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stating that it was not improper for officer to rely on prior consent to invite additional officers to enter the home
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Case No. 99-CR-665 B
September 13, 2000.
REPORT AND RECOMMENDATION
Defendants, Sean Christopher Grow and Kimberly Bowman, are charged by indictment in six counts of various controlled substance violations of the laws of the United States and in a seventh count with possession of firearms in furtherance of a drug trafficking crime ( 18 U.S.C. § 924(c)) (File Entry # 1). Defendant Kimberly Bowman made a motion to suppress evidence obtained from the search of her residence, which was made without a warrant, and also from her garage that was made pursuant to a search warrant (File Entry # 16). Defendant Sean Grow filed an identical motion to suppress (File Entry # 14).
Hearing was held on the motion to suppress on May 16, 2000. Post hearing briefing was ordered. The defendants' joint memorandum on their motion was filed on June 27, 2000 (File Entry #50). The government filed its reply on July 17, 2000 (File Entry #60). However, the memorandum was never delivered to the Magistrate Judge until August 17, 2000.
The government apparently did not comply with the local rule requiring the filing and service of two pleadings, one to the district judge and one for the assigned magistrate judge when a reference has been made to the magistrate judge DUCivR 5-1(a)(B). In this case service was made only on the District Judge.
The case has been referred to the magistrate Judge under 28 U.S.C. § 636 (b)(1)(B). This report and recommendation is submitted pursuant to the reference on the defendants' motions to suppress.
Evidence
At the hearing, it was represented that the residence in question was rented by Bowman and Grow also resided there (Tr. p. 5). During the search of the residence, quantities of methamphetamine, drug paraphernalia, marijuana and various glassware and chemicals were found (Tr. pp. 5-6). A weapon was also found.
Melody Gray, a detective with the Salt Lake City Police Department, was acting as a narcotics detective on September 23, 1999. She was investigating possible drug activity at 962 Elgin Ave., Salt Lake City. The investigation was commenced by a drug hotline report of narcotics activity. Citizens call in about drugs and information is transferred to narcotics intelligence (Tr. p. 9). The drug activity was not described in detail. The police determined to engage in a "knock and talk". Officer Gray and three other detectives, Chris Ward, Dave Weirman, and Dan Wendelboth, went to the Elgin Avenue residence at about 3:15 p.m. on September 23, 1999 (Tr. pp. 10-11).
This is an investigative procedure where an approach is made to a home suspected as a source of drug involvement. Officers act without a warrant and seek permission of the home occupants to conduct a search. It is also called a "walk and talk."
Officer Gray and Detective Weirman went to the door. Detectives Ward and Wendelboth waited around to the side of the house (Tr. p. 11). Gray knocked on the door and a young girl, Nicolette Barney, about 8 years old, answered the door. Gray asked the girl if her "mom or dad was at home." The girl left but came back and said her Mom was in the shower. Gray told the girl to tell her Mom that the police were there and to ask if the mother would come to the door (Tr. p. 11). The child left and defendant Kimberly Bowman appeared wearing a towel (Tr. p. 12). Gray identified herself and Detective Weirman and asked if Gray could enter the house to talk to Bowman for a minute. She said yes (Tr. p. 12). Gray entered by herself because Bowman was not dressed. Gray asked Bowman if she would like to put on a robe, which she did (Tr. p. 13). Gray stood in the hall, and Bowman was in the bathroom. Gray spoke to Bowman and said that the police had received complaints from the neighborhood that there was possible drug dealing going on (Id.). Gray asked why the neighbors would say that. Bowman responded that she had people coming over and that a gentleman had worked on her car in front of the neighbor's house and that had caused the neighbors to be angry (Tr. p. 14).
Gray asked Bowman if the officers could look around the house for drugs and Bowman said "yes" (Tr. p. 14). Gray asked Bowman if she would like to get dressed before the officers came in and Bowman said yes and went into her bedroom and shut the door (Tr. pp. 14-15). The officer waited one or two minutes. The officer heard noises like cellophane or baggies being "crinkled." The officer then called for the other officers to enter the house. All three other officers entered. One officer, Detective Weirman, went to Officer Gray's side and stood by her. A Detective Ward went into the basement (Tr. p. 15). After Ward got in the basement he called Gray to come downstairs (Id.). Government Exhibit Four shows what was observed in the basement, by the officers, which was objects and paraphernalia of drug use and manufacture (Tr. pp. 16-17). The other two officers were upstairs. Detective Weirman went in the master bedroom and Detective Wendelboth in the kitchen with defendant Bowman (Tr. p. 17).
