USA v. Percy Green

Filing 511161519

USA v. Percy Green

Doc. 511161519

Case: 09-20585

Document: 00511161519

Page: 1

Date Filed: 07/01/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 1, 2010 N o . 09-20585 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA P la in t if f -A p p e lle e v. P E R C Y LAFAYETTE GREEN, also known as Character D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court for the Southern District of Texas N o .4 :0 8 -c r -0 0 4 5 1 -A L L

B e fo r e REAVLEY, WIENER, SOUTHWICK, Circuit Judges. P E R CURIAM:* D e fe n d a n t -A p p e lla n t Percy Lafayette Green entered a plea of guilty to b e in g a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). His p le a was conditioned on the result of his appeal of the district court's denial of h is motion to suppress. Green specifically challenges the district court's refusal t o suppress (1) a statement that Green made to state law enforcement outside a motel, long after his traffic-stop, disclosing the existence and location of a lo a d e d shotgun in his motel room, which statement he claims was uttered in
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

Dockets.Justia.com

Case: 09-20585

Document: 00511161519

Page: 2

Date Filed: 07/01/2010

No. 09-20585 v io la t io n of Miranda v. Arizona;1 and (2) the shotgun itself, the seizure of which r e s u lt e d from the ensuing warrantless search of his motel room, which Green c la im s was conducted in violation of the Fourth Amendment. We affirm. I. Facts & Proceedings A. B ackgrou n d O n April 16, 2008, two Houston police officers noticed Green driving away fr o m the Advanced Motel, a location known for drug activity and prostitution. A fte r observing him commit several traffic violations, the officers signaled Green to pull over, which he failed to do until a red traffic light at an in t e r s e c t io n forced him to stop. As the officers approached Green's car on foot, o n e of them saw Green stuff a plastic bag of what appeared to be cocaine into the fr o n t waistband of his trousers. The officers instructed Green to get out of his c a r . After he complied, they conducted a pat-down and removed a bag from his w a is t b a n d that proved to contain cocaine. The officers handcuffed Green and p la c e d him in the back seat of their patrol car. W it h Green secured in the patrol car, one of the policemen, Officer T u r r e n t in e , ran a check for outstanding warrants, but none was found.

M e a n w h ile , the other policeman, Officer Duron, conducted an inventory of G r e e n 's car. An hour and a half elapsed between the time of Green's arrest and t h e arrival of a tow truck to remove Green's car from the side of the road. At no t im e was Green advised of his Miranda rights At some point during Green's hour and a half sojourn in the patrol car, he r e v e a le d , unprompted, that the cocaine found on his person belonged to a w o m a n , Amanda Perkins, who was asleep in his room at the Advanced Motel. Green told Officer Turrentine that Perkins had "a lot" of crack cocaine in the m o t e l room, and that she would confirm that the cocaine found on Green

1

384 U.S. 436 (1966).

2

Case: 09-20585

Document: 00511161519

Page: 3

Date Filed: 07/01/2010

No. 09-20585 b e lo n g e d to her. Green "pleaded" -- his own words -- with the officers to take h im back to the motel so that Ms. Perkins could verify his story, and the officers a g r e e d to do so. W h e n the officers and Green arrived at the motel, Green volunteered to go u p to his room to retrieve Ms. Perkins and the narcotics himself, but Officer T u r r e n t in e refused Green's offer. Officer Turrentine testified that "I advised [G r e e n ] that I would go up to the room and get Amanda, and he agreed." At that p o in t, Green gave Officer Turrentine the key to Green's room, which the officer w o u ld need to gain entry. Before proceeding to the motel room, Officer Turrentine asked Green if t h e r e was anyone in it other than Ms. Perkins and if there were any weapons in t h e room. Green answered that Ms. Perkins was the only person there and that t h e r e was a loaded shotgun under the mattress, which he had borrowed from a fr ie n d of his son. Green does not contend that the officer inquired about the g u n 's provenance or location; Green appears to have volunteered this in fo r m a t io n . It is undisputed that at the time Green was asked about the p r e s e n c e of firearms in the motel room (1) the officers were unaware of Green's s t a t u s as a convicted felon on parole and (2) the officers had never advised him o f his Fifth Amendment rights under Miranda. Officer Turrentine approached Green's motel room and opened the door w it h o u t knocking. Inside, he found Ms. Perkins asleep in the bed and saw some d r u g paraphernalia and several small rocks of crack cocaine on a bedside table. The officer woke Perkins and escorted her downstairs to the patrol car. Officer T u r r e n t in e then returned to the motel room and recovered the crack cocaine fr o m the bedside table and the shotgun from under the mattress. When he r e t u r n e d to the patrol car, Officer Turrentine informed Green that he had not fo u n d the quantity of crack cocaine that he had expected from Green's d e s c r ip t io n . Green offered--again, unprompted--to show the officer where the 3

