On January 3, 2023, the Eleventh Circuit Court of Appeals decided the United States v. Barr[i], which serves as an excellent review of the law related to consent to enter private premises. The relevant facts of Barr, taken directly from the case, are as follows:
In the summer of 2017, Barr was living under an alias with his girlfriend, Nadya Diaz. The two lived on a thirty-acre farm that included pastureland, several barns, and a shooting range. Whit-field County Sheriff’s Office Sergeant Wes Gibson had worked a side job tending to Barr’s horses, and he knew Barr by the name “Carlos Fonseca.” He had observed Barr carrying a pistol with him several times and had also noticed a hunting rifle in Barr’s home. Barr and Diaz distanced themselves from Sergeant Gibson after learning that he worked in law enforcement.
In early August, the sheriff’s office received reports of domestic violence by Barr against Diaz. A deputy went to the farm to investigate and saw Barr-who identified himself as “Mike”- outside the house wearing an empty pistol holster. Deputies later realized that “Carlos” was actually Michael Barr. They checked a criminal database and confirmed that Barr had active arrest warrants related to controlled substances and illegal possession of a firearm by a convicted felon. When the deputies obtained a photograph of Barr and returned undercover to the house to verify his identity, he answered the door as “Carlos,” and they again observed him wearing an empty holster. The deputies positively identified Barr from his photograph, and they planned to arrest him pursuant to the outstanding warrants.
Because the deputies knew Barr owned firearms, they decided to try arresting him by a traffic stop rather than approach him while he was inside the house. They set up surveillance at the farm around 8:00 a.m. on August 31. The deputies did not know if anyone else was at the house, but they saw two vehicles parked in the driveway. A third vehicle on the property belonged to Barr’s employee, Michael Hawkins, who was there with his daughter Ashley to help Barr corral horses behind the house.
Around 10:30 a.m., the deputies decided not to wait to perform a traffic stop but to arrest Barr while he was outside the house with the Hawkinses. The deputies placed Barr in plastic handcuffs without incident and read him his Miranda 1 rights. Barr asked for an attorney and would not tell the deputies his name. Detective Rickey Holmes turned from Barr, began walking up the driveway toward Mr. Hawkins, and told him, “I have a paper written, but I don’t have it signed.” Detective Holmes was referring to a search warrant application; he had drafted it before the arrest in case the initial plan to arrest Barr at a traffic stop failed.
Because Barr’s hands were cuffed, he had difficulty wiping the sweat from his eyes. He asked Detective Todd Thompson for help, and Detective Thompson asked Barr if someone could go into the house to get something to wipe Barr’s face. Barr apparently did not respond, and instead of going inside the house, Detective Thompson asked Mr. Hawkins to wipe the sweat from Barr’s face. Barr then asked Mr. Hawkins to “do [him] a favor” and retrieve two cell phones from inside his bedroom. Mr. Hawkins asked if his daughter Ashley would know which bedroom was Barr’s.
As Barr and Mr. Hawkins discussed the location of the phones, Detective Holmes announced to Barr, “We’re going to escort him in there to get your stuff. We don’t want him going in there.” Barr turned to look at Detective Holmes, then turned back to Mr. Hawkins and said that the phones were on top of his bed. Detective Holmes believed that Barr had consented to his entering the house because Barr continued to explain where the phones were after being told that the deputies would accompany Mr. Hawkins.
Mr. Hawkins then turned and started walking toward the house; Detective Holmes and two other deputies followed him, and Barr didn’t say anything. As the four men entered through the back door of the house, Mr. Hawkins told Detective Holmes that he was uncomfortable being the first person to go inside. Detective Holmes entered first, and he immediately saw bullets on a table next to the door. Because the officers knew that Barr had kept firearms in the house, Detective Holmes told Mr. Hawkins to wait outside, and he proceeded toward Barr’s bedroom. As he entered, Detective Holmes saw the cell phones lying on Barr’s bed. He also saw a semiautomatic rifle on the bed and a pistol on the nightstand.
Once Detective Holmes saw the firearms, he conducted a protective sweep of the rest of the house to make sure nobody else was there. When Detective Holmes walked back outside, he explained to Barr that he had not retrieved the phones because he’d found firearms in the house and he knew Barr was a convicted felon. Barr then asked Detective Holmes twice to go back and retrieve the phones so he could call an attorney, but Detective Holmes explained that he would bring the phones down to the jail later. After the deputies left, they obtained a search warrant to seize the firearms and ammunition. They found over seventeen thousand rounds of ammunition, several firearms, and two silencers.[ii]
Barr filed a motion to suppress and challenged the consent used to enter his home. Barr argued that because he remained silent when the detective stated that he would have to accompany Hawkins into the residence to get the cell phones, he did not provide consent to enter his residence. The district court denied the motion, finding that Barr did consent because he knew the deputies would not let Hawkins enter unaccompanied, yet he continued to tell Hawkins where to find his phones. Barr pleaded guilty with the right to appeal. He filed a timely appeal with the Eleventh Circuit.