Detective Weirman found a small Tupperware container with what appeared to be methamphetamine and a purple baggy of methamphetamine. An SKS rifle was found (Tr. p. 18). Wendelboth had a conversation with Ms. Bowman in the kitchen. Wendelboth asked Ms. Bowman how to get into the garage and Ms. Bowman requested the officers to stop searching. The garage was detached from the house (Tr. p. 18). The officers then stopped searching (Tr. p. 19). Officer Gray placed defendant Bowman under arrest for the possession of a controlled substance. Officer Gray believed Ms. Bowman fully understood who the officers were and the request to search (Tr. pp. 19-20). Ms. Bowman affirmatively answered Officer Gray's request to search affirmatively. After the arrest, Ms. Bowman was given a Miranda warning and agreed to make a statement. What Bowman said was used, with other evidence, to obtain a search warrant (Tr. p. 20). Ms. Bowman said she and her boyfriend, Sean Grow, used methamphetamine. She had used it since she was 15 years old and had snorted it and then started smoking it. Bowman said she had sold methamphetamine to get needed extra money (Tr. p. 21).
Miranda v. Arizona, 384 U.S. 436 (1966).
Officer Gray began to draft an affidavit for a search warrant. Exhibit 1 is the affidavit for a search warrant with Officer Gray's signature (Id.). Judge William Barrett, Third District Court, State of Utah, issued a search warrant at about 7 p.m. that evening (Tr. p. 22).
Drug Enforcement Agency (DEA) agents had been contacted. Special Agent Barnes arrived. He spoke to Bowman and explained to her it would be more timely to get into the garage and get everything taken care. Barnes read Bowman her Miranda rights, explained her rights, advised her she did not have to sign a consent to search form unless it was voluntary. Defendant Bowman signed a consent to search (Tr. p. 23, Exhibit 2). Gray signed as a witness to the consent (Tr. p. 24). No force was used. The garage was entered when Bowman signed the consent to search form (Tr. p. 25). The house was reentered when the warrant was obtained. The consent to search described the premises at 962 Elgin as the place to be searched, along with the garage, out buildings, vehicles, persons and curtiledge (Exhibit 2).
In the garage a methamphetamine laboratory was set up. Several empty containers of pseudo-ephedrine were found. Fifty one pounds of red phosphorous was located along with iodine crystals (Tr. p. 25). Exhibit 3 (blue paper) is the evidence list as to items taken from the garage (Tr. p. 26).
The original reason for going to the defendants' premises was because of a none-to-specific report of possible drug dealings (Tr. p. 27). The procedure is to knock and talk to the adult in charge of the premises and get consent to search (Tr. p. 28). The day was warm. When Ms. Bowman came to the door, Officer Gray and another officer were present (Tr. p. 32). The other two officers were out of sight (Id.). After Officer Gray entered, she asked Ms. Bowman if she wanted to put on a robe. Ms. Bowman went into the bathroom with the door open. This was when there was the discussion about drugs (Tr. pp. 33-34). Ms. Bowman said she wanted to get dressed and went to the bedroom and closed the door (Tr. p. 34). The officer did not request permission to "search" the house, but to "look around for drugs, to clear this up" (Tr. p. 34). Officer Gray told Bowman she could get dressed before the officers came in (Tr. p. 35). Officer Gray heard "crinkling sounds" behind the bedroom door (Tr. p. 36). This was not mentioned in the police report or the application for a search warrant (Tr. pp. 36-37). The other officers were invited into the house by Gray and the search started. When Ms. Bowman came out of the room Officer Gray had gone downstairs and another officer was present (Tr. pp. 37-38). At that time Ms. Bowman asked that the search stop. The search stopped and officers went outside (Tr. pp. 38-39). The officers waited on the porch and the DEA was called (Tr. p. 40). Items of drug activity had been located in the bedroom and in the basement before Bowman stopped the search. Three or four other officers were present. Around 4:00 p.m. a conversation between DEA Agent Barnes and Ms. Bowman took place (Tr. p. 41). Ms. Bowman never requested to put on additional clothing other than the tank top and shorts she was wearing (Id.). The child was with DCFS (child protective services). Ms. Bowman was given cigarettes (Tr. p. 42).
The officers started to search the garage when Bowman signed the consent form, but they did not go back into the house until the search warrant was obtained (Tr. pp. 45-46).
When Officer Gray asked Ms. Bowman to look around for drugs, she was in the bathroom with the door opened. The two spoke face-to-face. Ms. Bowman said "yes" to the request (Tr. pp. 48-49). Ms. Bowman had consented to the look around for drugs before the officers entered the house and before Officer Gray went to the basement. Detective Ward first went down into the basement (Tr. p. 50). He called for Gray to come down and observe what Ward had found.
Detective Dan Wendelboth, Salt Lake City Police Department (SLCPD), DEA Metro Task Force, was involved in the "knock and talk" at the Elgin Avenue premises (Tr. p. 52). On arrival, Wendelboth went to the east side of the house while Officer Gray and another officer went to the front door. On Wendelboth's entry, he eventually went into the kitchen (Tr. p. 53). He was told the officers had consent to search the house (Tr. p. 54). Wendelboth spoke with Bowman in the kitchen (Tr. p. 54, see Exhibits 5 and 6). There was a Pyrex pot sitting next to the stove with a white powdery substance splattered all over the stove and glass beaker, which was consistent with meth lab paraphernalia (Tr. p. 58).
