United States v. Gary McMullin ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3477
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Gary McMullin, *
*
Defendant - Appellant. *
___________
Submitted: April 15, 2009
Filed: August 17, 2009
___________
Before MURPHY, BRIGHT, and BYE, Circuit Judges.
___________
BRIGHT, Circuit Judge.
Defendant-appellant Gary McMullin appeals his conviction for being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), challenging the
district court’s denial of his motion to suppress firearms evidence discovered during
a United States Marshal’s second entry into McMullin’s house. McMullin asserts that
the marshal lacked legal authority to re-enter his house, while the government
contends that McMullin never withdrew the consent he granted for the initial entry.
Having jurisdiction pursuant to 28 U.S.C. § 1291, we reverse the district court and
remand for further proceedings.
I. Factual Background
United States Marshals Sean Newlin and Dave Davis had received an
assignment to locate Daryl Crowder, for whom the state of Illinois had issued several
arrest warrants in 2006. During the assignment, Marshal Newlin learned that Crowder
had placed telephone calls from a residence in Missouri. After checking the address,
Marshal Newlin discovered that another sex offender and felon, McMullin, resided
there.
On October 10, 2007, Marshals Newlin and Davis drove to McMullin’s
residence in an attempt to locate Crowder. The marshals did not have a search warrant
for the house. They arrived early in the morning in an unmarked vehicle but wore
jackets marked “U.S. Marshal.” As the marshals drove up the driveway to the
residence, Marshal Newlin observed a person looking out of the front window of the
house.
After stopping the vehicle, Marshal Davis walked around to the back of
McMullin’s house, while Marshal Newlin headed toward the front of the house.
Around this time, Marshal Newlin heard a person yell from within the house, “The
U.S. Marshals are here.” Marshal Newlin climbed the steps to the front door, which
McMullin opened. Marshal Newlin recognized him from a photo on the sex offender
registry website.
Marshal Newlin and McMullin exchanged greetings. Marshal Newlin asked
if anybody else was in the house. McMullin replied, “You know, I’m just having
coffee with my uncle.” Marshal Newlin asked, “May I come in and talk with you?”
McMullin replied, “Yeah, sure, come on in. We’re just having coffee.” McMullin
stepped back inside the house and started walking through the house. Marshal Newlin
followed him down a hallway to a kitchen table. As they were walking down the hall,
Marshal Newlin again asked if anyone else was in the house. McMullin replied, “No.
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I’m just having coffee with my uncle.” Marshal Newlin asked for the uncle’s name
and McMullin responded, “Carroll.”
When they arrived at the kitchen, Marshal Newlin saw an older man sitting at
the table. McMullin said, “This is my uncle. We’re just sitting here having coffee.”
Marshal Newlin again asked if anyone else was present in the house. McMullin
replied, “No. It’s just my uncle and I.” However, Marshal Newlin noticed three cups
of coffee on the table and asked about the third cup. McMullin reiterated that only he
and his uncle were in the house. This conversation lasted between two to three
minutes.
At this point, Marshal Newlin heard Marshal Davis yell from outside the house,
“Get down. Get down on the ground.” Marshal Newlin attempted to leave the house
through a back door, but could not find his way through the house. McMullin showed
Marshal Newlin the way to the back door.
Marshal Newlin emerged from the house into the backyard and saw Marshal
Davis and Daryl Crowder in an area near the back door. Crowder was prone on the
ground, with his hands on top of his head. Marshal Newlin asked Crowder for his
identity; Crowder replied with his correct name.
McMullin also emerged from the back door of the house. Marshal Newlin
asked McMullin about Crowder’s identity. McMullin first said he did not know, and
then said his name was Thomas Junior. Marshal Newlin told McMullin to turn around
because he was being detained. McMullin complied and Marshal Newlin handcuffed
him. Marshal Newlin again asked about the man’s identity. McMullin said that “he
told me his name was Thomas Junior.” Marshal Newlin then warned McMullin about
obstruction of justice.
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Although it was an early morning in October, McMullin wore only gym shorts
and sandals. Marshal Newlin then said, “Well, let’s go back into the house and talk.”