The Eleventh Circuit examined the legal principles that control the issue of whether Barr voluntarily consented to the detective’s entry into his residence to accompany Hawkins, whom Barr asked to retrieve his cell phones. The court stated
The Fourth Amendment protects citizens against “unreasonable searches and seizures.” U.S. Const. amend. IV. Ordinarily, reasonableness “‘requires the obtaining of a judicial warrant’ before a law enforcement officer can enter a home without permission.” Lange v. California, 141 S. Ct. 2011, 2017 (2021). But a warrantless search is not “unreasonable” where a suspect voluntarily consents to a search. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). Whether consent was voluntary, rather than “the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.”
Several factors-none dispositive-help us determine whether consent was voluntary. See United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989). Those factors include the “voluntariness of the defendant’s custodial status, the presence of coercive police procedure, the extent and level of [his] cooperation with po-lice, [his] awareness of his right to refuse to consent to the search, [his] education and intelligence, and, significantly, [his] belief that no incriminating evidence will be found.” Id. (quoting UnitedStates v. Chemaly, 664 F.2d 791, 1023-24 (5th Cir. 1981)). While mere “failure to object to a search” does not amount to consent, see United States v. Gonzalez, 71 F.3d 819, 829-30 (11th Cir. 1996), the defendant’s body language or other conduct can manifest implied consent to a search, see United States v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002).
Critically, the mere pressure to consent to a search does not necessarily amount to coercion or duress.[iii]
The court of appeals also examined their decision in the United States v. Garcia[iv] in which a team of fourteen federal agents went to Garcia’s residence and arrested him in the front yard. Garcia was handcuffed and did not speak English. One of the agents translated for him. Garcia refused to consent to a search of his entire property but did consent to a limited search. The agents told Garcia they would not accept a limited consent. The agents told Garcia they would apply for a search warrant if he did not provide consent to search the entire property. Garcia then consented to a search of the entire property. The court of appeals stated
We found the defendant’s consent voluntary because the officers never misrepresented their authority to the defendant-they did not tell him that they already had a search warrant. Id. Although we conceded that the defendant was “under some pressure to comply” with the request to search his home, there was “no evidence that [the] officers employed any tactics that would augment the degree of coercion that is inherent in any arrest.” Id. at 362. The question is not whether the defendant wanted the search to occur-only whether he was coerced into consenting to the search.[v]
The court of appeals then examined the relevant facts of Barr’s case. When Barr told Hawkins that he wanted him to retrieve his cell phones from his residence, a detective told him that he would accompany Hawkins in the residence to retrieve the phones. As the detective said this, Barr turned and looked at him before he continued to explain to Hawkins where to find his phones. Then, Barr said nothing and did not object, when the detectives accompanied Hawkins into the residence. The court of appeals held that
Viewing the facts in the light most favorable to the district court’s ruling, Barr’s knowledge that Mr. Hawkins would be escorted by Detective Holmes, his knowing look at Detective Holmes, and his continued direction to Mr. Hawkins support the district court’s finding that Barr accepted Detective Holmes’s condition that he be able to escort Mr. Hawkins inside.[vi]
Barr argued that his consent was not voluntary because he was handcuffed. However, the court noted that the detectives did not do anything to enhance the pressure already present in any arrest. In fact, the detective sought to make Barr comfortable by having Hawkins wipe Barr’s sweat from his eyes. Barr also understood his rights, as he wanted his phone to call his lawyer. The court of appeals stated that under the totality of the circumstances, the district court did not clearly err in finding that Barr’s consent was voluntary.
Lastly, Barr argued that he did not voluntarily consent but merely acquiesced to the detective’s display of lawful authority. The court stated
[I]t is true that consent is not voluntary when a law enforcement officer “claims authority to search a home under a warrant” or otherwise “announces in effect that the occupant has no right to resist the search.” Bumper v. North Carolina, 391 U.S. 543, 559 (1968).[vii]
The court then observed that the detectives did not falsely assert to Barr that they had a warrant. Rather, they told him that they had completed an affidavit but had not yet had it signed by a judge. The court of appeals then stated
The district court interpreted Detective Holmes’s statement that he would accompany Mr. Hawkins not as an assertion of unilateral authority to enter the house, but as a conditional statement that if Mr. Hawkins went to the house, deputies would accompany him to ensure their safety. This may have amounted to pressure for Barr to consent to the search-depending on how badly he wanted his phones-but the district court did not clearly err in finding that Barr was not coerced by a show of authority.[viii]
Therefore, the court of appeals held that (1) Barr voluntarily consented to the detective’s accompanying Hawkins into the house to the bedroom as he retrieved Barr’s phones at his request, and (2) because the detectives were lawfully in the house, the discovery of the guns and ammunition in plain view did not violate the Fourth Amendment. Thus, they affirmed the denial of the motion to suppress.
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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Citations
[i] No. 21-11487 (11th Cir. Decided January 3, 2023)
[ii] Id. at 1-5
[iii] Id. at 8-9 (emphasis added)
[iv] 890 F.2d 355 (11th Cir. 1989)
[v] Id. at 9-10
[vi] Id. at 10-11 (emphasis added)
[vii] Id. at 11-12 (emphasis added)
[viii] Id. at 12
