United States v. Richards

• Decision Date: 31 January 2014
• Docket Number: No. 12–3763.,12–3763.
• Citation: 741 F.3d 843
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Timothy L. RICHARDS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

741 F.3d 843

UNITED STATES of America, Plaintiff–Appellee,

v.Timothy L. RICHARDS, Defendant–Appellant.

No. 12–3763.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 31, 2013.

Decided Jan. 31, 2014.

David A. Capp, Office of the United States Attorney, Hammond, IN, Anthony W. Geller, Office of the United States, Fort Wayne, IN, for Plaintiff–Appellee.

Nicholas C. Zales, Milwaukee, WI, for Defendant–Appellant.

Before BAUER, MANION, and ROVNER, Circuit Judges.

BAUER, Circuit Judge.

Timothy L. Richards (“Richards”) was charged in a four-count indictment with (1) possession of a controlled substance with intent to distribute, (2) maintaining a residence or place for the purpose of using and distributing controlled substances, (3) possession of a firearm in furtherance of a drug trafficking crime, and (4) being a felon in possession of a firearm. Prior to trial, the district court denied Richards' first and second motions to suppress evidence that the police seized without a search warrant at the time of his arrest. After trial, a jury convicted Richards of all four charges.

Richards now appeals the district court's decisions to allow the government to introduce the seized evidence and raises two issues. First, Richards argues that the district court erred when it found that Edward Rawls (“Rawls”) had the mental capacity to consent to the warrantless search of his home. Second, Richards argues that the district court erred when it found that (1) Rawls had apparent authority to consent, and even if Rawls did not have the requisite authority to consent, (2) exigent circumstances validated the warrantless search of a bedroom Richards used in Rawls' house. For the following reasons, we find no error.

I. BACKGROUND

On December 8, 2009, Fort Wayne Police Department Officers Phillip Ealing and Dale Llewellyn attempted to execute an arrest warrant for Paul Wilson (“Wilson”). While in uniform and on patrol, the officers talked to several individuals who said they had seen Wilson frequently enter and leave a particular residence on the corner of Jefferson Boulevard and Hanna Street. When the officers arrived at the described house, Officer Llewellyn knocked on the door. An individual named “Diaz” opened the door and invited the officers inside to speak with the homeowner, Rawls.¹ The officers did not have a search warrant for the residence or an arrest warrant for anyone other than Wilson.

The officers went inside to talk with Rawls and noticed that there were several people in the house. The officers asked Rawls if Wilson was present. Rawls told the officers that he was not, but gave them permission to look around the house to confirm. The officers encountered several people as they walked through the house, but Wilson was not one of them.

When they entered the kitchen, the officers smelled the strong odor of burnt marijuana. Richards and another man sat at the kitchen table. Officer Ealing testified that he saw what he thought was a rock of crack cocaine on a plate next to a microwave oven. Officer Llewellyn testified that he saw a marijuana cigarette, a small amount of marijuana, drug paraphernalia, and plastic baggies on the kitchen table. All of these items were in plain view.

Officer Llewellyn told Richards to stand up so that he could conduct a protective pat down for weapons, but Richards refused. The verbal confrontation escalated into a physical struggle between the two; at one point, Officer Ealing used pepper spray to subdue Richards. The officers then handcuffed Richards and lifted him to his feet. When they did so, a handgun fell from his waistband onto the floor. Officer Ealing also discovered a knife sticking out of Richards' back pocket.

After the altercation with Richards, the officers called for backup and conducted a protective sweep of the house. Officer Llewellyn entered the west bedroom that Richards stayed in when he visited his uncle. The door frame had a hasp and padlock, but the door was unlocked at the time Officer Llewellyn entered the room. Once inside, he saw an open briefcase on the bed containing what he believed to be cocaine.

After the officers finished the sweep, backup arrived. Officer Llewellyn and Detective Shane Pulver asked Rawls if he would give written consent to search his home. Before giving him the consent form, Detective Pulver read Rawls his Miranda rights. Rawls was never handcuffed or detained. Officer Llewellyn then gave Rawls time to read the consent form on his own and read portions of the form aloud to Rawls as well. Officer Llewellyn informed Rawls of his right to refuse consent and his right to seek legal counsel. Rawls told the officers that he understood his rights and willingly signed the consent form on the officers' first request to do so.

