United States v. Davis

• Decision Date: 11 August 2022
• Docket Number: 21-3091
• Citation: 44 F.4th 685
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paige DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

44 F.4th 685

UNITED STATES of America, Plaintiff-Appellee,

v.Paige DAVIS, Defendant-Appellant.

No. 21-3091

United States Court of Appeals, Seventh Circuit.

Argued May 27, 2022

Decided August 11, 2022

David D. Dean, Attorney, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

David Brengle, Attorney, Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.

Before St. Eve, Kirsch, and Jackson-Akiwumi, Circuit Judges.

Kirsch, Circuit Judge.

Police arrested Paige Davis, a convicted felon, on a state warrant for three counts of aggravated battery by discharge of a firearm, just outside of his residence and then entered his house without a warrant. Police conducted a limited sweep of the home and a later consensual search. The officers recovered a .22 caliber rifle which led to Davis being charged with illegally possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Davis moved to suppress the rifle on the basis that no valid exception to the warrant requirement justified the initial entry and then the later search. The district court denied Davis's motion based on the undisputed facts in the record, finding that the sweep and search were justified by three separate exceptions to the warrant requirement—a protective sweep following Davis's arrest, exigent circumstances because a child was in the home at the time of the arrest, and the voluntary consent to search by Davis's housemate, Antionette Ewing-Jimerson. Davis then pled guilty and reserved his right to appeal the denial of his motion.

On appeal, Davis argues that the sweep and search were not justified under any of the exceptions identified by the district court. We disagree, at least as to consent. Davis does not dispute the fact that Ewing-Jimerson's consent was voluntary, and the undisputed facts show that her consent was not tainted by the initial entry into the house, so suppression is unwarranted.

I

The facts are undisputed and based largely on the police report from the day of the arrest, upon which both parties relied. Paige Davis is a convicted felon with an extensive history of violent crimes, including aggravated battery of a peace officer. In October 2020, Davis was charged with three counts of aggravated battery by discharge of a firearm in violation of 720 Ill. Comp. Stat. 5/12-3.05(e)(1), and a state arrest warrant was issued. Two months later, members of the U.S. Marshals Great Lakes Regional Fugitive Task Force learned Davis's whereabouts and arrested him just outside the front door of his residence, as he was opening the door and stepping out to walk his dog.

While being arrested, Davis told the officers that there were children in the house. Officers then entered the house to conduct a limited sweep of areas where a person could be hiding, finding an eight-year-old child and a nineteen-year-old (whom Davis may have understood to be a child). During the sweep of the house, an officer observed a .22 caliber rifle standing upright in plain view in an open bedroom closet.

About 45 minutes later, well after the sweep had concluded, Antionette Ewing-Jimerson, a woman with whom Davis was living and the owner of the house, arrived home. Officers were still at the scene when she arrived. Ewing-Jimerson gave the officers oral and written consent to search the home, acknowledging that she had been advised of her rights pertaining to the search. The district court found that she was not detained during the discussion and gave her consent "without threats or promise of any kind." She talked with the officers during the search and volunteered information, including where Davis slept and his relationship to her. Davis, who was outside the house in custody and not present when Ewing-Jimerson gave her consent, never objected to the search.

The district court denied Davis's motion to suppress the rifle, finding that the warrantless entry and search were justified under three exceptions to the warrant requirement. First, the court found that the initial entry was justified as a protective sweep because the lack of detail on the ages of the children in the house suggested that a person inside the house could be a threat to officer safety, who were just outside the house. Second, the court found that entry was alternatively justified under the exigent circumstances exception because, given that the ages of the children were not known, there was a "compelling need to ensure the children's safety immediately." Finally, the court found that the subsequent search was justified based on Ewing-Jimerson's consent to search the residence because her consent was voluntary and not tainted by the initial entry, even if it were illegal.

II

We review the district court's denial of a motion to suppress under a mixed standard: legal conclusions de novo and factual findings for clear error. United States v. Terry , 915 F.3d 1141, 1144 (7th Cir. 2019). The facts in this case are not disputed, so our review is de novo. United States v. Conrad , 673 F.3d 728, 732 (7th Cir. 2012). Because we conclude that Ewing-Jimerson's valid consent justified the warrantless search, we will start and end there.

