United States v. Parker, John E.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3330
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN E. PARKER,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 05 CR 5—Robert L. Miller, Jr., Chief Judge.
____________
ARGUED NOVEMBER 9, 2006—DECIDED DECEMBER 1, 2006
____________
Before BAUER, POSNER, and FLAUM, Circuit Judges.
BAUER, Circuit Judge. A jury convicted John E. Parker of
being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). On appeal, Parker argues that the
district court erred in denying his motion to suppress a rifle
recovered by the police during the search of his home
because his arrest without probable cause invalidated the
search.1 Parker also argues that the rifle is not a “firearm”
1
At oral argument, Parker wisely withdrew the direct appeal of
his claim of ineffective assistance of trial counsel, thereby
preserving the claim for post-conviction review. See United
(continued...)
2 No. 05-3330
within the meaning of 18 U.S.C. § 921. We affirm both the
district court’s denial of Parker’s motion to suppress and
Parker’s conviction.
I. Background
On November 16, 2004, police officers were called to a
house located at 629 East Haney Street in South Bend,
Indiana in response to an armed disturbance. The
South Bend Police Department had received at least one
report of a firearm discharge outside of the house. Upon
arrival, officers observed Parker leaving the house. Officer
Christopher Bortone, who was not the first officer to
arrive at the scene, took Parker into custody and placed him
in a squad car. Other officers then conducted a protective
sweep of the house but found no one present.
Soon after taking Parker into custody, Officer Bortone
spoke with Linda Johnson, who was standing across the
street from the house. Johnson lived with Parker at
629 East Haney and shared the house with him. According
to Officer Bortone, Johnson was very upset. She was shaken
and crying but rational. She told Officer Bortone that as she
was leaving the house, she heard Parker fire a gunshot.
(Johnson had not seen Parker fire the shot because her back
was turned to him.) When she heard the gunshot, she
1
(...continued)
States v. Williams, 272 F.3d 845, 854 (7th Cir. 2001) (“We believe
these [ineffective assistance of counsel] claims are best brought in
a collateral proceeding where the record can be fully developed,
and not on direct appeal when most of the pertinent information
is not yet in the record.”); Bond v. United States, 1 F.3d 631, 635
(7th Cir. 1993) (“a defendant who presents an ineffective-assis-
tance claim for the first time on direct appeal has little to gain
and everything to lose”).
No. 05-3330 3
turned and saw Parker standing behind her with a sawed-
off shotgun.
Johnson told Officer Bortone and the other officers that
she wanted the gun out of the house and gave the officers
permission to search the house for the weapon. Officer
Bortone and the other officers searched the house but did
not find the shotgun. Johnson then returned to the house
with the officers and instructed them to search the fur-
nace in the basement. In the furnace, the officers discovered
a bag containing a Westinfield 30/30 rifle with its butt
removed. The officers also found a 12-gauge shotgun shell
casing in the kitchen trash can. On January 12, 2005, a
federal grand jury indicted Parker with one count of
possessing a firearm as a felon.
Before trial, Parker moved to suppress the evidence
obtained during the search of his house and statements that
he made to the police following his arrest that implicated
him in the possession of a firearm. He argued that any
statements that he made were in violation of his rights
under the Fifth Amendment and Miranda v. Arizona, 384
U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He also
contended that the search of his home, without his con-
sent or a warrant, violated the Fourth Amendment.
In a memorandum opinion and order dated March 28,
2005, the district court found that Parker had not stated a
violation of either Miranda or the Fifth Amendment
because there was no evidence that his statements were the
result of a custodial interrogation. Noting Parker’s failure
to cite to any case in which a court suppressed statements
made after an unlawful arrest in the absence of any other
form of coercion, and the scant facts surrounding his arrest
and his statements, the district court concluded that an
evidentiary hearing was necessary to resolve whether there
was probable cause for Parker’s arrest and whether there
was consent for the search of the house.
4 No. 05-3330
On April 11, 2005, the district court held an evidentiary
hearing and issued a memorandum opinion, finding that
Johnson, as a co-tenant of the house, had consented to the
search of the house, which made the search reasonable.2
After a one-day trial, the jury returned a verdict, finding
Parker guilty of being a felon in possession of a firearm. On
August 2, 2005, the district court sentenced Parker to sixty-
three months imprisonment. Parker filed a timely notice of
appeal the following day.