Marshal Newlin had to physically bring the handcuffed McMullin into the house
before following him into the breakfast area.
By this time, Evelyn Moore, McMullin’s aunt, also sat at the kitchen table.1
Marshal Newlin asked McMullin if he felt comfortable talking in front of his aunt and
uncle. McMullin replied, “Yeah, that’s fine, I’ll talk. You know I don’t have a
problem talking in front of them.” Marshal Newlin told McMullin that he knew the
identity of the man in the backyard. McMullin dropped his shoulders and said, “Yeah,
that’s Daryl Crowder.”
When he returned to the kitchen, Marshal Newlin noticed some ammunition in
an ashtray sitting on a desk. He then told McMullin that he had seen the bullets and
asked whether there were guns in the house. McMullin said, “Yes, there are,”
motioning his head toward a wall by the kitchen. Marshal Newlin looked in that
direction and observed seven long guns lined up along the wall. Additionally, Moore
told Marshal Newlin about the location of a handgun in a desk drawer. The marshals
seized these firearms, which Marshal Newlin had not noticed during his first visit to
the house. Marshal Newlin had not drawn his service weapon during these events, nor
did he give Miranda warnings to McMullin.
II. Procedural History
Following an investigation, a grand jury indicted McMullin for being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). After his initial
appearance, McMullin moved to suppress the firearms evidence seized from his
1
The record does not clearly reveal when the aunt entered McMullin’s kitchen.
The third coffee cup may have been hers, or possibly Crowder’s. The record does not
disclose this information.
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house, asserting that the search violated his reasonable expectation of privacy in his
house as guaranteed by the Fourth Amendment to the United States Constitution.
In the motion to suppress, McMullin argued that Marshal Newlin had no legal
authority to be in his house. In his reply to the government, McMullin further stated
that Marshal Newlin’s re-entry fell outside the scope of consent. Meanwhile, the
government argued that McMullin gave Marshal Newlin consent to enter the house
and never revoked it. At the suppression hearing, the government presented its
evidence, and McMullin testified on his own behalf. He testified, contrary to his
grand jury testimony, that he never gave consent for the marshal to enter his house.
Instead, McMullin stated that just after Marshal Newlin arrived at his front door,
McMullin heard shouts coming from the rear of the house. After hearing this
shouting, Marshal Newlin allegedly drew his service pistol and ran into the house,
looking for the back door.
In his Report and Recommendation, the magistrate judge recommended
denying McMullin’s motion to suppress and found McMullin’s version of the facts
to lack credibility. McMullin filed an objection to the report. In June 2008, the
district court issued its order, adopting the magistrate’s recommendation and denying
McMullin’s motion to suppress. McMullin filed a motion to reconsider, asking the
district court to accept Marshal Newlin’s report on the firearms seizure as additional
evidence, and then raised a new ground for suppression: that the consent did not
continue for Marshal Newlin to re-enter the house. In July 2008, the district court
denied McMullin’s motion to reconsider.
On July 24, 2008, McMullin pleaded guilty to being a felon in possession of a
firearm as charged in the indictment. However, McMullin reserved his right to appeal
the district court’s ruling on his motion to suppress.
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The district court sentenced McMullin to fifty-six months’ imprisonment, three
years’ supervised release, and a $100 special assessment. McMullin timely appealed,
arguing, among other things, that Marshal Newlin had no legal authority to re-enter
McMullin’s house.
III. Discussion
The dispositive issue presented on appeal is whether the second warrantless
entry into McMullin’s house by Marshal Newlin violated the Fourth Amendment. We
turn to that issue.
This Court reviews factual findings underlying the district court’s denial of a
motion to suppress for clear error and the question of whether the Fourth Amendment
has been violated de novo. See United States v. Hughes, 517 F.3d 1013, 1016 (8th
Cir. 2008).
In this case, it is important to recall the Fourth Amendment to the United States
Constitution:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.
This amendment fundamentally protects a person from unreasonable searches. Id.
In particular, Fourth Amendment law recognizes the inherent sanctity of a
person’s house. “The caselaw has consistently recognized that considerably more
protection is to be afforded a home than other premises. The leading decisions . . . are
each heavily predicated upon the ancient precept that ‘a man’s home is his castle.’”