Throughout their interaction with Rawls, the officers did not notice anything unusual about his behavior. Officer Ealing was a member of the Fort Wayne Crisis Intervention Team and had received specialized training on how to identify people who suffer from mental illnesses. Neither officer observed signs that Rawls was experiencing any kind of dementia or confusion. Additionally, neither officer noticedany slurred speech, detected the smell of alcohol on Rawls' breath or discerned an indication that Rawls was intoxicated.

Richards was arrested and charged with (1) possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); (2) maintaining a residence or place for the purpose of using and distributing controlled substances, in violation of 21 U.S.C. § 856(a)(1); (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (4) possession of a firearm having previously been convicted of a felony offense, in violation of 18 U.S.C. § 922(g)(1).

In July 2010, Richards filed a motion to suppress evidence seized by police during his warrantless arrest. After an evidentiary hearing, the district court found that Rawls voluntarily provided valid consent for the police to search his residence and denied Richards' motion. In February 2011, Richards filed a second motion to suppress, arguing that Rawls lacked authority to consent to a search of the bedroom that Richards used when he stayed with Rawls. After an evidentiary hearing, the district court denied Richards' second motion to suppress on two separate grounds. First, the court found that Rawls had apparent authority to consent to the search of the bedroom. The court also found that exigent circumstances justified the officers' protective sweep of the bedroom. After a jury convicted Richards of all four counts, the court sentenced him to a total term of 180 months in prison followed by six years of supervised release.

II. DISCUSSION

When reviewing a district court's denial of a motion to suppress, we review legal conclusions de novo.United States v. Huddleston, 593 F.3d 596, 600 (7th Cir.2010). We review the district court's factual findings for clear error and will only reverse if the findings leave this Court with a “definite and firm conviction that a mistake has been made.” United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir.1994). Mixed questions of law and fact are reviewed de novo.United States v. Gevedon, 214 F.3d 807, 810 (7th Cir.2000).

A. Richards' First Motion to Suppress

Richards argues that the district court erroneously found that Rawls had the requisite mental capacity to freely and voluntarily consent to the officers' search of his home. Whether an individual's consent to a search was voluntary is a factual determination, which we review for clear error. United States v. Johnson, 495 F.3d 536, 541 (7th Cir.2007). Relying on testimony from the suppression hearing, Richards argues that Rawls was incapable of consenting to the officers' search because his advanced age of eighty-six years left him a confused old man who was out of touch with reality. We disagree.

Our analysis begins with the presumption that warrantless searches or arrests within a home are unreasonable and violate the Fourth Amendment. Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). However, warrantless searches or arrests are constitutionally permissible when a “narrowly proscribed” exception exists. United States v. Bell, 500 F.3d 609, 612 (7th Cir.2007). One such exception exists when “an authorized individual voluntarily consents to the search.” United States v. Duran, 957 F.2d 499, 501 (7th Cir.1992). The government must prove “by a preponderance of evidence that consent was freely and voluntarilygiven.” United States v. Grap, 403 F.3d 439, 445 (7th Cir.2005).

It is uncontested that Rawls, as the homeowner, was authorized to consent to the officers' search of his house. Rawls unequivocally consented; when the police asked him if they could search the house, he said “search.” The issue remains, however, whether Rawls had the mental faculties about him on December 8, 2009, to freely and voluntarily consent to the search.

Whether a third-party's consent is voluntarily given to the police is a question of fact that depends on the totality of circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). To determine whether consent was provided voluntarily, we consider (1) Rawls' age, education, and intelligence; (2) whether Rawls was informed of his constitutional rights; (3) whether Rawls was in custody; (4) how long he was detained; (5) whether Rawls consented immediately or after police made several requests; and (6) whether the police used physical coercion. United States v. Strache, 202 F.3d 980, 985 (7th Cir.2000); Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041. We review these factors in the light of “objective facts, as presented to a reasonable inquirer, that would reasonably put him or her on notice that a voluntary consent could not...