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PATC Legal E-Newsletter

August 2016

By Jim Chapman, Attorney, Public Agency Training Council

Article Source | Printable Version | Follow PATC

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In United States v. Bey, ___ F.3d ___, 2016 WL 4073248 (1st Cir. June 9, 2016), the United States Court of Appeals for the First Circuit held that the District Court did not err in denying Bey’s motion to suppress evidence obtained from the search of a residence without first obtaining a warrant to search the premises.  The relevant facts are as follows.

On July 19, 2013, five police officers with the Everett, Massachusetts, Police Department sought to execute a warrant for Bey’s arrest that stemmed from a domestic violence dispute involving a firearm.  Based on information offered by the victim of that earlier offense, the officers determined that Bey was likely staying at the home of Clarissa Summons in Everett.  Bey was barred from being within 100 yards of Summons’s residence by an abuse prevention order.

Sergeant Stallbaum was one of the five officers who arrived at Summons’s apartment and later testified at the evidentiary hearing on Bey’s motion to suppress.  Stallbaum, in testimony credited by the district court, stated that Summons responded to the officers’ knocks on her front door.  Asked whether Bey was inside, Summons repeated aloud, “Is Paul Bey here?”, and stated that she was not sure whether Bey was in the residence.  According to Stallbaum, Summons then looked to her left and put her finger to her lips in a hushing gesture.  She then backed into the apartment while opening the door to the home.  The officers took this as both an acknowledgment of Bey’s presence in the residence and an invitation to enter.

At this point, the officers entered the home, drew their weapons, and quickly found Bey in a bedroom.  Concerned for his own safety, Stallbaum moved a black backpack on a nearby bed away from Bey’s reach, later testifying that he noticed that the bag felt heavy and the objects inside were distributed unevenly.  The officers handcuffed Bey and asked him, before issuing Miranda warnings, whether the backpack was his.  Bey told the officers the bag belonged to Summons.  The officers removed Bey from the apartment.

After Bey’s departure, several officers stayed behind and looked around Summons’s apartment.  While Stallbaum left to obtain a standard-issue consent to search form, another officer on the scene, Officer McCabe, asked Summons for detailed information regarding her four-year-old son who lived in the home and was present at the time of the arrest.  At some point in this conversation, McCabe mentioned contacting the Massachusetts Department of Children and Families (“DCF”).  The District Court found that McCabe did not, however, refer directly to the possibility of removing Summons’s son from the home.

Following that interaction, Stallbaum returned and asked Summons to sign the consent to search form, seeking her permission to search the premises for evidence of the gun used by Bey in the domestic violence offense that had prompted the arrest.  Stallbaum told Summons that she was free to withhold her consent, but, if she did, she and her son would have to leave the house for several hours while the police secured the apartment and applied for a search warrant.  Stallbaum, at this point, had no knowledge of the earlier conversation between McCabe and Summons regarding the DCF.

Summons signed the consent to search form.  She told the officers that the black backpack belonged to her but that she was lending it to Bey.  A search of the backpack yielded a loaded 9 millimeter semi-automatic pistol with two magazines of ammunition, a plastic bag containing 15.31 grams of marijuana, a medication container containing 22.5 15-milligram oxycodone pills, and a small electronic scale determined to have cocaine and marijuana residue on it.

On the basis of the evidence found in the backpack, a grand jury issued an indictment accusing Bey of committing six drug and firearm-related offenses.  Bey moved to suppress the evidence found in the bag as the fruits of illegal searches of both Summons’s residence and the backpack itself.  After an evidentiary hearing, the District Court denied Bey’s motion.  Bey, thereafter, entered into a plea agreement whereby he agreed to plead guilty to the indictment’s six charges.  Pursuant to this agreement, the government recommended, inter alia, a sentence of seventy months’ incarceration and agreed to refrain from seeking an appeal of any sentence imposed below that recommendation.  The agreement explicitly preserved Bey’s right to challenge the District Court’s denial of his motion to suppress.

Initially, the First Circuit noted that it was not entirely clear that Bey had any right to challenge the entry into Summons’s apartment.  To assert such a right, Bey needed to show that he had a “reasonable expectation of privacy” in Summons’s residence.  Although Bey may have been a regular, overnight guest and, therefore, had entitlement to some measure of privacy, his presence in the home was also in clear violation of an abuse protection order.  Generally, one cannot form a legally recognizable expectation of privacy in a place where one is not legally allowed to be.  Several courts have specifically held that a defendant cannot claim a reasonable expectation of privacy to the interior of a home where the defendant’s very presence is unlawful due to a restraining order.  Nevertheless, because the merits of Bey’s challenge were easily resolved and because the District Court did not consider the issue of Bey’s expectation, the First Circuit assumed the reasonableness of that expectation and proceed to consider whether it was honored.