United States v. Agrusa, 541 F.2d 690, 700 (8th Cir. 1976); see also Payton v. New
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York, 445 U.S. 573, 588-90 (1980). Therefore, “to search a private place, person, or
effect, law enforcement must obtain from a judicial officer a search warrant supported
by probable cause.” United States v. Williams, 346 F.3d 796, 798 (8th Cir. 2003).
It is therefore well-established that the police may not invade a person’s house
without a warrant except under very limited circumstances, such as the presence of
exigent circumstances or an occupant’s consent. Exigent circumstances permit
warrantless entries when “lives are threatened, a suspect’s escape is imminent, or
evidence is about to be destroyed.” United States v. Ball, 90 F.3d 260, 263 (8th Cir.
1996). Additionally, the consent of a house’s occupant makes a warrantless entry into
a house reasonable for the purposes of the Fourth Amendment. See United States v.
Spotted Elk, 548 F.3d 641, 652 (8th Cir. 2008).
In this circuit, we recognize that when an occupant of the house gives consent
for entry, he must make an unequivocal act or statement to indicate the withdrawal of
the consent. See United States v. Sanders, 424 F.3d 768, 774 (8th Cir. 2005).
“Withdrawal of consent need not be effectuated through particular ‘magic words,’ but
an intent to withdraw consent must be made by unequivocal act or statement.” United
States v. Gray, 369 F.3d 1024, 1026 (8th Cir. 2004). If equivocal, police officers may
reasonably continue their search in the premises entered pursuant to the initial grant
of authority. See Sanders, 424 F.3d at 774.
Additionally, “[t]he standard for measuring the scope of a [person’s] consent
under the Fourth Amendment is that of ‘objective’ reasonableness—what would the
typical reasonable person have understood by the exchange between the officer and
the suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991). In assessing the scope of
a person’s consent, we must examine the totality of the circumstances, which includes
the language of a person’s consent and his actions during the officers’ search. See
United States v. Starr, 533 F.3d 985, 996 (8th Cir. 2008).
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After reviewing de novo the constitutionality of the search of McMullin’s
house, we conclude that the search violated McMullin’s Fourth Amendment rights.
Neither party contests on appeal that Marshal Newlin received McMullin’s consent
to enter the house the first time, making the initial warrantless entry valid. In dispute,
however, is Marshal Newlin’s second entry into McMullin’s house, following the
handcuffing of McMullin in the backyard.2
The government contends that McMullin’s initial consent continued to the
second entry because McMullin never effectively withdrew the consent. The cases
relied upon by the government for this proposition, however, are distinguishable in
that Marshal Newlin actually left and then re-entered the house after detaining
McMullin in the backyard, having to physically bring him into the house. For
example, in United States v. Parker, 412 F.3d 1000, 1001 (8th Cir. 2005), the officers
remained in the house during the entire search. In Sanders, 424 F.3d at 771-72, the
agent also never left the hotel room being searched. The government further relies on
United States v. Diaz, 814 F.2d 454, 459 (7th Cir. 1987), in which the Seventh Circuit
permitted a second entry when the officer originally entered with consent, established
the existence of probable cause to effectuate an arrest or search, and momentarily
stepped out to seek help from other officers. Here, however, Marshal Newlin did not
leave McMullin’s house to seek help, did not establish probable cause to search the
house, and in fact fulfilled his visit’s purpose by arresting Crowder and detaining
McMullin outside of the house in the backyard.
None of these cases support the government’s proposition that Marshal Newlin
had legal authority to re-enter McMullin’s house under the circumstances. In fact, the
2
Although McMullin does not claim Marshal Newlin arrested him in the
backyard, the detention of McMullin may well have required Miranda warnings,
which were not given, because Marshal Newlin talked to McMullin about obstruction
of justice and handcuffed him. However, we do not rest our decision on whether the
handcuffing constituted an arrest.
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language of one of the cases cited by the government does not necessarily support the
second entry in this case. See id. (“We do not intend to suggest by our analysis that
one consensual entry means that law enforcement agents may thereafter enter and exit
a home at will.”).
