U.S. v. Tibbs

• Decision Date: 14 May 1999
• Docket Number: No. 96CR10153-NG.,96CR10153-NG.
• Citation: 49 F.Supp.2d 47
• Parties: UNITED STATES of America v. John TIBBS, Defendant.
• Court: U.S. District Court — District of Massachusetts

49 F.Supp.2d 47

UNITED STATES of America v. John TIBBS, Defendant.

No. 96CR10153-NG.

United States District Court, D. Massachusetts.

May 14, 1999.

James M. Doyle, Carney & Bassil, Boston, MA, Alan Campbell, Brookline, MA, for John Tibbs, defendant.

Ralph F. Boyd, Office of U.S. Atty., Boston, MA, for U.S.

MEMORANDUM AND ORDER RE: MOTION TO SUPPRESS

GERTNER, District Judge.

I. INTRODUCTION

Defendant, John Tibbs ("Tibbs") moves this Court to suppress evidence seized from the home of Khatisia Goode ("Goode") during a warrantless search conduct by Boston Police Officers on May 2, 1996. The Government contends that the failure to secure a warrant is excused by Goode's consent to the search. Tibbs counters that Goode's consent was not voluntary but rather was obtained through the coercive tactics of the police.¹

After multiple days of hearings, careful review of the transcripts, and substantial briefing, I agree with the defendant. Tibbs' motion to suppress the materials seized as a result of the May 2, 1996 search is ALLOWED.²

II. FINDINGS OF FACT

On May 2, 1996, Sgt. Paul Murphy ("Murphy") of the Boston Police arrested the defendant after receiving information from an informant that the defendant was in a stolen vehicle, with a firearm. As a result of Tibbs' arrest, the police obtained certain keys, which, based on prior police surveillance, they assumed fit an apartment at 67 Washington Street.

Tibbs was Goode's boyfriend. He occasionally stayed over night and left personal effects in Goode's apartment.

The Tibbs-Goode relationship did not last very long. They had been together only a few months before the May 2, 1996 search of her apartment; they broke up almost immediately afterward. While Goode had signed an affidavit on Tibbs' behalf, Goode's affect during the suppression hearing suggested that she was not at all enthusiastic about helping Tibbs. She did not wish to be embroiled any further in the matter, on either side. Her testimony was obtained by subpoena; until the last minute, counsel was not certain that she would arrive at all.

According to Goode, on the night Tibbs was arrested, at approximately 10:00 P.M., Goode was alone with her six year old son in her apartment in the building at 67 Washington Street. She heard a disruption at her front door. When she looked up, the police had opened her door with a key. Eleven or twelve police officers were standing in or near the doorway. She spoke to one of the officers in the front hall of her apartment, asked them what their business was, and immediately informed them that she had a sleeping child in the adjacent room. Mid-way through this conversation with one officer, Goode noticed that there were two other officers crouched in her front closet. When she told them that they had no right to search her closet, they "jumped out." One indicated that if she did not consent to the search, they would get a search warrant, and contact the Department of Social Services (DSS) which would take her child.³ Clearly, a significant factor in Goode's decision to allow the search was that she did not want the officers to take her child away.

Sgt. John Daley ("Daley"),⁴ the Boston Police officer at the scene, and Murphy testified that Goode was on the second floor landing as they approached her apartment. She agreed to let them try the key in her lock and invited all eleven or twelve of them into her apartment. But, according to Daley, Goode's oral consent was not enough. He sent someone down to his car to obtain a written consent form for her to execute. He testified that the group of officers remained congregated in the entry way of Goode's apartment, until Daley, seated with Goode in her kitchen, explained the situation and obtained her written consent to search.

I credit Goode's version. In some respects, her testimony is entirely consistent with that of the officers. Where her testimony diverges from that of the officers, I find the officers' testimony less credible.