Case: 09-20585

Document: 00511161519

Page: 4

Date Filed: 07/01/2010

No. 09-20585 r e s t of the narcotics were located, so Officer Turrentine escorted Green up to the r o o m where Green recovered two bags of crack cocaine that were hidden in two c e r e a l boxes on the dresser. It appears that Green asked whether, in exchange fo r his cooperation, the officers would be willing to make a deal with him, but O ffic e r Turrentine refused and returned Green to the back seat of the patrol car. After recovering the additional crack cocaine, the officers ran a search on t h e shotgun they had recovered to determine whether it had been stolen. They a l s o ran a search of Green's criminal history and discovered for the first time t h a t he was a convicted felon on parole. At that point, the officers transported b o th Green and Perkins to the Harris County jail. In April 2008, the Houston Police Department referred Green's case to the fe d e r a l Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") because G r e e n was a convicted felon found in possession of a firearm. Before meeting w it h Green, ATF Agent Jacobs, who subsequently testified at the suppression h e a r in g , reviewed Green's case file and noticed that it did not indicate that G r e e n had been advised of his Miranda rights, but did reflect that he had a d m it t e d to the Houston police officers who had arrested him that there was a s h o tg u n in his motel room. When ATF Agent Jacobs interviewed Green for the first time at the Harris C o u n ty Jail on June 18, 2008 -- a month after his initial arrest -- the first thing h e did was to advise Green of his Miranda rights. After Green executed a w r it t e n waiver, he admitted to Agent Jacobs that he knew he was a convicted fe lo n and should not have a firearm; that he knew the shotgun was under his m a t t r e s s on the day of his arrest; and that the shotgun belonged to a friend of h is son. B. P r o c e e d in g s

4

Case: 09-20585

Document: 00511161519

Page: 5

Date Filed: 07/01/2010

No. 09-20585 I n July 2008, a grand jury indicted Green for unlawful possession of a fir e a r m by a convicted felon in violation of 18 U.S.C. § 922(g)(1).2 In December 2 0 0 8 , Green filed a motion to suppress (1) the statements he had made regarding t h e presence of the firearm in the motel room and (2) the firearm itself. In his m o t io n to suppress, Green contended that (1) his statements regarding the s h o tg u n had been unconstitutionally obtained in violation of his Fifth A m e n d m e n t rights safeguarded by Miranda; and (2) the search underneath the m a t t r e s s , which had yielded the shotgun, violated the Fourth Amendment b e c a u s e it had been carried out without a warrant and exceeded his consent. Specifically, Green insisted that the officers' search of the bed exceeded the scope o f the motel room search to which Green did consent. In its opposition to Green's motion, the government asserted that the search of Green's entire motel room was consensual. The government also urged t h a t Green's voluntary statements regarding the existence and location of the s h o tg u n did not offend Miranda because they fell within the "public safety" e x c e p t io n as articulated in New York v. Quarles.3 A fte r a suppression hearing in January 2009, at which Officer Turrentine a n d ATF Agent Jacobs testified, the district court denied Green's motion in a r u l i n g from the bench. In March 2009, Green entered a guilty plea on the c o n d itio n that he be permitted to challenge the district court's ruling on his m o t io n to suppress. This timely appeal followed.