The precise issue here is not withdrawal of consent, but whether, as McMullin
argues, a new consent was required for the second entry. By the time Marshal Newlin
sought re-entry into McMullin’s house, it is undisputed that the marshals had already
completed their task of arresting Crowder in the backyard. There was no necessity or
legal basis for the officer to re-enter the house. Under the circumstances of this case,
we determine that Marshal Newlin’s re-entry exceeded the scope of McMullin’s
consent and therefore violated the Fourth Amendment prohibition against
unreasonable entries into a person’s house. Cf. United States v. Jones, 269 F.3d 919,
929 (8th Cir. 2001) (determining that a trooper’s detention of defendant “past the
point necessary to complete his traffic stop investigation exceeded the scope of a
lawfully initiated traffic stop.”).
We have examined the second entry cases in this circuit, none of which support
a second, warrantless entry under the facts presented by the record. For example, in
United States v. Carter, 854 F.2d 1102, 1104-06 (8th Cir. 1988), the officers first
entered the motel room without a search warrant but with consent, and a second time,
pursuant to a warrant issued based on plain view observation of cocaine on a table.
Carter suggests that the proper procedure here should have been to secure a search
warrant prior to the second entry. Carter also discusses exigent circumstances relating
to an officer’s entry to a motel room to obtain clothes, mentioning similar
circumstances in United States v. Gilbert, 774 F.2d 962, 963-64 (9th Cir. 1985), but
these entries were made pursuant to consent as well. See 854 F.2d at 1106.
Importantly, however, Carter notes the expectation of privacy associated with a
person’s house. Id. at 1105. Furthermore, in United States v. Weston, 443 F.3d 661,
665 (8th Cir. 2006), a first search occurred pursuant to consent, while a subsequent
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search followed the issuance of a search warrant. Finally, in United States v.
Lakoskey, 462 F.3d 965, 974 (8th Cir. 2006), this Court concluded that an officer’s
second warrantless entry without consent or exigent circumstances violated the Fourth
Amendment.
The government further argues that exigent circumstances, in the form of
Marshal Newlin’s safety, made the re-entry reasonable under Fourth Amendment law.
Although officer safety indeed constitutes exigent circumstances permitting a
warrantless search, see United States v. Hill, 430 F.3d 939, 941 (8th Cir. 2005), this
exception is inapplicable in light of the facts presented by the record. There was no
testimony that the marshals feared Crowder and McMullin, and in any event, both had
been detained and handcuffed in the backyard.3 As for the other occupants of the
house, Marshal Newlin’s testimony is insufficient to justify his re-entry into the house
on grounds of officer safety. For example, Marshal Newlin did not testify that the
occupants of the house acted belligerently or in a hostile manner. He did not testify
that Crowder or McMullin signaled to the occupants in the house for help. Marshal
Newlin did testify, however, that he observed no firearms or ammunition during his
first visit in the house. On this record, it is not apparent that officer safety required
re-entering the house, as opposed to keeping Crowder and McMullin in the backyard
or taking them to the marshals’ vehicle.
The government also urges this Court to join several other circuits in
recognizing a defendant’s scant clothing to constitute exigent circumstances
permitting a warrantless entry in search of proper clothing for the defendant.4 See,
3
In the context of vehicle searches, the Supreme Court recently held that
“Belton does not authorize a vehicle search incident to a recent occupant’s arrest after
the arrestee has been secured and cannot access the interior of the vehicle.” Arizona
v. Gant, 129 S. Ct. 1710, 1714 (2009) (emphasis added).
4
In the district court, however, the government did not contend that McMullin’s
partially clothed status created an exigent circumstance.
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e.g., United States v. Gwinn, 219 F.3d 326, 335 (4th Cir. 2000) (determining that a
defendant’s lack of shirt and shoes while outdoors justified an officer’s warrantless
re-entry into the house); United States v. Butler, 980 F.2d 619, 621-22 (10th Cir.
