United States v. Grant ( 2010 )


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  •          09-1670-cr
    United States v. Grant
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
    ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
    PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
    DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
    ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
    SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
    1            At a stated term of the United States Court of Appeals
    2       for the Second Circuit, held at the Daniel Patrick Moynihan
    3       United States Courthouse, 500 Pearl Street, in the City of
    4       New York, on the 8 th day of April, two thousand ten.
    5
    6       PRESENT: DENNIS JACOBS,
    7                         Chief Judge,
    8                GERARD E. LYNCH,
    9                         Circuit Judge,
    10                JANE A. RESTANI, *
    11                         Judge.
    12
    13       - - - - - - - - - - - - - - - - - - - -X
    14       UNITED STATES OF AMERICA,
    15
    16                    Appellee,
    17
    18                    -v.-                                         09-1670-cr
    19
    20       RICHARD A. GRANT,
    21
    22                Defendant-Appellant.
    23       - - - - - - - - - - - - - - - - - - - -X
    24
    25       APPEARING FOR APPELLANT:               Colleen P. Cassidy, Federal
    *
    The Honorable Jane A. Restani, Chief Judge of the
    United States Court of International Trade, sitting by
    designation.
    1                              Defenders of New York, Inc., New
    2                              York, NY.
    3
    4   APPEARING FOR APPELLEE:    Carrie H. Cohen (Michael
    5                              Bosworth, on the brief), for
    6                              Preet Bharara, United States
    7                              Attorney for the Southern
    8                              District of New York, New York,
    9                              NY.
    10
    11
    12        Appeal from a judgment of the United States District
    13   Court for the Southern District of New York (McMahon, J.).
    14
    15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
    16   AND DECREED that the matter is REMANDED to the district
    17   court for clarification of the Findings of Fact.
    18
    19        Defendant-appellant Richard A. Grant appeals from a
    20   judgment of conviction entered in the United States District
    21   Court for the Southern District of New York (McMahon, J.).
    22   We assume the parties’ familiarity with the underlying
    23   facts, the procedural history, and the issues presented for
    24   review.
    25
    26        In part, Grant’s appeal challenges the district court’s
    27   denial of a motion to suppress physical evidence seized from
    28   his apartment, and his post-arrest oral and written
    29   statements. “The standard of review for evaluating the
    30   district court’s ruling on a suppression motion is clear
    31   error as to the district court’s factual findings, viewing
    32   the evidence in the light most favorable to the government,
    33   and de novo as to questions of law.” United States v.
    34   Rodriguez, 
    356 F.3d 254
    , 257 (2d Cir. 2004).
    35
    36        Grant argues that, on the basis of the relevant
    37   Findings of Fact, the district court could not, as a matter
    38   of law, determine that the police officers had Grant’s
    39   implied consent to enter his apartment. “The government has
    40   the burden of proving consent voluntarily given by a
    41   preponderance of the evidence.” United States v. Calvente,
    42   
    722 F.2d 1019
    , 1023 (2d Cir. 1983). “[I]t is well settled
    43   that consent may be inferred from an individual’s words,
    44   gestures, or conduct. Thus a search may be lawful even if
    2
    1   the person giving consent does not recite the talismanic
    2   phrase: ‘You have my permission to search.’” United States
    3   v. Buettner-Janusch, 
    646 F.2d 759
    , 764 (2d Cir. 1981)
    4   (internal citation omitted). “The standard for measuring
    5   the scope of a suspect’s consent under the Fourth Amendment
    6   is that of ‘objective’ reasonableness--what would the
    7   typical reasonable person have understood by the exchange
    8   between the officer and the suspect?” Florida v. Jimeno,
    9   
    500 U.S. 248
    , 251 (1991). In evaluating a person’s words,
    10   gestures, or conduct under the objective reasonableness
    11   standard, “the totality of the circumstances [] must be
    12   considered.” United States v. Garcia, 
    56 F.3d 418
    , 423 (2d
    13   Cir. 1995).
    14
    15        To enter Grant’s apartment, the police had to pass
    16   first through the outer door of the building, into the lobby
    17   or hallway leading to the apartment. It is not altogether
    18   clear from the Findings of Fact whether the police were
    19   standing inside (or outside) the outer door when they asked
    20   to talk with Grant and he turned away toward his apartment.
    21   That uncertainty may have bearing on the analysis and the
    22   scope of any appellate ruling. Accordingly, we respectfully
    23   request that the district court answer the following
    24   question within thirty days of the issuance of the mandate,
    25   if practicable: Were the police officers outside the outer
    26   door of Grant’s building when they identified themselves and
    27   asked to speak with Grant?
    28
    29        The district court found the following facts with
    30   respect to the police entry:
    31
    32            12. The officers testified that Grant came to the
    33            door after they rang the bell. Grant testified
    34            that he never left his apartment, and that when he
    35            opened his door to look out and see who was at the
    36            door, the officers were already in the hallway in
    37            front of his apartment. I credit the officers’
    38            testimony that Grant let them into the building.
    39
    40            13. Sgt. Murphy identified the officers to Grant
    41            as police and told him that they wanted to talk to
    42            him.
    43
    44            14.   Grant turned from the front door and walked
    3
    1            away from the officers toward his apartment. The
    2            officers followed him down the hall. Grant
    3            neither invited the officers to follow him nor did
    4            he physically impede the officers from following
    5            him.
    6
    7            15. None of the officers spoke to Grant as they
    8            followed him down the hall, and Grant did not
    9            speak to the officers.
    10
    11            16. Grant walked into his apartment. The
    12            officers followed him in. Grant neither invited
    13            the officers to follow him into the apartment nor
    14            physically impeded the officers from following him
    15            into the apartment.
    16
    17            17. Grant never told the officers in words that
    18            they could enter his apartment.
    19
    20   If the sequence of these Findings of Fact tracks the
    21   chronology of events, it would seem that the police officers
    22   already had entered the common area of the building at the
    23   time of their identification and request to speak.    On the
    24   other hand, the district court’s Conclusions of Law seem to
    25   indicate that the police officers remained outside the outer
    26   door of the building when they identified themselves and
    27   requested to speak with Grant:
    28
    29            I have concluded from the evidence adduced at the
    30            hearing that Grant met the officers at the front
    31            door of the building, the officers identified
    32            themselves, Sgt. Murphy told defendant that they
    33            (the police) wanted to talk to him, Grant admitted
    34            the officers into the building, then turned around
    35            and walked ahead of them into his apartment.
    36
    37   Our question can be briefly answered, but any supplemental
    38   findings, observations, and conclusions (bearing upon the
    39   entry of the police to the building and the apartment) would
    40   be welcome and may be helpful.
    41
    42        Pursuant to the procedure outlined in United States v.
    43   Jacobson, 
    15 F.3d 19
    , 22 (2d Cir. 1994), we hereby remand the
    44   case to the district court for the limited purpose of
    4
    1   resolving this ambiguity, and we instruct the Clerk of the
    2   Court to issue the mandate forthwith. Within ten days of the
    3   district court’s filing of its written answer to this inquiry,
    4   either party to the proceedings may restore the case to this
    5   panel by giving notice to the Clerk of the Court. See 
    id.
    6
    7        The matter is hereby REMANDED to the district court for
    8   a response to this Court’s inquiry.
    9
    10                               FOR THE COURT:
    11                               CATHERINE O’HAGAN WOLFE, CLERK
    12
    5