United States v. White

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT January 29, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 12-5124
(D.C. No. 4:12-CR-00034-GKF-1)
v. (N.D. Okla.)
JASON WAYNE WHITE,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.
In February 2012, Jason Wayne White was charged in a three-count indictment
with firearm- and drug-related offenses. Mr. White unsuccessfully moved to suppress
evidence seized from his home, entered a conditional guilty plea, and was sentenced to 53
months of imprisonment. He now appeals from the district court’s denial of his motion to
*After examining Appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
suppress.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual History
The district court held a hearing on Mr. White’s motion to suppress. Mr. White
presented one witness, his mother Loretta Webster. Her testimony of the events leading
up to Mr. White’s arrest differed from the testimony of officers who testified for the
Government. The district court determined that the officers’ testimony was “far more
believable” than Ms. Webster’s testimony. ROA, Vol. II at 72. We give deference to the
district court’s determinations of witness credibility, review its factual findings for clear
error, and view the facts in the light most favorable to the Government. United States v.
Jones, 701 F.3d 1300, 1308 (10th Cir. 2012).
On December 12, 2011, officers from the Claremore Police Department responded
to a report that a male was attempting suicide with a handgun. Sergeant Stephen Cox,
Officer David Thirion, and Officer Lance Jenson arrived at the residence and encountered
Ms. Webster on the front lawn. She told the officers that Mr. White’s friend, Laura
Dorsch, had called her at work to tell her that Mr. White was suicidal and had pointed a
handgun to his head. Ms. Webster told the officers that Ms. Dorsch had secured the
handgun, given it to Ms. Webster, and left the home.
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Ms. Webster led the officers into her home and showed them the location of Mr.
White’s upstairs bedroom. Sergeant Cox called up to his bedroom from the bottom of the
stairs and instructed Mr. White to show his hands. Mr. White did so and was handcuffed.
Sergeant Cox asked where the gun was, and Mr. White directed him to a safe.
Sergeant Cox located the safe, which had its door open, and saw that it was empty.
Officers Thirion and Jenson also entered Mr. White’s room to retrieve his clothing. The
officers noticed drug paraphernalia in plain view on Mr. White’s nightstand, and Officer
Jenson took possession of it. When asked about the drug paraphernalia, Mr. White
admitted to drug use.
Captain Milburn Litterell then arrived at the home. He spoke with Ms. Webster,
who said she had taken and hidden the handgun. Captain Litterell asked whether he
could have the gun. Ms. Webster agreed, and he followed her into her bedroom, where
she retrieved a Springfield XD .45 caliber handgun from the far side of the bed and
handed it to Captain Litterell. Mr. White was then transported to a nearby hospital.
B. Procedural History
On February 7, 2012, Mr. White was indicted on three charges: possession of a
firearm and ammunition by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
possession of a firearm and ammunition by an unlawful user of a controlled substance in
violation of §§ 922(g)(3) and 924(a)(2), and possession of a firearm and ammunition after
conviction of a misdemeanor crime of domestic violence in violation of §§ 922 (g)(9) and
924(a)(2). Mr. White moved to suppress “any and all evidence seized from the residence
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and any statements made by [him] to the officers” during the incident. ROA, Vol. I at 17.
He argued that the officers had no basis for a warrantless entry into the home.
The district court denied the motion to suppress, concluding that the officers’
warrantless entry into the home was justified because Ms. Webster consented to their
entry. Alternatively, the district court found exigent circumstances justified a warrantless
entry.
Mr. White entered a conditional guilty plea to the third count, possession of a
firearm and ammunition after conviction of a misdemeanor crime of domestic violence,
reserving his right to appeal the denial of the motion to suppress. On July 27, 2012, Mr.
White filed a timely notice of appeal.
II. DISCUSSION
Mr. White challenges the district court’s denial of his motion to suppress. He
argues that the evidence seized from the home and the statements he made to officers
should be suppressed because the officers unlawfully entered the home without a warrant
in violation of his Fourth Amendment rights. The Government responds that the district
court correctly found that the officers’ warrantless entry was lawful because Ms. Webster
consented to their entry and because exigent circumstances justified entry. Because we
affirm on the third-party consent issue, we do not address whether exigent circumstances
justified the officers’ warrantless entry.
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
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Const. amend. IV. Officers’ entry into a home constitutes a search for Fourth
Amendment purposes. See Payton v. New York, 445 U.S. 573, 585-86 (1980). If officers
enter a home without a warrant, the search “is presumptively unreasonable, and evidence
obtained from such a search is inadmissible, subject only to a few carefully established
exceptions.” United States v. Harrison, 639 F.3d 1273, 1278 (10th Cir. 2011).
“Voluntary consent to search is one such exception.” Id. “Consent may be
obtained from the individual whose property is searched, or in certain instances, from a
third party who possesses either actual authority or apparent authority to consent to the
search.” United States v. Cos, 498 F.3d 1115, 1124 (10th Cir. 2007); see also Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990) (voluntary consent can be obtained “from a third
party who possesses common authority over the premises”). Thus, to establish third-
party consent justifying a warrantless entry, the Government must show that (1) the third
party had actual or apparent authority to consent to entry into the home, and (2) the
consent was freely and voluntarily given. United States v. Sanchez, 608 F.3d 685, 689
(10th Cir. 2010).