It is agreed that there were eleven or twelve white officers assembled outside of Goode's apartment, where she was alone with her sleeping six year old child at 10:00 p.m. Murphy had called for reinforcements before searching 67 Washington Street. He had assembled a considerable force even though he knew from police surveillance that Tibbs had left the apartment and was under arrest, and even though he had no information that there were confederates in the apartment. Indeed, belying the notion that the officers were concerned with confederates, they had not surrounded the building prior to entering, nor had they placed anyone at the back door, or first floor landing as a precautionary measure.

It is agreed that the officers had tried Tibbs' key in a number of doors throughout the building. Daley testified that he believed that they had a right to try the key in the door, that that was somehow not a search. The procedure was to try the key in the door when occupant was not home, but to ask permission when he or she was present. According to Daley, they asked for Goode's permission because she was standing on the landing, and she agreed to let them try the key in her door.

In fact, the officers' testimony is inconsistent on this point. Officer Rogers, who was right behind Murphy and Daley, did not notice a woman at all as they came to the second floor.⁵ Murphy and Daley claimed that Goode had met them on the second floor landing outside her apartment and invited them in quickly because she feared that the police presence outside her apartment might embarrass her in front of her landlord. That testimony is improbable. A consistent theme in the hearing was Goode's concern with her sleeping child; she mentioned it countless times. No witness suggested that Goode had any idea what Tibbs was involved with, or that she had any knowledge that he had been arrested shortly before. Under the circumstances, it makes no sense that Goode would hear a disruption in the hall, somehow understand that it concerned her boyfriend, and then put herself and her son in harms' way. Nor does it make sense that she would be so concerned at the implications of having many police officers outside her door that she would invite them in to her apartment where her son lay sleeping.

Equally improbable is Daley's testimony that all the officers waited patiently at the threshold of Goode's apartment for some twenty or twenty five minutes, until the written consent was signed. Indeed, Murphy conceded that, consistent with Goode's testimony, there was "probably" a protective sweep into the apartment before any consent was obtained.⁶ And the protective sweep might have involved opening the closet door to see if someone was hiding in it.

While the officers vigorously denied making any threats against Goode's child, they agreed that the child was the subject of numerous discussions.⁷ It is not a substantial leap to conclude that one officer said to Goode just what she reported, that if she did not consent to the search and they had to get a warrant, she might be a suspect, and her child would be taken from her. In any event, based on her affect, her lack of interest in the outcome, the totality of the presentation, I credit Goode's version.

Finally, testimony with respect to the written form itself raises concern, and strongly suggests that it was window dressing. At some point during the search of Goode's apartment, Daley asked her to sign a form signifying that she had consented to the search. She signed it. Goode testified that she signed it well after the search had begun. The consent form reflects it having been signed at 10:45 p.m., some twenty to twenty-five minutes after the police had arrived. Furthermore, although the form indicates that the signer had been told that she had a right to refuse consent, Daley conceded that he did not get into that subject at all. And although the form indicates that the signer may be vulnerable to prosecution if "any incriminating evidence" were discovered in the apartment, Daley testified that this too was not discussed at the time the form was executed.⁸

III. LEGAL FRAMEWORK

The Fourth Amendment reflects a free society's strong preference that searches of private homes by the Government be conducted pursuant to a warrant. See Payton v. New York, 445 U.S., 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Welsh v. Wisconsin, 466 U.S. 740, 748-749, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). As the Court explained in Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436, (1948), cited approvingly in Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967):

The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.

There are exceptions to the warrant requirement but consistent with the Fourth Amendment's preference, they are narrowly defined. When the government claims that its warrantless search fits within one of these exceptions, it bears the burden of proving it. United States v. Carbajal, 956 F.2d 924, 930 (9th Cir.1992) (holding that the burden is on the government to show the reasonableness of a warrantless search, including demonstrating that the search comes within one of the narrow exceptions to the warrant requirement).

Consent is one such exception, Schneckloth v. Bustamonte, 412 U.S. 218, 222, 223, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). And consent under Fourth Amendment law, obligates the prosecutor to prove that the consent was, in fact, "freely and voluntarily given." Bumper v. State of North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). See also ...