II. Analysis
Johnson argues that his conviction should be set aside
because the government failed to demonstrate probable
cause for his arrest. In the absence of probable cause,
Johnson argues that the subsequent search of his home was
invalid and that the district court erred in refusing to
suppress the rifle that the police recovered during the
search. Johnson also contends that the rifle is not a “fire-
arm” within the meaning of 18 U.S.C. § 921.
A. The Rifle Was Recovered Pursuant to a Valid
Consent to Search
On appeal from the denial of a motion to suppress, we
review the district court’s factual findings for clear error
and questions of law de novo. United States v. Grap, 403
2
At oral argument, counsel for the government stated that he
had informed Parker’s trial counsel before the evidentiary hearing
of the government’s intention not to use Parker’s statements
during trial. As a result, neither party addressed whether there
was probable cause for Parker’s arrest during the evidentiary
hearing, and the district court did not rule on whether there was
probable cause for Parker’s arrest.
No. 05-3330 5
F.3d 439, 443 (7th Cir. 2005). Since the resolution of a
motion to suppress is a fact-specific inquiry, we give
deference to the credibility determinations of the district
court, which had the opportunity to listen to testimony
and observe the demeanor of witnesses at the suppression
hearing. United States v. Marshall, 157 F.3d 477, 481 (7th
Cir. 1998).
With few exceptions, the Fourth Amendment generally
requires that the issuance of a warrant supported by
probable cause precede any search. Stanley v. Henson, 337
F.3d 961, 963 (7th Cir. 2003). Evidence that is seized during
an unlawful search cannot be used against the victim of the
unlawful search “unless the government can show that it
was obtained as a result not of the illegality, but rather ‘by
means sufficiently distinguishable to be purged of the
primary taint.’ ” United States v. Swift, 220 F.3d 502 at 507
(7th Cir. 2000) (quoting Wong Sun v. United States, 371
U.S. 471, 484, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963)). The
Fourth Amendment’s probable cause and warrant require-
ments do not apply, however, where an authorized party
voluntarily consents to a search. United States v. Johnson,
427 F.3d 1053, 1056 (7th Cir. 2005) (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d
854 (1973); United States v. Melgar, 227 F.3d 1038, 1041
(7th Cir. 2000)). Because Johnson had authority to consent
to the search of the house and consented to the search, we
find that the district court properly denied Parker’s motion
to suppress.
At the suppression hearing, the district court heard
testimony from Johnson, Officer Bortone, and Officer
Karl Karch, an officer with the Bureau of Alcohol, Tobacco,
and Firearms’ Task Force Project. After listening to their
testimony and observing the witnesses’ demeanor, the
district court concluded that Johnson was Parker’s co-
tenant at 629 East Haney and that she had consented to the
search of the residence.
6 No. 05-3330
In his appeal, Parker does not challenge the district
court’s finding that Johnson was Parker’s co-tenant or that
she consented to the search; rather, he asserts that a co-
tenant’s consent cannot override the objection of a co-tenant
who is either present or who is prevented from objecting
due to an unlawful arrest. There is no evidence, however,
that Parker was asked for his consent to search the house
and that he refused or that he objected in any way to a
search of the house. The absence of such evidence removes
this case from the purview of the Supreme Court’s recent
decision in Georgia v. Randolph, ___ U.S. ___, 126 S.Ct.
1515, 164 L.Ed.2d 208 (2006).
In Randolph, the Supreme Court held that a warrant-
less search with the permission of one co-tenant is unrea-
sonable and invalid as to a co-tenant who is physically
present at the scene and expressly refuses to consent to the
search. 126 S.Ct. at 1519. Both the physical presence of the
defendant and his express refusal to consent to the search
distinguished Randolph from the Court’s decision in United
States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d
242 (1974), in which it held that a consent to a warrantless
search by someone with common authority over the pre-
mises is valid as against an absent, non-consenting person
with whom the authority is shared. The Court recognized in
Randolph the fine line that it was drawing between its
holding in that case and its holding in Matlock: “[I]f a
potential defendant with self-interest in objecting is in fact
at the door and objects, the co-tenant’s permission does not
suffice for a reasonable search, whereas the potential
objector, nearby but not invited to take part in the thresh-
old colloquy, loses out.” Randolph, 126 S.Ct. at 1527.