2

18 U.S.C. 922(g)(1) provides, in relevant part: (g) It shall be unlawful for any person (1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year; . . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
3

467 U.S. 649 (1984).

5

Case: 09-20585

Document: 00511161519

Page: 6

Date Filed: 07/01/2010

No. 09-20585 I I . Analysis A. T h e alleged Fifth Amendment violation " W e review a district court's factual findings surrounding a motion to s u p p r e s s statements made in violation of Miranda under the clear error s t a n d a r d , and review conclusions of law de novo."4 We may affirm the district c o u r t's ruling on any grounds supported by the record.5 G r e e n seeks to suppress the statements that he made regarding the p r e s e n c e and location of the shotgun in his motel room. He reiterates the c o n t e n t io n he advanced in the district court that the officers violated his Fifth A m e n d m e n t rights when they asked him whether there were firearms in his m o t e l room without first advising him of his Miranda rights. Relying on U.S. v. B r a ith w a ite ,6 Green argues that the public safety exception to Miranda cannot a p p ly because no imminent threat to the public's safety existed at the time he w a s asked about the presence of firearms in his motel room. In Brathwaite, we h e l d that the police cannot rely on the public safety exception to giving a M ir a n d a warning once the danger inherent in a confrontation has passed.7 In t h a t case, we determined that the public safety exception did not apply when the p o lic e -- w h o were in possession of a warrant, had already conducted two p r o t e c t iv e sweeps of the premises to be searched, and had then arrested and h a n d c u ffe d the defendant--failed to Mirandize the defendant before asking him a b o u t the presence of firearms.8

4

United States v. Brathwaite, 458 F.3d 376, 382 (5th Cir. 2006)(citations omitted). United States v. McSween, 53 F.3d 684, 687, n. 3 (5th Cir.1995). Brathwaite, 458 F.3d at 378. Brathwaite, 458 F.3d at 382, n. 8. Id. at 382, n. 8.

5

6

7

8

6

Case: 09-20585

Document: 00511161519

Page: 7

Date Filed: 07/01/2010

No. 09-20585 G r e e n analogizes his case to Brathwaite, contending that because he had already been in custody for an hour and a half, and because the officers had had p le n ty of time to obtain a warrant to search the motel room or to advise him of h is rights, the government's contention--that the officers were faced with an im m e d ia t e and on-going threat to public safety, which trumped Green's Miranda r ig h t s -- is specious. The government counters that the public safety exception should apply b e c a u s e , unlike the situation in Brathwaite, the danger inherent in the instant s it u a t io n had not yet passed: The officer asked about the presence of firearms b e fo r e entering a motel room at the behest of an arrestee--a room that the a r r e s t e e had led the officer to believe would contain both a large quantity of c r a c k cocaine and another drug user or dealer. In essence, the government c o n t e n d s that the fact that the police had sufficient time to advise Green of his M ir a n d a rights or to seek a warrant, or both, is irrelevant to the applicability of t h e public safety exception. T h e public safety exception archetypically applies in those situations in w h ic h law enforcement is confronted with an on-going conflict, arrest, or other v o la t ile situation.9 It does not apply, however, when law enforcement is simply a w a r e of or believes that contraband may be located in a particular location to

United States v. Lee, 188 Fed. App'x 326, 328 (5th Cir. 2006)(unpublished) (public safety exception applied when arrestee voluntarily disclosed that he possessed a weapon and therefore "concern about the safety of the officers at the scene and the numerous onlookers" excused officers' failure to give Miranda warnings before asking where the firearm was located); U.S. v. Roberson, 20 F.3d 1171 (5th Cir. 1994) (public safety exception applied when, after finding a knife in the course of a patdown of an arrestee, the officer asked the arrestee if he had any other weapons); Fleming v. Collins, 954 F.2d. 1109, 1109 (5th Cir. 1992) (en banc) (holding that public safety exception applied because concern for the officers' safety in the confusing aftermath of a botched bank robbery excused the officers' failure to read Miranda warnings when they came upon a man pointing a pistol at another man (who ultimately proved to the defendant) in an open field near the bank); United States v. Webster, 162 F.3d 308, 332 (5th Cir. 1998) (public safety exception excused officer's failure to Mirandize the arrestee before asking whether he had any other objects on his person that might harm the officer after the officer found a syringe in the arrestee's pocket in the course of a patdown).

