United States v. McGraw, No. 08-2705 (7th Cir. 07/02/2009).

While executing a search warrant for drugs inside a Fort Wayne, Indiana apartment building, police officers noticed that the building had several housing-code violations. Police called a neighborhood code-enforcement officer, who arrived and determined that the apartment building must be condemned. 

When Frank McGraw, the second- floor tenant, arrived on the scene, officers instructed him to secure his dog and collect the belongings he would need for a few days. McGraw consented to the search three times before leaving the apartment building with his dog. During that search, police observed narcotics in plain view, and McGraw was charged with possession of crack cocaine.

McGraw moved to suppress the evidence, claiming that any consent he gave was not voluntary but instead constituted acquiescence to the officers' display of authority. The district court denied the motion, finding that McGraw's consent was voluntary.

We affirm. The district court did not clearly err in finding that McGraw voluntarily consented to the officers' search. The court analyzed the totality of the circumstances and determined that despite the way in which some of the officers phrased their request to search McGraw's unit, McGraw voluntarily consented to their search. The court properly denied McGraw's motion to suppress.

The Fourth and Fourteenth Amendments safeguard the "right of the people to be secure in their… houses… against unreasonable searches and seizures." A warrantless search of a suspect's house without exigent circumstances is presumptively unreasonable, Payton v. New York, 445 U.S. 573 (1980), and the exclusionary rule generally requires suppression of the evidence obtained from such searches. However, this general rule is subject to well-recognized exceptions, including the suspect's voluntary consent to the search. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

Consent-search cases distinguish between voluntary consent and consent resulting from duress, coercion, or acquiescence to authority. This is a "question of fact to be determined from the totality of all the circumstances," id. at 227, and the government bears the burden of proving voluntary consent by a preponderance of the evidence, United States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000).

Factors bearing on this inquiry include:

(1) the person's age, intelligence, and education,

(2) whether he was advised of his constitutional rights,

(3) how long he was detained before he gave his consent,

(4) whether his consent was immediate, or was prompted by repeated requests by the authorities,

(5) whether any physical coercion was used, and

(6) whether the individual was in police custody when he gave his consent.
United States v. Raibley, 243 F.3d 1069, 1075-76 (7th Cir. 2001)

In this case the district court concluded that the government satisfied its burden of proving voluntary consent.

The parties agree that we review that determination for clear error. See Raibley, 243 F.3d at 1076.  "A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Rice, 995 F.2d 719, 722 (7th Cir. 1993). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985). Stated differently, " '[i]f the district court's account of the facts is plausible in light of the record viewed in its entirety, we may not reverse that decision even if we may have decided the case differently.' " Raibley, 243 F.3d at 1076.

We agree with the district court that this is a close case. On the one hand, considerable evidence suggested that McGraw voluntarily consented to the officers' search. On the other hand, there is also some evidence that weighs against a finding of voluntariness. Most importantly, in their encounter with McGraw, both Squadrito and Salomon arguably implied that they had a right to search McGraw's apartment without his permission.

Faced with competing evidence, the district court looked to the "totality of the circumstances" in determining whether McGraw's consent was voluntarily given. The court treated Salomon's and Squadrito's suspect language as a "factor [that] weighs against a finding of voluntary consent," and suggested that even in the presence of such language, the proper inquiry is "whether such claims [of authority] outweigh the other factors suggesting consent was voluntary."

We are not left with "the definite and firm conviction that a mistake has been committed." United States v. Rice, 995 F.2d 719, 722 (7th Cir. 1993). Keeping in mind the deference due the district judge, who is in a superior position to observe the witnesses and determine exactly what happened and how it happened, we conclude that the court did not clearly err.

AFFIRMED.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

 

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