United States v. Carr ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0483n.06
Filed: July 11, 2006
No. 05-6162
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE MIDDLE
v. ) DISTRICT OF TENNESSEE
)
BRIAN CARR, )
)
Defendant-Appellee. )
)
________________________________________ )
BEFORE: GILMAN and GRIFFIN, Circuit Judges, and DUGGAN, District Judge.*
PER CURIAM.
The United States of America (“government”) appeals the district court’s grant of defendant
Brian Carr’s motion to suppress evidence. Specifically, the government contends that the district
court improperly granted defendant’s motion to suppress certain incriminating evidence procured
during an lawful search and seizure by law enforcement officers because the law enforcement
officers had consent granted to them by a third-party guest. Conversely, defendant contends that
the search was effectuated without the requisite consent.
For the reasons set forth below, we affirm.
*
The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 05-6162
United States v. Carr
I.
On January 14, 2005, Chief Deputy Sheriff Wayland Cothron and Michael Thompson, the
Director of the 15th District Drug and Violent Crime Task Force (“Task Force”), responded to a
dispatcher’s call concerning a motorist requesting assistance at a grocery store parking lot in
Hartsville, Tennessee. When the officers arrived at the parking lot, they found Clinton Wix standing
near a gray Chevrolet pickup truck motioning for the officers to stop. Wix advised Cothron that he
had locked his keys in the truck. Upon Cothron’s request, Wix completed a release of liability form
authorizing Cothron to unlock the truck.
Cothron noticed that there were no keys in the ignition of the truck, and the truck was parked
near the front of the parking lot rather than near the store’s entrance. Although Wix said that he was
at the store to buy diapers, Cothron was suspicious of the story and felt the hood of the car, finding
it cool to the touch. In response to Cothron’s continued questioning, Wix affirmed that it was his
truck. Although Thompson observed that the licence plates were from Trousdale County, a small
county, he did not recognize Wix as a resident of that county. Thompson pressed Wix for more
information, and he then stated that it was his brother’s truck. Thompson asked who his brother
was, and Wix responded that it was the defendant. Thompson knew that Wix was not defendant’s
brother.
Wix then stated that defendant, Brian Carr, had granted him permission to come and get the
truck. The officers became concerned that Wix was trying to steal the truck and requested
identification. Wix asked them to forget about helping him. Wix then admitted lying to the officers
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about driving the truck to the parking lot and locking the keys in it. In response to the officers’
questioning, Wix insisted that he was not trying to steal the truck and urged the officers to verify this
information with Scotty Mungle, who Wix said lived with defendant. Wix then directed them to a
blue Chevrolet car parked nearby.
The officers approached the car and spoke with Mungle. Mungle told the officers that he,
Wix, and a woman named Brandi Miller drove to town to purchase some diapers, and that he needed
to get “some stuff” out of defendant’s truck. Mungle advised the officers that he was working on
a building at defendant’s home and that he lived with defendant. Mungle also stated that he had
defendant’s permission to access the truck and was not trying to steal it, but had locked his keys in
defendant’s truck and was trying to get them out in order to get into a shed at defendant’s home.
Wix was arrested for filing a false police report. Miller, the driver of the blue car, was
arrested, subsequent to a police check, for an outstanding warrant and for possession of a small
amount of methamphetamine and Xanax in her purse. At some point during these interactions,
additional officers arrived to take Wix and Miller into custody. Thompson and Cothron continued
to question Mungle about whether he had permission to access defendant’s truck and noted that he
appeared under the influence. At the suppression hearing, Thompson testified that he suspected
Mungle was on probation when he first saw him. Cothron testified that they did not have a basis to
charge Mungle with anything at the parking lot, but nevertheless continued to investigate him for
possible attempted vehicular theft or burglary. The officers did not specifically tell Mungle that he
was free to leave, and, with the departure of Wix and Miller, Mungle lacked transportation.
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After the officers informed him that he was under investigation for attempted vehicular theft,
Mungle advised the officers that he possessed a key to defendant’s home.1 Thompson asked Mungle
if he had belongings at defendant’s home, and Mungle replied that he did. Thompson then requested
that Mungle accompany them to defendant’s home to show them that he had a key to defendant’s
home, which Mungle agreed to do. Thompson made this request knowing that defendant was at
work. Mungle testified, by way of affidavit, that he did not feel he had a choice but to comply
because Thompson advised him that he would “have to show him proof that [he] had a right to be
in the home or [he] was going to be arrested for auto theft[.]”
