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United States v. Blackaby

United States District Court, E.D. Kentucky, Northern Division, Ashland

February 12, 2018




         This matter is before the Court upon Defendants Kelsey L. Blackaby's and Kyle A. Ruark's Motions to Suppress. (Docs. # 30 and 31). Defendants' Motions were referred to Magistrate Judge Edward B. Atkins for the preparation of a Report and Recommendation (“R&R”). The R&R recommends that Defendant Blackaby's Motion to Suppress be granted in part and denied in part, and that Defendant Ruark's Motion be denied in full. (Doc. # 51). Defendant Ruark filed Objections to the R&R (Doc. # 57), which Defendant Blackaby has joined. (Docs. # 65 and 66). The Government having responded to the Defendants' Objections (Doc. # 68), and the Court having held oral argument on February 12, 2018, (Doc. # 70), the Motions are ripe for the Court's review. For the reasons that follow, the objections are sustained and the Motions to Suppress (Docs. # 30 and 31) are granted.


         On May 4, 2016, Officer Bryan Tackett, a patrol officer and school-resource officer with the Flatwoods Police Department, received an anonymous tip that a six-year-old child, the son of Kelsey Blackaby, had been smacked in the face. (Doc. # 45 at 4:10-22). After speaking with the child and investigating the matter, Officer Tackett obtained arrest warrants for Kelsey Blackaby and her then-boyfriend, Kyle Ruark, for assault in the fourth-degree, child abuse. Id. at 5:1-12. With the warrants in hand, Officer Tackett, Flatwoods Police Officer Justin Stevens, and representatives from Social Services traveled to Blackaby and Ruark's residence. Id. at 53:7-15. When they arrived at the residence, nobody was home. Id. at 5:20-23. The officers and the social workers waited outside for Defendants to return. Id.

         Shortly thereafter, the Defendants returned home and were approached by the officers. Id. at 5:23-6:3. During the initial encounter, Defendants were not advised that there were warrants for their arrest. Id. at 68:1-3. However, the officers testified that the Defendants were not free to leave. Id. at 18:23-19:3. The officers explained that they were there for an “investigation of child abuse.” Id. at 32:25-33:1. Although Officer Tackett knew both Defendants, he asked them to produce their identification. Id. at 6:13-15; 18:18-22; 33:2, 16-23. Ruark indicated that his identification was inside the residence and then entered his home to retrieve it.[1] Id. at 33:20-23. Officers Tackett and Stevens followed Ruark and Blackaby into their residence. Id. at 36:20; 43:19-22. At no point did either officer ask Blackaby or Ruark for consent to enter the home. Id. at 33:24-34:9; 91:11-15; 98:1-5.

         While Blackaby retrieved her identification, Ruark immediately proceeded to the back bedroom. Id. at 7:3-8. Officer Stevens followed behind Ruark. Id. at 7:10-14; 34:11-13; 53:17-18; 56:1-2. As he reached the back bedroom, Ruark attempted to shut the door, but Officer Stevens prevented him from doing so. Id. at 34:18-24; 76:24-77:8; 92:9- 18. After Officer Stevens prevented Ruark from closing the door and opened it, Officer Stevens observed drug paraphernalia in the bedroom. Id. at 77:4-10.

         When Ruark attempted to close the door on Officer Stevens, Officer Tackett testified that Ruark “kind of got smart” and was arrested on the assault warrant, removed from the home, and detained in a police cruiser. Id. at 6:16-21; 7:21-8:2; 93:8-13. Officer Tackett and Officer Stevens then requested and obtained consent to search the home from Blackaby. Id. at 8:4-9. During the search, Officer Tackett transported Ruark to Our Lady of Bellefonte Hospital in Ashland, Kentucky, for a DUI blood draw, and then brought him back to the residence. Id. at 10:16-11:7. As a result of that search, the officers found drug paraphernalia, as well as a marijuana grow and ammunition in the closet of the back bedroom. Id. at 58:6-18; 59:2-9. Once the search was completed, Blackaby was taken into custody. Id. at 59:13-15.

         Ruark and Blackaby were then taken to the Flatwoods Police Department, where officers conducted custodial interrogations. Id. at 60:15-61:18. Although Ruark received Miranda warnings, Blackaby did not.[2] Id. at 45:23-46:16; 60:23-61:10; 102:7-9. During their interrogations at the police department-which were not recorded, videotaped, or summarized in any report-both Ruark and Blackaby signed forms consenting to the search of their residence at Officer Stevens's request. Id. at 12:1-12; 60:1-12; 60:25-61:7. Blackaby's consent-to-search form had the word “phone” scratched out.[3] Id. at 62:18-63:12. After signing the consent-to-search form, Ruark went back to the residence with Officer Stevens and led him to the requested, incriminating items-namely, the ammunition, magazines, and a drum. Id. at 61:22-62:8. After assisting in this search of the residence, Ruark was returned to custody. Id. at 97:16-19.