Here, as in Matlock, the police had taken Parker into
custody and removed him from the premises before asking a
co-tenant for her consent to search the property. At oral
argument, Parker conceded the propriety of the police
officers conducting a protective sweep of the house and
No. 05-3330 7
taking Parker into custody, as the officers had arrived at
the house in response to a report of a gunshot and needed
to ensure the safety of anyone who was in the house. When
they arrived at the house, the police officers discovered
Parker leaving the house. Officer Bortone then took Parker
into custody and placed him in the squad car.3
Again, as in Matlock, Parker was nearby but not invited
to take part in the inquiry as to whether the officers could
search the house. The officers asked Johnson for her
consent, which she gave. The officers then conducted a
search of the house pursuant to her consent. Parker does
not argue or point to anything in the record that even hints
at the possibility that the police had taken him into custody
as a mechanism for coercing Johnson’s consent. So John-
son’s consent to the search was valid as against Parker.
Moreover, Johnson’s consent to the search, the consent of
a third party with authority over the premises being
searched, was sufficiently attenuated from Parker’s arrest
to render the search valid, whether Parker’s arrest was
with or without probable cause. In Brown v. Illinois, 422
U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416(1975), the Supreme Court identified three factors for
determining whether the causal chain has been sufficiently
attenuated to dissipate the taint of illegal conduct: (1) the
3
The precise circumstances surrounding Parker’s arrest are
unclear from the record. We do not know the content of the
telephone call to the police station that notified the officers of
the armed disturbance; who made the call; which officers were
first to arrive at Parker’s house; Parker’s exact location when the
officers arrived at the house; whether the officers knocked on the
door or the door was open; or how or when exactly Officer Bortone
arrested Parker. In his motion to suppress, Parker stated as a fact
on which his motion was based that, upon arriving at the house,
officers observed Parker leave the residence. He was then
handcuffed and placed in a squad car.
8 No. 05-3330
time elapsed between the illegality and the acquisition of
the evidence; (2) the presence of intervening circumstances;
and (3) the purpose and flagrancy of the official misconduct.
United States v. Green, 111 F.3d 515, 521 (7th Cir. 1997).
“In the final analysis, however, the question is whether the
evidence came from the ‘exploitation of that illegality or
instead by means sufficiently distinguishable to be purged
of the primary taint.’ ” Id. (quoting Wong Sun, 371 U.S. at
488, 83 S.Ct. at 417).
While the amount of time elapsing between Parker’s
arrest and Johnson’s consent to the search is unclear, the
record suggests that it was a matter of minutes. The time
span between the claimed police misconduct and the search
is not dispositive, however. Id. (citing United States v.
Fazio, 914 F.2d 950, 958 (7th Cir. 1990)). We instead
consider whether intervening circumstances were present.
In this case, Johnson’s consent to the search constitutes
an intervening circumstance that is not outweighed
by official misconduct, even assuming that Parker’s custo-
dial detention developed into an arrest without probable
cause. Cf. United States v. Cellitti, 387 F.3d 618, 623 (7th
Cir. 2004) (holding invalid a consent to search given by a
defendant who was placed in handcuffs, driven to police
station, locked in a holding cell, and chained to a bench for
several hours after an arrest without probable cause
because consent was tainted by illegal arrest). Johnson’s
consent to the search was an act of free will independent of
Parker’s arrest. See United States v. Pedroza, 269 F.3d 821,
827 (7th Cir. 2001). That Parker was not asked for his
consent and did not have an opportunity to object to the
search does not render invalid Johnson’s voluntary consent.
The district court properly denied Parker’s motion to
suppress.
No. 05-3330 9
B. Parker Waived Any Argument That The Rifle
Is Not a Firearm
Parker argued in his opening brief that the Westinfield
30/30 rifle is not a firearm within the meaning of 18 U.S.C.
§ 921. Parker appears to have abandoned any argument
in this regard in his reply brief. In any event, Parker
waived this argument at trial. Waiver is the intentional
relinquishment and abandonment of a known right, which
precludes appellate review. United States v. Thigpen, 456
F.3d 766, 769 (7th Cir. 2006) (citing United States v. Ortiz,
431 F.3d 1035, 1038 (7th Cir. 2005)). During closing
argument, Parker’s counsel expressly admitted that the
rifle met the legal definition of a firearm.4 Accordingly,
we will not review Parker’s conviction on the basis that
the rifle did not meet the definition of a firearm under
§ 921.
III. Conclusion
For the foregoing reasons, Parker’s conviction is
AFFIRMED.
4
Parker’s counsel stated:
There’s no argument that that’s a firearm. You’re not going
to hear me stand up and say, “That’s not a firearm because it
doesn’t work.” I’ll talk in a minute about why its not working
has some significance, but it’s not because not working
doesn’t make it a firearm. That meets the legal definition of
a firearm. Now, I’m not going to stand here and tell you it
doesn’t.
Trial Transcript at 189.
10 No. 05-3330
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-1-06