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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
Document Info
Docket Number: 09-1670-cr
Judges: Jacobs, Lynch, Restani
Filed Date: 4/8/2010
Precedential Status: Non-Precedential
Modified Date: 10/19/2024