9

7

Case: 09-20585

Document: 00511161519

Page: 8

Date Filed: 07/01/2010

No. 09-20585 w h i c h the public does not have access, such as a vehicle or, arguably, a motel r o o m .1 0 The exception exists to permit law enforcement to neutralize any

im m e d ia t e or lingering danger to themselves or to the public, and to avoid fo r c in g law enforcement officers to wrestle with the Hobson's choice "often in a m a t t e r of seconds, whether it best serves society for them to ask the necessary q u e s t io n s without the Miranda warnings and render whatever probative e v id e n c e they uncover inadmissible, or for them to give the warnings . . . but p o s s ib ly damage or destroy their ability to obtain that evidence and neutralize t h e volatile situation confronting them."11 The Supreme Court has described the e x c e p t io n as "narrow," instructing that "in each case it will be circumscribed by t h e exigency which justifies it." 12 A s Green correctly notes, the facts of this case hardly suggest the c o n d itio n s of exigency that justify the application of the exception.1 3 The

g o v e r n m e n t does not explain -- and the officers who testified at the suppression h e a r in g were never asked -- why they failed to Mirandize Green (which, unlike o b ta in in g a warrant, would have taken but a few minutes) before they a p p r o a c h e d and entered the motel room. They obviously had ample time to do s o without incurring any risk to themselves or to the public, and without je o p a r d iz in g their mission.

United States v. Raborn, 872 F.2d 589, 595 (5th Cir. 1989) (holding it "difficult . . . to find that the public-safety exception applies" when the police asked about the location of a weapon they already believed to be in the defendant's truck after the defendant was under arrest, the truck had been seized by the police, and the weapon therefore presented no danger to the public).
11

10

New York v. Quarles, 467 U.S. 649, 658 (1984).

Id. Accord Fleming, 954 F.3d at 1112 (holding that the public safety exception applies only to "certain narrow, exigent situations"). Fleming, 954 F.2d at 1112 (noting that the policy rationale for the public safety exception is "analogous to the justification for the exigent circumstances exception to the Fourth Amendment warrant requirement.").
13

12

8

Case: 09-20585

Document: 00511161519

Page: 9

Date Filed: 07/01/2010

No. 09-20585 W e need not address this issue, however, because Green's ex post M ir a n d iz e d statement to the ATF agent, which was identical to his pre-seizure a d m ission to the Houston police officers, is readily admissible. When juxtaposed, t h e Supreme Court's decisions in Elstad1 4 and Seibert1 5 provide the applicable a n a ly t ic framework. In Seibert, the Supreme Court "refused to allow the

p o s t -w a r n in g confession where a `two-step interrogation technique was used in a calculated way to undermine the Miranda warning.'"1 6 The Court explained t h a t "[t]he use of such a strategy involves an interrogator "rel[ying] on the d e fe n d a n t 's prewarning statement to obtain the postwarning statement used a g a in s t her at trial [,] ... [by] confront[ing] the defendant with her inadmissible p r e w a r n in g statements and push[ing] her to acknowledge them." 1 7 W e have interpreted the resulting analytic framework for such "two-step" in t e r r o g a t io n s thus: "`Seibert requires the suppression of a post-warning s t a t e m e n t only where a deliberate two-step strategy is used and no curative m e a s u r e s are taken; where that strategy is not used, `[t]he admissibility of p o s t w a r n in g statements [ ] continue[s] to be governed by the principles of E ls ta d .'"1 8 Green does not contend that a deliberate, two-step strategy was used, o r that the ATF agent ever confronted him with his prior admission to the H o u s t o n Police. Thus, the principles of Seibert do not apply here; but, as shall b e seen, those of Elstad do.