Mr. White does not contest that Ms. Webster had actual authority to consent to the
officers’ entry into the home. He frequently refers to the residence as “her home” and
notes that the firearm was retrieved from “her bedroom.” Aplt. Br. at 5. On several
occasions, we have held that if family members or other cohabitants have access to the
residence, they have actual authority to consent to an entry or search of the home. See
United States v. Bass, 661 F.3d 1299, 1305 (10th Cir. 2011) (holding defendant’s
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girlfriend had authority to consent to search as a joint occupant), cert. denied, 132 S. Ct.
1816 (2012); Sanchez, 608 F.3d at 689 (holding defendant’s 15-year-old daughter had
actual authority to consent because she “lived full time in the house and had unrestricted
access to it”); United States v. Andrus, 483 F.3d 711, 720 (10th Cir. 2007) (holding that
officers had a reasonable belief that defendant’s father had authority to consent to the
search of his son’s room and computer because he owned the home and had access to the
room and computer at will). Accordingly, we see no basis to disturb the district court’s
conclusion that Ms. Webster had authority to consent to the officers’ entry into the home.
Although Ms. Webster had authority to consent to the officers’ entry, the
Government must show that she gave voluntary consent. This inquiry “consists of two
parts: (1) the law enforcement officers must receive either express or implied consent,
and (2) the consent must be freely and voluntarily given.” Jones, 701 F.3d at 1317.
“Whether a [party] freely and voluntarily gave . . . consent to a search is a question of
fact and is determined from the totality of the circumstances.” Sanchez, 608 F.3d at 689
(quotations omitted).
Mr. White insists that Ms. Webster never consented to the officers’ entry into the
home, arguing:
[Ms. Webster] was met by police officers at the front door asking where the
gun was located. She responded by taking the officer to her bedroom and
pointing out the location of the gun. She did not invite the police officers
into her home, they just came in. She did not ever give the Claremore
Police Department any consent to search her home. They never asked
permission to search.
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Aplt. Br. at 5 (emphasis added) (citations omitted). We reject this argument.
Implied consent to enter a home is no less valid than explicit consent. Jones, 701
F.3d at 1320-21. Consent “must be clear, but it need not be verbal. Consent may instead
be granted through gestures or other indications of acquiescence, so long as they are
sufficiently comprehensible to a reasonable officer.” United States v. Guerrero, 472 F.3d
784, 789-90 (10th Cir. 2007).
Mr. White acknowledges that Ms. Webster responded to the officer’s question,
made at the front door, by “taking [him] to her bedroom.” Aplt. Br. at 5; see also id. at
10 (“If it was an emergency situation why did Officer Cox follow Mrs. Webster into the
house?”). Sergeant Cox and Officer Thirion also testified that after they asked Ms.
Webster where Mr. White was, she said he was upstairs and led them into the house.
Under either version of events, Ms. Webster took the affirmative action of leading the
officers into the home. Such an affirmative act would lead a reasonable officer
responding to a reported suicide attempt in the home to believe that Ms. Webster
consented to entry into the home. See Jones, 701 F.3d at 1321 (finding implied consent
to enter a home where officers asked to search, the defendant turned and walked toward
the back door of the home, and the officers followed the defendant inside). Her act of
retrieving the firearm for the officers further indicates she consented to their entry.
The only remaining issue is whether Ms. Webster’s consent was freely and
voluntarily given. Consent cannot be “‘coerced, by explicit or implicit means, by implied
threat or covert force.’” United States v. Kimoana, 383 F.3d 1215, 1225 (10th Cir. 2004)
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(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)). “Consent is voluntary if
there is no indication of either force or intimidation.” Id. (quotations omitted). We
consider several factors to determine whether an individual has been coerced, including
“physical mistreatment, use of violence or threats of violence, promises or inducements,
deception or trickery.” United States v. Silva-Arzeta, 602 F.3d 1208, 1214 (10th Cir.
2010) (quotations omitted).
Mr. White does not contest that Ms. Webster voluntarily led the officers into the
home. And, after reviewing the record, we conclude that Ms. Webster’s consent was not
“borne out of duress or coercion.” Jones, 701 F.3d at 1320. Although multiple officers
arrived at the home, which is a factor we consider in assessing voluntariness, see
Harrison, 639 F.3d at 1278, nothing in the record indicates their presence made Ms.
Webster consent because she “felt coerced, frightened or otherwise threatened,” United
States v. Iribe, 11 F.3d 1553, 1557 (10th Cir. 1993).
In sum, Ms. Webster had actual authority to consent to the officers’ entry into the
home, she gave implied consent to their entry by leading them into the home, and her
consent was voluntary. Accordingly, we affirm the district court’s determination that her
voluntary consent justified the officers’ warrantless entry into the home.
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III. CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of Mr. White’s
motion to suppress.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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