United States v. Grant ( 2010 )

09-1670-cr
United States of America 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 28 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 judgment of the district court be
17 AFFIRMED.
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 This appeal returns to this panel after the district court’s
23 clarification of certain factual findings pursuant to the
24 procedure outlined in United States v. Jacobson, 15 F.3d 19,
25 22 (2d Cir. 1994) . We assume the parties’ familiarity with
26 the underlying facts, the procedural history, and the issues
27 presented for review.
28
29 On appeal, Grant challenges the district court’s denial
30 of his motion to suppress physical evidence seized from his
31 apartment and his post-arrest oral and written statements.
32 “The standard of review for evaluating the district court’s
33 ruling on a suppression motion is clear error as to the
34 district court’s factual findings, viewing the evidence in
35 the light most favorable to the government, and de novo as
36 to questions of law.” United States v. Rodriguez, 356 F.3d
37 254, 257 (2d Cir. 2004).
38
39 Grant argues that on the facts of the police entry, the
40 district court could not, as a matter of law, determine that
41 the police officers had Grant’s implied consent to enter his
42 apartment. “[I]t is well settled that consent may be
43 inferred from an individual’s words, gestures, or conduct.
44 Thus a search may be lawful even if the person giving
2
1 consent does not recite the talismanic phrase: ‘You have my
2 permission to search.’” United States v. Buettner-Janusch,
3 646 F.2d 759, 764 (2d Cir. 1981) (internal citation
4 omitted). On remand, the district court clarified that the
5 police “officers were outside of the building when they
6 identified themselves to Grant as police officers.” Grant
7 responded to the identification and request to talk by
8 admitting the officers into the building and turning toward
9 his apartment. As the officers followed, Grant entered his
10 apartment without impediment or objection to the entry of
11 the police. Grant’s conduct during this interaction,
12 coupled with the undisputed absence of force, confirms the
13 district court’s conclusion of implied consent. We affirm
14 with respect to the police entry.
15
16 Grant further argues that the district court clearly
17 erred in finding that he gave oral consent to the officers
18 to search for a gun after they entered his apartment.
19 “Assessments of the credibility of witnesses are the
20 province of the district court and we are not entitled to
21 overturn those assessments. Where there are two permissible
22 views of the evidence, the court’s choice between them
23 cannot be deemed clearly erroneous.” United States v.
24 Maldonado-Rivera, 922 F.2d 934, 972 (2d Cir. 1990) (internal
25 citation omitted). Although the district court articulated
26 serious concerns about when and where Grant provided written
27 consent to the search, it explicitly credited Sergeant
28 Murphy’s testimony regarding Grant’s provision of oral
29 consent. Given the district court’s reliance on (i)
30 Murphy’s testimony and (ii) Grant’s post-arrest statements
31 indicating that he gave oral consent to the search of his
32 apartment, we cannot find clear error in the district
33 court’s findings regarding Grant’s oral consent.
34
35 Having considered all of Grant’s arguments on this
36 appeal and finding them to be without merit, we AFFIRM the
37 judgment of the district court.
38
39 FOR THE COURT:
40 CATHERINE O’HAGAN WOLFE, CLERK
41
3