14

Oregon v. Elstad, 470 U.S. 298 (1985). Missouri v. Seibert, 542 U.S. 600 (2004)(Kennedy, J., concurring in judgment).

15

United States v. Nunez-Sanchez, 478 F.3d 663, 668 (5th Cir. 2007) (quoting Seibert, 542 U.S. at 622).
17

16

Seibert, 542 U.S. at 621.

Nunez-Sanchez, 478 F.3d at 668 (quoting United States v. Courtney, 463 F.3d 333, 338 (5th Cir.2006) (citing Seibert, 542 U.S. at 622) (modifications in original)).

18

9

Case: 09-20585

Document: 00511161519

Page: 10

Date Filed: 07/01/2010

No. 09-20585 I n Elstad, the Supreme Court held that when a confession is obtained b e fo r e the suspect has been Mirandized, "there is no warrant for presuming c o e r c iv e effect where the suspect's initial inculpatory statement, though t e c h n ic a lly in violation of Miranda, was voluntary."1 9 Moreover, "a suspect who h a s responded to unwarned yet uncoercive questioning is not thereby disabled fr o m waiving his rights and confessing after he has been given the requisite M ir a n d a warnings."2 0 Under the principles of Elstad,"[t]he test for deciding if a statement is involuntary is if the tactics employed by law enforcement officials c o n s t it u t e a Fifth Amendment due process violation and are `so offensive to a c iv iliz e d system of justice that they must be condemned.'"2 1 That is obviously not t h e case here. Green was under arrest, and had been for some time, when he w a s asked about presence of firearms in his motel room. This distinguishes his s it u a t io n from defendants in similar cases in which unwarned statements were h e ld to be voluntary.2 2 The totality of the circumstances here, however, belies a n y suggestion that his response was coerced: Green was asked a single

q u e s t io n about the presence of firearms and other persons in the motel room b e fo r e the police carried out a search of the room that Green himself had begged t h e m to perform, and in which he sought to participate.2 3

19

Elstad, 470 U.S. at 318 (emphasis added). Id. at 318.

20

United States v. Hernandez, 200 Fex. App'x 282, at *3 (5th Cir. 2006)(citing United States v. Bengivenga, 845 F.2d 593, 601 (5th Cir. 1988)). See, e.g., Elstad, 470 U.S. at 316 (defendant had not been placed under formal arrest and was unaware that there existed a warrant for his arrest); Hernandez, 200 Fex. App'x. at *3 (5th Cir. 2006) (defendant had been pulled out of TSA security screening line after setting off a metal detector but was not under arrest). Elstad, 470 U.S. at 310 ("[i]t is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for
23 22

21

10

Case: 09-20585

Document: 00511161519

Page: 11

Date Filed: 07/01/2010

No. 09-20585 M o r e o v e r , even if Green's statement to the Houston police could c o n c e iv a b ly be deemed "coerced," sufficient curative measures were taken: (1) H is second interrogation was carried out by a different agent, whom he had n e v e r met and who was with a different law enforcement agency (the federal A T F ); (2) more than a month elapsed between his initial statement to the H o u s t o n police officers and his interrogation by the ATF agent; and (3) there is n o suggestion in the record that the ATF agent confronted him with his prior a d m is s io n to the Houston police.24 F o r these reasons, the district court did not err when it refused to exclude, o n Fifth Amendment grounds, Green's statement regarding the presence and lo c a t io n of the shotgun in his motel room. C. T h e alleged Fourth Amendment violation W h e n a defendant challenges the constitutionality of a search and seizure u n d e r the Fourth Amendment, and the district court denies the motion to s u p p r e s s based on live testimony at a suppression hearing, we accept the trial c o u r t's factual findings unless they are "`clearly erroneous or influenced by an in c o r r e c t view of the law,'" and we review the evidence in the light most fa v o r a b l e to the prevailing party.2 5 "The ultimate conclusion about the

c o n s t it u t io n a lit y of the law enforcement conduct is reviewed de novo."2 6 We may

some indeterminate period."). Elstad, 470 U.S. at 310 (holding that "[w]hen a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession."). United States v. Rodriguez, 601 F.3d 402, 405 (5th Cir. 2010)(internal marks and citations omitted); United States v. Hernandez, 279 F.3d 302, 306 (5th Cir. 2002)(reviewing denial of motion to suppress in the light most favorable to the prevailing party). Id. (citations omitted); United States v. Moody, 564 F.3d 754, 760 (5th Cir. 2009) (citations omitted).
26 25 24

