor position to argue with the district court's decision, because at the suppression hearing the district court made it clear that he had the opportunity to dispute the Government's testimony.2Despite this warning, he declined to offer any proof.

The district court did not abuse its discretion by refusing to reopen the suppression hearing. Holland's constitutional claim must be decided on the current record.

III. Consent to Enter Apartment

Our constitutional law provides special protections against official entry into houses. It has long been established that police officers may not intrude into the privacy of a home unless they have a warrant, unless they have valid consent, or unless exigent circumstances justify entry. See Steagald v. United States, 451 U.S. 204, 211–12 (1981). The parties agree that Officers Shoulders and Borden had no warrant, and neither party raises the question of exigent circumstances. Holland and Persa both contend, however, that the officers had no consent to enter. They argue that this taint requires suppression of subsequently discovered evidence under the fruit-of-the-poisonous-tree doctrine. See Wong Sun v. United States, 371 U.S. 471, 484–88 (1963).

A. Standard of Review

Before assessing the merits of this claim, we must address two points about the standard of review. First, Holland states that the district court's finding of consent is to be considered de novo. Our cases have not always followed a consistent standard when reviewing a trial court's determination that a defendant gave voluntary consent to warrantless search or entry. Usually we have shown deference to the district court's conclusion, but at times we have declared a more probing standard. Compare United States v. Moon, 513 F.3d 527, 536 (6th Cir. 2008) (stating that "we review the determination of the ultimate question of whether there was consent de novo" while affording "due weight" to the district court's factual inferences and credibility determinations), with United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc) (stating that we review the question of voluntary consent for clear error). Holland does not provide any explanation of why his preferred standard is correct or of whether consent is a question of fact or a mixed question of fact and law. Without a convincing argument to the contrary, we must review the district court's consent determination for clear error. The leading case on the issue holds that the voluntariness of a defendant's consent under the Fourth Amendment is "a question of fact to be determined from the totality of all the circumstances, " Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (emphasis added), and we do not reverse a...

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