         On February 9, 2017, Blackaby and Ruark were indicted by a federal grand jury. (Doc. # 1). The Indictment alleges that Blackaby, then being an unlawful user of a controlled substance, illegally possessed a firearm and ammunition in violation of 18 U.S.C. § 922(g)(3). Id. at 1-2. As to Ruark, the Indictment alleges that he, a convicted felon and an unlawful user of a controlled substance, illegally possessed a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and (g)(3). Id. at 2. The Indictment also contains a forfeiture allegation. Id. at 2-3.

         On June 29, 2017, Blackaby and Ruark filed Motions to Suppress. (Docs. # 30 and 31). After the Government filed its response (Doc. # 36), Magistrate Judge Atkins held an evidentiary hearing. (Doc. # 42). Following the evidentiary hearing, the parties submitted supplemental briefing. (Docs. # 46, 47, and 50). On October 30, 2017, Magistrate Judge Atkins filed an R&R (Doc. # 51), wherein he recommended that Defendant Blackaby's Motion to Suppress (Doc. # 30) be granted insofar as she seeks the suppression of evidence gained from her cell phone or statements made by her following her arrest without Miranda warnings, which the Government has indicated it does not intend to use as evidence in its case-in-chief.[4] (Doc. # 50 at 10). However, the R&R recommends that Blackaby's Motion to Suppress be denied in all other respects. (Doc. # 51). Similarly, the R&R recommends that Defendant Ruark's Motion to Suppress (Doc. # 31) be denied in its entirety. (Doc. # 51). On February 12, 2018, this Court held oral argument on the Motions. (Doc. # 70). This matter is now ripe before the Court upon Defendants' Objections to the R&R. (Docs. # 57 and 65).

         II. ANALYSIS

         A. Standard of Review

         The Court reviews de novo those portions of the R&R to which Defendants have specifically objected. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(3). Because Defendants' objections take issue with the R&R at every turn, the Court's analysis will track the R&R's discussion of the Motions to Suppress.

         B. The officers entered the Defendants' home without a warrant.

         “The Fourth Amendment, which applies to the states through incorporation by the Fourteenth Amendment, protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Stricker v. Twp. of Cambridge, 710 F.3d 350, 358 (6th Cir. 2013) (citing U.S. Const. amend. IV). “The home is afforded the greatest amount of protection.” Id. And “searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980). “Nevertheless, because the ultimate touchstone of the Fourth Amendment is ‘reasonableness, ' the warrant requirement is subject to certain exceptions.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006).

         C. Defendants did not impliedly consent to the officers' initial entry into the home.

         One exception to the warrant requirement is “a search that is conducted pursuant to consent.”[5] Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (citing Davis v. United States, 328 U.S. 582, 593-94 (1946)). “Consent to enter need not be explicit.” Smith v. City of Wyoming, 821 F.3d 697, 709 (6th Cir. 2016). It “may be given in the form of words, gesture or conduct.” United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc). “In whatever form, consent has effect only if it is given freely and voluntarily.” Id. (citing Bumper v. North Carolina, 391 U.S. 543, 548 (1968)). But, consent “is not lightly to be inferred, ” Simmons v. Bomar, 349 F.2d 365, 366 (6th Cir. 1965), and a search based on consent requires more than “an expression of futility in resistance to authority or acquiescing in the officers' request.” United States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999). The Government bears the burden of proving, “by clear and positive testimony, ” that the officers had consent to enter the residence. United States v. McCaleb, 552 F.2d 717, 721 (6th Cir. 1977) (citing Amos v. United States, 255 U.S. 313 (1921)).

         Here, it is undisputed that neither Officer Tackett nor Officer Stevens asked for permission to enter the Defendants' home. (Doc. # 45 at 33:24-34:9; 91:11-15; 98:1-5). Rather, in response to and in compliance with the officers' demand for the Defendants' identification and the social workers' request for a “pill count, ” Defendants walked into their home to retrieve the requested items. Id. at 6:13-15; 18:18-22; 33:2, 16-23; 75:12-17. The officers simply followed behind them. Id. at 36:20; 43:19-22.

         The Government argues that the Defendants impliedly consented to the officers' entry into their home, focusing on the fact that officers did not have weapons drawn and the Defendants' failure to object to the officers' presence. (Doc. # 50 at 5-6). By contrast, the Defendants claim that the officers did not have consent to enter their home and that mere acquiescence to the officers' entry does not constitute valid consent to enter or search the premises. (Docs. # 46 at 7-9; 47 at 3). The Court agrees with the Defendants on this point.

         The R&R concluded that the “Defendants knowingly and voluntarily permitted the officers to enter their residence” and that such “action may not now be undone.” (Doc. # 51 at 9). To support that finding, the R&R pointed to the officers' testimony that they “believed they had consent to enter” and the Defendants' failure to “provide[ ] evidence of any objection to the officers' entry into their residence” or “evidence of coercion or duress.” Id. at 6-7. Additionally, the R&R relied on the Sixth Circuit's decision in Carter. Id. at 8-9.

