United States v. McKinney, 020210 FED10, 08-3137

Docket Nº:08-3137, 09-3069
Opinion Judge:KELLY, BALDOCK, TYMKOVICH, Circuit Judges
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JASON MCKINNEY, Defendant-Appellant.
Judge Panel:Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.
Case Date:February 02, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JASON MCKINNEY, Defendant-Appellant.

Nos. 08-3137, 09-3069

United States Court of Appeals, Tenth Circuit

February 2, 2010

D.C. No. 2:06-CR-20078-JWL-1, D. Kan.

Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.

ORDER AND JUDGMENT[*]

Timothy M. Tymkovich Circuit Judge

Jason McKinney pleaded guilty to one count of possession with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841 (b)(1)(A)(iii) and one count of use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). On appeal he raises two points of error. In the first he argues that the district court erred by denying his motion to suppress evidence obtained in searching a residence.1 In the second he argues that the court abused its discretion in denying his motion to withdraw his guilty plea.

Our jurisdiction is under 28 U.S.C. § 1291, and we AFFIRM.

I.

The general facts necessary to this appeal are brief. Mr. McKinney was arrested after a woman contacted the Leavenworth, Kansas, police department and told them that a man known to her as "Smoke" had pointed a gun at her during an attempted drug purchase. When the police interviewed the woman she told them that "Smoke" had been accompanied by a man with dreadlocks and that the pair had left the area in a car. She described the car to police. After a brief search, the police located a car matching the woman's description parked in front of a duplex.

Mr. Cecil Newsom answered when the police knocked on the duplex's door. Mr. Newsom initially refused to let the police search the duplex, telling them that the only other person in the house was a sleeping woman. But after about ten minutes he agreed to allow the officers to search the house for "Smoke" and they entered and yelled repeatedly for everyone in the house to come out with their hands raised. Eventually "Smoke," who turned out to be Mr. McKinney, emerged and was apprehended. The police then searched the remainder of the duplex for the man alleged to be with Mr. McKinney. They found three individuals hiding in the duplex: the woman Mr. Newsom had informed them about, and two men, one with dreadlocks. The police left the duplex, allowing Mr. Newsom to go back to sleep, but eventually returned with a search warrant, obtained in part due to statements made to them by the woman from the duplex. She told the police that she had seen Mr. McKinney in the duplex with a mix of powdered and crack cocaine and a gun. Upon searching the duplex, the police found powdered and crack cocaine in the back of a toilet–the woman told the police she had heard what she thought was the lid on the back of the toilet being lifted–and a pistol.

Mr. McKinney sought to have the evidence regarding the drugs and weapon suppressed as fruit of the poisonous tree, alleging the police had no right to continue their initial search after they located Mr. McKinney. His motion was denied and he eventually pleaded guilty. He later moved to withdraw his plea, arguing, among other things, that it was not knowingly made due to the fact that he was unaware that the prosecutor's office suspected that he had made threats against the prosecutor in the case. After his withdrawal motion was denied, he was sentenced to 320 months' imprisonment on the first count and sixty months' imprisonment on the second, to run consecutively, as well as ten years' supervised release. He now appeals.

II.

Mr. McKinney first argues that the district court erred in denying his motion to suppress because Mr. Newsom's consent to the search of the duplex was not freely and voluntarily given. "[T]he Fourth Amendment requires that consent be voluntary and not be coerced, by explicit or implicit means, by implied threat or covert force. Voluntariness is a factual finding that is determined under the totality of the circumstances. Thus, we review the district court's determination of voluntariness for clear error." United States v. Thompson, 524 F.3d 1126, 1133 (10th Cir. 2008) (quotations and citations omitted). Mr. McKinney argues that the court "failed to consider the effect of the totality of the circumstances on the validity of Mr. Newsom's eventual consent" and that when the totality of the circumstances are considered "it is clear that Mr. Newsom had an objective reason to believe that he was not free to terminate the conversation and return to his house without granting consent for the search." Aplt. Opening Br. at 19.

When law enforcement officers ask to search a home, there will generally be factors surrounding the request that have coercive effect. For example, in this case there were a number of officers' present; the officers warned Mr. Newsom that harboring a fugitive was against the law; Mr. Newsom was on medication; and Mr. Newsom was arguably physically uncomfortable because it was cold outside and, as he had evidently been sleeping, he was clad in boxer shorts.

Generally, the court is faced with a situation where a person has initially consented to a police search and later claims that the consent was actually coerced. The court must then consider the situation, and the coercive factors present, when determining the validity of the consent. But here, Mr. Newsom testified at the suppression hearing and, as pointed out by the district court, never claimed...

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