1992) (permitting police to retrieve a defendant’s shoes from his house, but noting that
entry into the house does not immediately follow from “the desire of law enforcement
officers to complete the arrestee’s wardrobe”); United States v. Di Stefano, 555 F.2d
1094, 1101 (2d Cir. 1977) (allowing an officer’s entry into a bedroom solely for the
purpose of maintaining control over defendant while she dressed herself). However,
McMullin wore shorts and sandals, missing only a shirt. Marshal Newlin did not re-
enter the house to retrieve a shirt for McMullin in a “carefully circumscribed [area]
to minimize the intrusion,” as in Gwinn, 219 F.3d at 330, or to maintain control over
McMullin while he dressed himself, as in Di Stefano, 555 F.2d at 1101. Instead, he
brought McMullin into the house as part of a further investigation. This record does
not establish circumstances considered exigent which would validate a re-entry into
McMullin’s house.
IV. Conclusion
For the foregoing reasons, we reverse the district court, vacate its judgment, and
remand for further proceedings in accordance with this opinion.
MURPHY, Circuit Judge, dissenting.
I respectfully dissent from the majority's conclusion that appellant McMullin's
consent to Deputy U.S. Marshal Newlin's presence in his kitchen ended before
appellant pointed out the firearms that were present in his home.
The Fourth Amendment suppression issue here cannot be resolved without
careful consideration of how the fast moving events unfolded within minutes after
Newlin's consented entry into McMullin's home. Sounds from Crowder's
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apprehension in the backyard caused Newlin and McMullin to step outside. Then,
after McMullin had clearly lied about Crowder's identity, Newlin warned him about
obstruction of justice, handcuffed him, and said "Well, let's go back into the house and
talk." McMullin said nothing in response. He made no objection of any kind to
Newlin's reentry, only indicating that because of the handcuffs he needed assistance
to manage the high step.
Back inside the house, McMullin did not protest or ask Newlin to leave.
Instead, McMullin sat down at the kitchen table with the deputy and his aunt and
uncle. Deputy Newlin asked McMullin whether he minded answering questions in
front of his aunt and uncle. McMullin said "Yeah, that's fine, I'll talk," and then
admitted that he had known the man staying in his home was Crowder. After Newlin
noticed ammunition in an ashtray, he asked McMullin whether there were firearms in
the house. McMullin pointed to seven firearms lined up against the wall, and his aunt
volunteered that a handgun was stashed in a desk drawer. Knowing that McMullin
had a felony record, the deputy arrested him and seized the firearms.
It is undisputed that there was valid consent by McMullin for Deputy Newlin
to enter his home at the outset. Once consent is given, it may be withdrawn, but only
by an "unequivocal act or statement." United States v. Gray, 369 F.3d 1024, 1026
(8th Cir. 2004) (expressions of impatience do not amount to an unequivocal statement
of withdrawal); United States v. Martel-Martines, 988 F.2d 855, 858 (8th Cir. 1993)
(passively watching in silence as search was expanded not sufficient to withdraw
consent); see also United States v. Sanders, 424 F.3d 768, 775 (8th Cir. 2005)
(repeated use of hands to block officer's search of pockets demonstrated unequivocal
withdrawal of consent).
Newlin left the house only to go into the backyard to assist his partner who was
attempting to arrest Crowder. In the yard McMullin incriminated himself which gave
Newlin reason to talk to him further. McMullin made no objection to his returning
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inside, and Newlin's reason for reentering was within the scope of the consent granted
by McMullin which was to talk and ask questions. See United States v. Castellanos,
518 F.3d 965, 970 (8th Cir. 2008) (distinguishing consent for officer merely to enter
from consent to a search). Newlin's reentry was thus a continuation of his consented
presence in the house.5
The burden remained on McMullin to withdraw affirmatively and
unequivocally his consent for Newlin to be inside his home. The district court found
that McMullin never withdrew his consent—a factual finding that we review for clear
error, see Gray, 369 F.3d at 1026–27, and I see none. To ascertain whether McMullin
withdrew his consent, we ask what "the typical reasonable person [would] have
understood by the exchange between the officer and the suspect." Florida v. Jimeno,
500 U.S. 248, 251 (1991). There is no evidence in the record to indicate that
McMullin ever withdrew his consent, much less that he did so by an "unequivocal act
or statement." Gray, 369 F.3d at 1026.
