United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
L. BUNNING, UNITED STATES DISTRICT JUDGE
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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.
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.
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.
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
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. 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.
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.
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. (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).
Standard of Review
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.
The officers entered the Defendants' home without a
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).
Defendants did not impliedly consent to the officers'
initial entry into the home.
exception to the warrant requirement is “a search that
is conducted pursuant to consent.” 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)).
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.
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.
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.
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.
“[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.
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.
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).
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.
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.
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
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.
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