Warrantless entry is presumptively unreasonable under the Fourth Amendment, see, e.g., United States v. McGill , 8 F.4th 617, 621 (7th Cir. 2021), so it is the government's burden to show, by a preponderance of the evidence, that the search was reasonable under a valid exception to the warrant requirement, Riley v. California , 573 U.S. 373, 382, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) ; United States v. Basinski , 226 F.3d 829, 833 (7th Cir. 2000). In determining whether consent justifies a warrantless search, we determine whether the consenting individual had authority to consent to the searched spaces and whether her consent was voluntary. See United States v. Correa , 908 F.3d 208, 221–22 (7th Cir. 2018).

Davis does not dispute that Ewing-Jimerson, a co-resident in the shared home, had authority to give consent to the spaces searched in this case, see Terry , 915 F.3d at 1145, and he concedes that Ewing-Jimerson's consent was voluntary, see United States v. Thompson , 842 F.3d 1002, 1009–10 (7th Cir. 2016) (voluntariness is a question of fact). Rather, Davis argues that, even if voluntary, Ewing-Jimerson's consent was tainted by an initial, illegal entry. When the government justifies a search after illegal entry based on voluntary consent, the government must show that the illegal entry did not taint that consent. United States v. Robeles-Ortega , 348 F.3d 679, 681 (7th Cir. 2003) ; Conrad , 673 F.3d at 732–33. Here, we can assume without deciding that the initial entry was illegal, because even so, it did not taint Ewing-Jimerson's subsequent consent.

Whether consent was tainted is a question of attenuation—was the voluntary consent "obtained by exploitation of" the preceding Fourth Amendment violation, Brown v. Illinois , 422 U.S. 590, 603, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), "or instead by means sufficiently distinguishable to be purged of the primary taint," Robeles-Ortega , 348 F.3d at 681 ? To decide whether voluntary consent was sufficiently attenuated, we use a multi-factor balancing test, "including (1) the temporal proximity of the illegal entry and the consent, (2) the presence of intervening circumstances, and, particularly, (3) the purpose and flagrancy of the official misconduct." Id. (citing Brown , 422 U.S. at 603–04, 95 S.Ct. 2254 ).

The undisputed facts establish that Ewing-Jimerson's voluntary consent was sufficiently attenuated from the initial entry. First, Davis concedes that 45 minutes passed between the initial entry and Ewing-Jimerson's voluntary consent. Forty-five minutes is more than sufficient time to support attenuation. See United States v. Pineda-Buenaventura , 622 F.3d 761, 776 (7th Cir. 2010) (forty-five minutes sufficiently attenuated); United States v. Parker , 469 F.3d 1074, 1078 (7th Cir. 2006) ("a matter of minutes" sufficient). Second, it is undisputed that Ewing-Jimerson was absent from the scene during the initial entry and first arrived long after the initial sweep was over. Her arrival long after the initial entry was a clear intervening circumstance severing any causal connection between an illegal search and subsequent consent. See Robeles-Ortega , 348 F.3d at 682 (characterizing such a case where the consenting individual "was not even at home when the illegal entry was made, and therefore the force and nature of the intrusion would not have tainted his consent"). Although Davis argues that the ongoing police presence and control of the scene at the time Ewing-Jimerson arrived negates the effect of her arriving after the sweep had long been completed, the "mere presence" of officers outside of the house is not enough from which to find an illegal entry tainted a (as Davis concedes) voluntary search. United States v. Valencia , 913 F.2d 378, 382 (7th Cir. 1990).

But we do not close our attenuation inquiry without careful scrutiny of the "most important" factor—the purpose and flagrancy of the official misconduct, Conrad , 673 F.3d at 735, because with voluntariness conceded, our critical inquiry pivots from the consenting individual to whether law enforcement acted in bad faith. This inquiry matters because we do not employ the exclusionary rule when "suppression would do nothing to deter police misconduct." Davis v. United States , 564 U.S. 229, 232, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). We have previously cautioned courts that losing sight of this "fundamental notion" allows guilty people to go free due to an irrelevant bungle on the part of law enforcement. United States v. Carter , 573 F.3d 418, 422 (7th Cir. 2009) (citation omitted); see also Davis , 564 U.S. at 236, 131 S.Ct. 2419 (stating the well-settled principle that suppression of evidence is not a Fourth Amendment right nor a remedy for a Fourth Amendment violation). Rather, we employ the...