For safety reasons, the officers patted Mungle down on two occasions prior to driving to
defendant’s home. During the course of one of the pat-downs, Thompson found a small
methamphetamine spoon on Mungle. Sometime after Thompson discovered the spoon, the officers
transported Mungle to defendant’s home. As Mungle directed the officers to defendant’s home, the
officers discussed various subjects with Mungle, including his status as a probationer. When they
arrived at defendant’s house, Mungle opened the basement door with a key and entered the
basement. The officers followed him inside. After entering the basement, Thompson recognized
1
The Task Force had previously searched defendant’s home. On April 15, 2004, Task Force
officers went to defendant’s home and requested permission to search his home for evidence of the
manufacture of methamphetamine and for the presence of another man for whom there were
outstanding arrest warrants. Defendant consented to the search, and the officers subsequently
observed several firearms and suspected methamphetamine containers in defendant’s house. On
May 10, 2004, officers returned to defendant’s home with a search warrant authorizing the seizure
of the firearms. The fruits of these searches, and the January 14, 2005 search, formed the basis for
the indictments against defendant.
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No. 05-6162
United States v. Carr
the smell of methamphetamine. Mungle pointed to some clothing on the washing machine that he
said belonged to him. The officers did not verify this claim, but, instead, asked Mungle to show
them where he slept. Mungle stated that he slept on the couch in the upstairs living room.
Thompson, in turn, requested that Mungle show them the couch. As they walked through the house
en route to the couch, Thompson observed a white powder residue on the kitchen table, a turkey
baster, a Pyrex dish, a pill crusher, a fan, and a drying instrument, all of which he recognized as
equipment often used in the manufacture of methamphetamine.
Only after being in the basement and walking through the upstairs in order to view the couch,
did Thompson advise Mungle that he was satisfied that Mungle had authority to access the home
and was not trying to steal the defendant’s truck. Thompson further informed Mungle that he had
observed evidence of methamphetamine manufacturing and asked Mungle for permission to search
the home. Mungle refused to consent. Thompson advised Mungle that he was on probation and
that it was a violation of the conditions to refuse to permit a search of his residence, but Mungle
refused any further search because the house did not belong to him. The officers then attempted to
contact defendant on the phone at his place of work.
Thompson placed Mungle under arrest and advised him of his Miranda rights in order to
secure the premises while the officers procured a search warrant for the residence. Thompson
directed another officer to have a canine search defendant’s truck at the grocery store parking lot,
without a warrant, based on the methamphetamine-related evidence found at the house. Thompson
also made a protective sweep of the house, and, upon Mungle’s direction, fetched him a glass of
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water. During the course of both activities, Thompson observed additional evidence of
methamphetamine manufacture.
A thorough search of the home followed the procurement of a warrant. An officer took a
statement from Mungle, recounting the day’s events, and noted that Mungle appeared of normal
intelligence and alert at the time of the statement, but was “excited and very, very nervous.” When
defendant returned to Hartsville from work, he was arrested and transported to his home where the
search was being executed.
On February 22, 2005, defendant was indicted for one count of possessing an unregistered
machine gun in violation of 26 U.S.C. § 5841, one count of possessing thirty-six other firearms as
an unlawful user of controlled substances in violation of 18 U.S.C. § 924(a)(2), one count of
conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846, one count of
manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1), one count of possessing the
equipment to manufacture methamphetamine in violation of 21 U.S.C. § 843(a)(6) and (d)(2), and
one count of possessing hydrocodone in violation of 21 U.S.C. § 841(a)(1).
On May 23, 2005, defendant filed a motion to suppress the evidence seized on January 14,
2005. The district court held evidentiary hearings on June 9, 2005, and June 17, 2005, after which
it granted defendant’s motion to suppress. The district court found that the third-party consent of
Scotty Mungle for police officers to enter the home of defendant was involuntary. Further, the
district court found that Mungle had not consented to the search. As a result, the district court
suppressed evidence resulting from the January 14, 2005, search of defendant’s truck and home, as
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well as defendant’s statements at the time of his arrest pursuant to the fruit of the poisonous tree
doctrine.
This timely appeal followed.
II.
Reviewing the denial, or the grant, of a motion to suppress is a mixed question of fact and
law. United States v. Hurst, 228 F.3d 751, 756 n.1 (6th Cir. 2000). This court reviews the district
court’s findings of fact for clear error and the district court’s conclusions of law de novo. United
States v. Dillard, 438 F.3d 675, 680 (6th Cir. 2006). A factual finding is clearly erroneous when,
although there may be evidence to support it, the reviewing court, utilizing the entire evidence, “is
left with the definite and firm conviction that a mistake has been committed.” United States v.
Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999). The reviewed evidence must be viewed “in
the light most likely to support the district court’s decision.” Dillard, 438 F.3d at 680 (internal
quotation marks and citations omitted). Finally, “‘where there are two permissible views of the
evidence’ the district court’s conclusions ‘cannot be clearly erroneous.’” United States v. Worley,
193 F.3d 380, 384 (6th Cir. 1999) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574
(1985)).
The Fourth Amendment prohibits searches without a warrant or probable cause with few
exceptions, one of which is valid consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
The consent to search must be “freely and voluntarily given.” Id. at 222 (quoting Bumper v. North
Carolina, 391 U.S. 543, 548 (1968)). Valid consent may be given by parties other than the
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defendant, including “‘a third party who possessed common authority over or other sufficient
relationship to the premises or effects sought to be inspected.’” United States v. Morgan, 435 F.3d
660, 663 (6th Cir. 2006) (quoting United States v. Matlock, 415 U.S. 164, 171 (1974)).