The First Circuit started by noting that the Fourth Amendment forbids law enforcement from searching a home without a warrant unless the search falls under “one of the ‘few specifically established and well-delineated exceptions’ to the warrant requirement.” United States v. Forbes, 181 F.3d 1, 5 (1st Cir. 1999).  For consent to a search to be valid, the government must prove by a preponderance of the evidence that the consent was un-coerced.  The presence of coercion is a question of fact based on the totality of the circumstances, including “the consenting party’s knowledge of the right to refuse consent; the consenting party’s possibly vulnerable subjective state; and evidence of inherently coercive tactics, either in the nature of police questioning or in the environment in which the questioning took place.” United States v. Twomey, 884 F.2d 46, 51 (1st Cir. 1989).  

On appeal, Bey did not argue that the officers procured Summons’s acquiescence to the search of her apartment through fraud, deceit, trickery, or misrepresentation.  Rather, he asserted that the police engaged in coercive tactics that overpowered Summons’s will by communicating the absolute need for compliance by Summons.  Such tactics, Bey argues, led to Summons becoming “nervous and extremely anxious [because of] the substantial law enforcement presence” and feeling “forced to comply.  Essentially, Bey argued that the District Court mis-weighed the totality of circumstances in the officers’ favor, giving short shrift to Summons’s subjective experience of fear and anxiety produced by the presence of the officers.  The First Circuit rejected Bey’s argument and found that the District Court’s conclusion that the police did not coerce Summons was well-supported by the factual record as developed at the evidentiary hearing. 

Furthermore, the First Circuit opined that the officers’ behavior was not so “inherently coercive” that Summons’s capacity for self-determination was critically impaired.  According to the First Circuit, the “tactics” that the three police officers engaged in—appearing at a doorstep and doing no more than informing a resident that they were in possession of an arrest warrant for an individual believed to be inside—did not approach the far more robust police activity that it had previously deemed to fall short of being “inherently coercive.”  The First Circuit noted that Summons was not in custody when she provided consent.  During the exchange at the front door, the officers’ guns were not drawn, and the officers did not attempt to apply any pressure beyond appearing ready and eager to enter.  There simply was no overt act or threat of force against Summons, nor were there promises made to her, nor were there any indications of more subtle forms of coercion that might flaw her judgment.  Indeed, the First Circuit stated that the officers did not even directly ask to be admitted before Summons opened the door to them and (perhaps because she was fearful not of the police but of Bey) signaled that they should enter.  Accordingly, the First Circuit affirmed the District Court’s ruling that officers did not violate the Fourth Amendment in entering the apartment.

The First Circuit also affirmed the District Court’s conclusion that the officers did not violate the Fourth Amendment in searching the black backpack.  Bey argued that Summons’ consent to the search of the bag was procured by the officers’ threat to call the state’s child welfare agency and the invocation of the possibility that her young son would be removed from her home. According to Bey, the officers repeatedly threatened Summons with a DCF visit and the removal of her child for a period of “well over 15–20 minutes,” during which time the officers had already begun to search the backpack.  The officers’ later procurement of Summons’ signature on the consent form, Bey says, was a post-hoc “cover up” attempt.  Given this allegedly overbearing pressure and exploitation of the relationship between a mother and her young son, Bey asserts that Summons could not have consented voluntarily.

Again, the First Circuit found that the District Court’s ruling was supported by the evidence presented at the hearing on Bey’s motion to suppress.  The District Court found that, while Officer McCabe did mention contacting the DCF in conversation with Summons, this exchange occurred during a one-on-one conversation between McCabe and Summons. While recognizing that Summons “became concerned” about the potential consequences of any DCF intervention, the District Court determined that McCabe never made any reference to the possibility that Summons’s son could be removed from the home.

Shortly after this exchange, Stallbaum returned inside with the consent form and sat down with Summons to review the document, informing her of her right to withhold consent and refraining from making any threats or promises in an attempt to persuade Summons to sign the form.  The District Court found that Stallbaum had no knowledge of the earlier discussion between Summons and McCabe that touched on the DCF. The evidence also indicated that the officers did tell Summons what would happen if she did not sign the consent and, in doing so, made no suggestion that the child would be taken.  Based upon this evidence, the First Circuit determined that the District Court did not err in ruling that Summons’s consent to search the apartment was voluntary.

In short, law enforcement officers are reminded that they are generally prohibited from searching a home without a warrant.  However, a few, well-delineated exceptions to the warrant requirements exist.  One such exception is based upon a homeowner’s consent to search the home.  If valid consent is given, police may search the home without first obtaining a warrant.



Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.





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