11

Case: 09-20585

Document: 00511161519

Page: 12

Date Filed: 07/01/2010

No. 09-20585 a ffir m the district court's exclusionary ruling on any rationale supported by the r e c o r d , although "where a police officer acts without a warrant, the government b e a r s the burden of proving that the search was valid." 27 G r e e n claims that, when Officer Turrentine looked underneath the m a t t r e s s and recovered the shotgun, he exceeded the scope of the consent that G r e e n had given to search the motel room. Green seeks to suppress the shotgun a s fruit of the poisonous tree.2 8 He contends that the scope of his consent was e n c a p s u la t e d in his response to Officer Turrentine's declaration that he--and n o t Green--would go into the motel room and bring Ms. Perkins back to the p a t r o l car, presumably so that Green could speak with her. Thus, Green insists t h a t Officer Turrentine was not authorized to search under the mattress and s e iz e the shotgun that was found there because doing so went beyond merely r e t r ie v in g Ms. Perkins. The government responds that, by telling the officers not just about Ms. Perkins but also about the large quantity of narcotics in his r o o m ; by pleading with them to enter; by giving them the key; and by uttering n o words of restriction or limitation whatsoever, Green effectively gave the o ffic e r s his unconditional and unqualified consent to search every part of the room . " A warrantless entry into and search of a dwelling is presumptively u n r e a s o n a b le without a warrant unless consent is given or probable cause and e x ig e n t circumstances justify the encroachment."2 9 These Fourth Amendment p r o t e c t io n s extend to the rooms of guests in motels.3 0 "[T]he standard for

27

Id. (citations omitted). Mapp v. Ohio, 367 U.S. 643 (1961).

28

United States v. Santiago, 410 F.3d 193, 198 (5th Cir. 2005). Accord Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
30

29

United States v. Richard, 994 F.2d 244, 247 (5th Cir. 1993).

12

Case: 09-20585

Document: 00511161519

Page: 13

Date Filed: 07/01/2010

No. 09-20585 m e a s u r in g the scope of . . . consent under the Fourth Amendment is that of `o b je c t i v e ' reasonableness--what would the typical reasonable person have u n d e r s t o o d by the exchange between the officer and the suspect?" 31 W h e n the police are relying upon consent as the basis for their w a r r a n t le s s search, they have no more authority than they have a p p a r e n t ly been given by the consent. It is thus important to take a c c o u n t of any express or implied limitations or qualifications a t t e n d in g that consent which establish the permissible scope of the s e a r c h in terms of such matters as time, duration, area, or in t e n s it y .32 A lt h o u g h "[o]bjective reasonableness is a question of law that is reviewed de n o v o . . . the factual circumstances surrounding the consent `are highly relevant w h e n determining what the reasonable person would have believed to be the o u te r bounds of the consent that was given.'"3 3 The scope of consent may also be lim it e d by "the stated object of the search."3 4 "Where the defendant has failed t o limit the scope of the search, the question that remains in determining its v a lid it y is whether, under the totality of the circumstances, the search was r e a s o n a b le ." 35 B y insisting that we consider only his nonspecific acquiescence in Officer T u r r e n t in e 's statement that he would enter the motel room and retrieve M s .P e r k in s from it, Green essentially urges us to adopt an artificially surgical a p p r o a c h to delimiting the outer bounds of consent. Such an approach cannot b e squared with the reasonableness standard that our precedents have

31

Florida v. Jimeno, 500 U.S. 248, 251 (1991). United States v. Mendoza-Gonzalez, 318 F.3d 663, 667 (5th Cir. 2003). Mendoza-Gonzalez, 318 F.3d at 667 (citations omitted).