McMullin had the opportunity to communicate that he did not consent to
Newlin's reentry, but he did nothing of the sort. He nevertheless now argues that
Newlin should have understood that his consent had been withdrawn because he had
to help McMullin back into the house and because McMullin would have been afraid
to refuse him entry after watching the deputies arrest Crowder. This explanation is
not only late, but it is unpersuasive because McMullin did not take any action to
communicate that his consent was withdrawn. After Newlin suggested that the two
men go back into the house, McMullin indicated that he physically could not make the
step. This could reasonably have been interpreted as a request for Newlin's assistance
and continuing consent to Newlin's presence. Moreover, McMullin never told Newlin
that he was afraid not to let him in. Withdrawal of consent requires an "unequivocal
5
The majority expresses concern about any rule that would permit law
enforcement officers to "enter and exit a home at will" after once obtaining consent
to enter. The facts of this case, however, have nothing to do with "at will" entries.
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act or statement" which makes an officer aware that it has been withdrawn. Gray, 369
F.3d at 1026.
McMullin also acquiesced in Newlin's questioning after they were back inside.
See United States v. Parker, 412 F.3d 1000, 1002 (8th Cir. 2005) (holding that a
suspect's assistance to officers conducting a search was inconsistent with having
withdrawn consent for that search). Under these circumstances a reasonable person
could conclude that McMullin had not withdrawn his consent, and in fact, McMullin
himself testified before the grand jury that he had "allowed [the deputies] to search
[his] bedroom and every other area of the house they wanted to." (emphasis added).
None of the cases cited by the majority, including United States v. Weston, 443
F.3d 661 (8th Cir. 2006), United States v. Lakoskey, 462 F.3d 965 (8th Cir. 2006),
and United States v. Carter, 854 F.2d 1102 (8th Cir. 1988), involve facts remotely
analogous to those in this case. In Weston and Carter, the police saw contraband
during a consented entry but seized it only after obtaining a search warrant. 443 F.3d
at 665; 854 F.2d at 1105. The suggestion that Newlin should have obtained a search
warrant ignores the critical fact that he had not entered the home in order to search,
but rather only to question McMullin. Lakoskey, 462 F.3d at 974, is inapposite
because there the defendant specifically refused to allow officers to enter his home.
Given the lack of evidence that McMullin ever made an unequivocal act or
statement to withdraw his consent for Deputy Newlin to be in his house, the majority
seeks to reframe the question to be whether McMullin ever granted a second consent
to enter. As support for that theory, it urges that the purpose for the deputies' visit had
been accomplished once Crowder was arrested. That approach overlooks the fact that
the intervening events had raised reasonable suspicion about whether McMullin had
violated the law by knowingly harboring Crowder or by obstructing justice in lying
about his identity. The deputies were not required to ignore evidence that another
crime may have been committed. McMullin told Newlin several lies about Crowder's
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presence and identity, raising a reasonable suspicion that McMullin had made a false
statement to a federal agent. See 18 U.S.C. § 1001 (2009); United States v. Lanier,
578 F.2d 1246, 1249 (8th Cir. 1978) (knowingly and willfully making a false
statement related to a material matter within federal jurisdiction). Newlin was
therefore justified in detaining McMullin for further questioning. See Terry v. Ohio,
392 U.S. 1 (1968).
McMullin's house was a practical and appropriate location for further
questioning, and Newlin had a legal basis for reentering the house. McMullin and
Newlin had been standing within the curtilage, McMullin had left the back door open,
and was only wearing gym shorts on a chilly morning. See United States v. Montano-
Gudino, 309 F.3d 501, 503–04 (8th Cir. 2002) (reasonable to move a suspect inside
for questioning when it was snowing heavily). Newlin would have been justified in
arresting McMullin for making false statements, and his decision to question
McMullin inside his house was not unreasonable. Once inside, Newlin did not
conduct a protective sweep or search of the residence, and there is no evidence that
his reentry was a pretext to search. It was only when he saw the ammunition in plain
view that he asked if there were any firearms.
Since Newlin had legal authority to be in McMullin's house when he saw the
ammunition in plain view and McMullin pointed out the firearms, I would affirm the
district court and respectfully dissent from the suppression of this legally obtained
evidence.
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