         The Defendants' objections to the R&R's finding of implied consent are well taken. First, a “determination of consent to enter must be “judged against an objective standard.” Illinois v. Rodriguez, 497 U.S. 177, 188 (1990). The proper inquiry, therefore, is: “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991). The question is not whether the officers believed they had consent to enter, and the officers' subjective beliefs about their permission to enter the Defendants' home are irrelevant. Thus, in this respect, the R&R, which appears to apply a subjective, rather than an objective, standard, is unsound.

         Second, “[w]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntary given” and “[t]his burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” Bumper, 391 U.S. at 548-49. Because the Government bears the burden of proof, the R&R's repeated mentions of the Defendants' failure to produce evidence-regarding their failure to object to the officers' entry, their lack of knowledge of their ability to refuse consent, or any coercion or duress-indicate an improper focus. It is not the Defendants' burden to establish that they did not provide consent; it is the Government's burden to prove that they did.

         Third, and most importantly, the R&R's reliance on Carter is misplaced. In Carter, officers knocked on the door of the defendant's hotel room. After the defendant opened the door, “the officers asked Carter if they could enter the hotel room and speak to him.” Carter, 378 F.3d at 587. “In response, Carter stepped back and cleared a path for the officers to enter.” Id. On these facts, the Sixth Circuit found that the defendant had impliedly consented to the officers' entry into his hotel room. Id. at 588.

         The R&R analogized the present case to Carter. There are, however, significant factual differences between Carter and this case-namely, the defendants were not inside their home when they were first approached by the officers and the officers did not ask for permission to enter. These very differences led the Sixth Circuit to distinguish Carter and reach a contrary conclusion in United States v. Little, 431 F. App'x 417 (6th Cir. 2011).

         In Little, the officer made contact with the defendant on the front porch of his mother's home. Id. at 418. After the officer indicated a desire to speak with the defendant at the police department, the defendant “asked if he could put on a shirt.” Id. The officer “agreed and followed defendant into the house without asking permission to enter.” Id. In reversing the district court's denial of defendant's motion to suppress, the Sixth Circuit held that the officer's entry into the home violated the Fourth Amendment and required suppression of the “evidence acquired as a result of that unlawful entry.” Id. at 420-21.

         Although the defendant in Little was cooperative and raised no objection when the officer followed him inside, the Sixth Circuit rejected the argument that the defendant had impliedly consented to the officer's entry into the home:

Had Officer Harper asked for permission to enter and had defendant behaved in the same manner, we would have no difficulty in affirming the district court's finding of implied consent. Unfortunately, [Officer] Harper neglected to do so and logic dictates that a person cannot consent to a request that has not been made-particularly in light of the fact that the government bears the burden of showing that consent was given voluntarily.

Id. at 420.

         The Court recognizes that Little is an unpublished case, and thus, not precedentially binding under the doctrine of stare decisis. United States v. Sanford, 476 F.3d 391, 396 (6th Cir. 2007). Nevertheless, the Court finds Little and its logic highly persuasive. The United States argues that any reliance on Little is “misplaced” because the decision is unreasonable and contrary to Supreme Court precedent. (Doc. # 68 at 7). That argument fails to convince the Court to look past Little.

         The Sixth Circuit's holding in Little is not incompatible with Supreme Court precedent, which holds that the voluntariness of a person's consent to search “is a question of fact to be determined from the totality of all the circumstances.” Schneckloth, 412 U.S. at 227. In Little, the Sixth Circuit was considering whether consent had been given at all, not whether the defendant's consent was voluntary. The Little Court acknowledged that the Sixth Circuit had “not considered whether the totality of the circumstances can ever support a finding of implied consent in the absence of an explicit request for permission” and stopped short of answering that question. Little, 431 F. App'x at 420. The Sixth Circuit did, however, join the Eleventh Circuit and hold that “consent cannot be inferred by the simple act of disengaging from conversation with an officer and walking into the house.” Id. (citing Bashir v. Rockdale Cty., Ga., 445 F.3d 1323, 1329 (11th Cir. 2006)).

         The Court's reliance on Little is further supported by United States v. Harvey, 901 F.Supp.2d 681 (N.D. W.Va. 2012)-a published case from the Northern District of West Virginia with strikingly similar facts. In Harvey, the officer conducted a lawful traffic stop in front of the defendant's home. Id. at 685, 690. During the traffic stop, the officer asked the defendant for his name and date of birth. Id. at 690. When dispatch could not return an individual with defendant's name and date of birth, the defendant informed the officer that his identification was inside the residence. Id. The defendant then entered his home, escorted by the officer. Id. The officer did not ask for permission to enter and the defendant did not object to the officer accompanying him. Id. The Northern District of West Virginia rejected the argument that the defendant had impliedly consented to the officer's entry into his home and found that the defendant's “silence and lack of resistance in response to” the officer's “accompaniment evince[d], at most a mere acquiescence to a show of lawful authority”:

In the absence of any gestures or conduct that could reasonably be construed as consent, [the defendant's] implied consent would have to be premised exclusively on his silence and lack of resistance to [the officer's] actions. Notably, the government has cited to no case stating that consent to search can, in the first instance, be inferred solely from the silence of a defendant who was never asked. Rather, the weight of the authority holds that “‘the government may not show consent to enter from ...

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