32

33

Mendoza-Gonzalez, 318 F.3d at 668 (citing Jimeno, 500 U.S. at 251 (holding that "[t]he scope of a search is generally defined by its expressed object.").
35

34

United States v. Mendez, 431 F.3d 420, 427 (5th Cir. 2005).

13

Case: 09-20585

Document: 00511161519

Page: 14

Date Filed: 07/01/2010

No. 09-20585 e s t a b lis h e d for analyzing the scope of consent, especially when, as here, Green's a c t io n s so belie his claims.3 6 He told the officers that there were large quantities o f narcotics inside his motel room and gave them the key to the room;3 7 he n e ith e r spoke nor implied any limiting instructions as to the areas they could (or c o u ld not) search;3 8 he never objected to either of Officer Turrentine's two return t r ip s to the room.3 9 In fact, Green even accompanied Officer Turrentine back up t o the room to help the officer find the narcotics that he had failed to locate on p r e v io u s trips; and Green volunteered--without being asked--the location and p e d ig r e e of the shotgun that was hidden under the mattress in his room. Obviously, this is not a situation in which the officer entered the premises with fir m instructions--or even implications--from Green to proceed only from point a to point b, or to recover only a single item from a discrete location within the r o o m .4 0 On the contrary, Green gave the officers broad consent to search the r o o m and, without being asked, told them the specific location of the shotgun.

Mendez, 431 F.3d at 427 (5th Cir. 2005) (holding that the scope of consent asserted before the court is "inconsistent with Mendez's actions during the search" and therefore unreasonable). United States v. McSween, 53 F.3d 684, 687 (5th Cir. 1995)(noting that defendant's behavior in helping officers access a portion of his vehicle indicated broad consent). United States v. Stewart, 93 F.3d 189, 192 (5th Cir. 1996) (holding that when defendant "knew . . . that [the officer] was looking for illegal drugs, it is objectively reasonable to expect [the officer] to look in the [pill] bottle after [having been] giv[en] permission to look at the bottle."). Mendez, 431 F.3d at 427; Mendoza-Gonzalez, 318 F.3d at 667 (holding that defendant's failure to object when the agent began opening a box suggested that the agent's actions were within scope of initial consent). See United States v. Kinkeade, 141 Fed. App'x 42 (5th Cir. 2005) (unpub'd) (holding that officers exceeded scope of consent to enter home in response to domestic disturbance call when woman locked out of her house "just wanted the officer to climb through a broken window and unlock the exterior door" and consented "only to that act" and not to the officers going upstairs, finding her husband, and questioning him about a firearm they had seen from the top of the stairs).
40 39 38 37

36

14

Case: 09-20585

Document: 00511161519

Page: 15

Date Filed: 07/01/2010

No. 09-20585 N e ith e r did Green object when the officer, having taken custody of Ms. Perkins, r e t u r n e d to the room to seize the shotgun. Under the particular circumstances o f this case--a defendant turned eager informant--any reasonable officer would h a v e understood Green's words and actions to constitute his consent to search t h e entirety of the room for narcotics and the shotgun, and to seize both.41 A s with Green's statement concerning the shotgun, we perceive no error in the district court's refusal to suppress the shotgun itself. III. Conclusion F o r the foregoing reasons, we are satisfied that the district court's denial o f Green's motion to suppress his statement regarding the existence of the s h o tg u n as well as the shotgun was fully justified. His resulting conviction and s e n te n c e are, in all respects, A F F IR M E D .

United States v. Robinson, 217 Fed. App'x 503 (6th Cir. 2007) (holding that "[i]f a person advises a police officer that there is a potentially dangerous person in her house, that the person is in possession of firearms and then consents to a search of her house, an objectively reasonable person would expect the officer to search for both the potentially dangerous person and the firearms.").

41

15