It is uncontested that “it is the government’s burden, by a preponderance of the evidence, to
show through ‘clear and positive testimony’” that Mungle’s valid and voluntary consent to the
search was obtained. Worley, 193 F.3d at 385 (internal citations and quotation marks omitted). This
court has repeatedly noted “that not any type of consent will suffice, but instead, only consent that
is ‘unequivocally, specifically, and intelligently given, uncontaminated by any duress and
coercion.’” Id. at 386 (quoting United States v. Tillman, 963 F.2d 137, 143 (6th Cir.1992)); United
States v. Scott, 578 F.2d 1186, 1188-89 (6th Cir. 1978) (holding that the government bears the
burden of proving “by clear and positive testimony” that consent was voluntary, unequivocal,
specific, and intelligent).
The government argues that Mungle voluntarily consented to the presence of the officers in
Carr’s home, and, thus, the district court clearly erred by granting defendant’s motion to suppress.
Conversely, defendant responds that the district court correctly determined that Mungle did not
voluntarily consent to the search. Defendant urges us to affirm.
Whether Mungle consented to the officers’ search of defendant’s home entails a fact-specific
inquiry. United States v. Carter, 378 F.3d 584, 588 (6th Cir. 2004) (“[E]ach such determination is
fact-specific, and there is no magic formula or equation for determining consent in the abstract.”)
(internal quotation marks and citation omitted). So long as the consent satisfies the foregoing
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factors, it may be granted by verbal or non-verbal communication. Id. (holding that where “officers
specifically asked if they could come in,” and defendant “was not threatened, coerced, or tricked,”
opening the door in response and standing aside to allow officers’ entry was nonverbal consent).
Nevertheless, “[e]ven a spoken assent to search may be too ambiguous to establish consent in certain
circumstances.” Id. (citing Worley, 193 F.3d at 386 (6th Cir. 1999) (holding that “you’ve got the
badge, I guess you can [search]” is not consent where context was intimidating and defendant
testified that he felt he had no choice)).
“In determining whether a defendant’s will was overborne in a particular case, the [Supreme]
Court has assessed the totality of all the surrounding circumstances–both the characteristics of the
accused and the details of the interrogation.” Schneckloth, 412 U.S. at 226 (footnote omitted). This
court has also considered “the age, intelligence, and education of the individual; whether the
individual understands the right to refuse to consent; and whether the individual understands his or
her constitutional rights.” United States v. Ivy, 165 F.3d 397, 402 (6th Cir. 1998). Additionally, a
court “should consider the details of the detention, including the length and nature of detention; the
use of coercive or punishing conduct by the police, and indications of ‘more subtle forms of coercion
that might flaw [the consenter’s] judgment.’” Id. (quoting United States v. Watson, 423 U.S. 411,
424 (1976)) (citation omitted). No single factor is dispositive of the analysis. Schneckloth, 412 U.S.
at 226.
Here, the government contends that the totality of the facts and circumstances do not
establish that Mungle’s consent was involuntary, noting that: custody, or the threat of custody does
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not automatically invalidate the voluntariness of consent; Mungle’s fear of arrest did not invalidate
his consent; the later refusal to consent demonstrated that Mungle was not “overborne” by the
officers; the length of time that Mungle was detained was not coercive in its duration; although
Mungle was patted down twice, he was not in handcuffs, and rode in the front seat of the police
vehicle; and, although Cothron suspected that Mungle was under the influence, Mungle was able
to understand the events that transpired.
In assessing the totality of the testimony and circumstances, the district court specifically
found, with respect to Mungle’s consent, that: (1) both Mungle and Thompson knew that Mungle
was a probationer from Thompson’s agency, a fact contributing to subtle coercion; (2) the police had
arrested Mungle’s two companions, leaving Mungle isolated; (3) both Mungle and Wix were under
the influence; (4) the police performed two pat-downs of Mungle in the course of the “investigation”
prior to entering Carr’s home; (5) during the course of the pat-down, Thompson, the head of the
agency of which Mungle was on probation from, found a small methamphetamine spoon, and then
requested that Mungle cooperate and take him to the home of a known criminal suspect; and (6)
when Mungle was positively asked for his consent, he refused. Based on these facts and
circumstances, the district court concluded that Mungle’s alleged consent was not voluntary,
unequivocal, specific, and intelligent.
Because the issue of consent is a factual determination that we review with a high degree of
deference, we affirm. Carter, 378 F.3d at 589 (6th Cir. 2004) (“[P]recisely because testimony often
becomes more ambiguous when reduced to toneless words on a page, we defer to the district court’s
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factual finding.”); Anderson, 470 U.S. at 574 (“Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.”). The district court’s
view of the evidence was permissible, and, therefore, it is not clearly erroneous.
III.
For these reasons, we affirm the order of the district court.
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