Officer Wendelboth's attention was drawn to the garage and he asked Bowman if it was okay to search the garage (Tr. p. 56). Bowman got very nervous, started stammering and withdrew her consent to search (Tr. p. 57). She said, "I don't want you guys to search anymore." Wendelboth replied okay and Ms. Bowman was placed under arrest in handcuffs and taken out of the house. The child was taken out and the house was secured until the warrant could be obtained (Tr. p. 57). Wendelboth communicated Ms. Bowman's withdrawal of consent to search to the other officers (Tr. p. 58). They stopped searching, Wendelboth then participated in preparing a search warrant affidavit (Tr. p. 58).
After Officer Gray went in the house, she later appeared and told the officers to come in (Tr. pp. 63-64). Wendelboth walked through to get the layout and went to the kitchen. Ms. Bowman was in the bedroom (Tr. pp. 64-66). She came out and told Wendelboth to stop searching (Tr. p. 68). A search warrant was obtained from the state court judge (Tr. pp. 71-72). Ms. Bowman was placed under arrest after she withdrew her consent to search (Tr. p. 74).
Brent Barnes, Special Agent Drug Enforcement Administration (DEA), a clandestine lab coordinator, was involved in the search at 962 East Elgin Avenue (Tr. p. 76). He received a page that there was a lab at that address. The information was received from Officer Gray (Tr. pp. 76-77). Barnes asked Gray if she wanted Barnes to talk to Bowman and see if she would consent to a search (Tr. p. 77). He talked to Ms. Bowman on the front porch where she was sitting. Barnes filled out a consent form, read Ms. Bowman her rights and presented the form to her and said it was not an admission of guilt and that the agent was not going to interview her. He told her he would tell the prosecutor who handled the case that she had cooperated but could not promise her anything (Tr. p. 78, Government Exhibit 2). He had identified himself. The consent form was signed by Bowman at 4:30 p.m. (Id.). No force was used to obtain consent (Tr. p. 80). She was handcuffed (Tr. p. 83). She had no questions (Id.). Barnes did not talk to her about getting a warrant. He may have said it would be two to three hours to get a warrant and he had not had a warrant denied previously (Tr. pp. 84-85) which was true. He may have said the officers had the evidence to obtain a warrant (Tr. p. 85). She was told she did not have to sign the document and it was up to her (Tr. p. 86).
Kimberly Bowman testified that on September 23, 1999 she resided at 962 East Elgin Avenue (Tr. p. 88). She was in the shower when officers arrived and her daughter said the police were at the door. Bowman turned off the water, grabbed a towel and went to the door (Tr. p. 88). She observed Officer Gray with three other officers. Officer Gray said she had received information from one of Bowman's neighbors that there was drug activity at the house. Gray asked if Bowman would come out and talk about it and Bowman replied not in a towel. Gray asked Bowman if she would like to get dressed and she said she would (Tr. p. 89). Bowman turned to get her clothes and Gray followed Bowman in the house (Id.). Bowman did not invite Gray into the house. Gray said she was there for a knock and talk and asked about the neighbor's complaint. Bowman said it was because of friends that would work on cars in the garage (Tr. p. 90). Bowman had gone to her bedroom and closed the door (Id.). Bowman had not given consent to Gray to look around the house (Tr. p. 91).
Bowman threw on some clothes and went out of the bedroom (Tr. pp. 91-92). Gray was still there. She noticed the other officers were gone and she could see the kitchen and an officer going through things on the kitchen counter (Tr. p. 92). She walked to the kitchen and said she did not think it was right for the officer to be "going through my shit like this" (Id.). Bowman said the officer said we can stop anytime. The officer said just ask me to stop and Bowman said "I'm asking you to stop" (Tr. p. 92).
Officer Gray was downstairs, Bowman said she heard an officer say "we've already seen enough." She was handcuffed. There was no talk about the garage at that time (Tr. p. 93). She was taken to the front porch, she was told she was under arrest when she was in the kitchen. She thought there were 10 to 20 police cars on the street (Tr. p. 94).
Agent Brent Barnes approached Bowman. She asked for shoes and cigarettes but an officer said they could not go back in the house and get anything. Some cigarettes were provided (Tr. pp. 95-96). Bowman was freezing. Barnes said he had a form for Bowman to read and explained it to her. Barnes said he had never had a search warrant denied in such cases, it would take a couple of hours for him to get the warrant and it would look good for her to sign it and he would tell the prosecuting attorney that Bowman cooperated (Tr. p. 97). Bowman signed the consent (Id.). The garage was locked. Bowman and her daughter were present. Her daughter was playing in the yard (Tr. p. 98).
She signed the form because she knew the officers would be getting in there anyway and it was a matter of saving time (Tr. p. 100). Agent Barnes did not raise his voice or display force (Tr. p. 101). She consented because she thought the warrant was inevitable (Tr. pp. 102-103). Bowman was the lessee of the premises which included the garage (Tr. p. 104).
Officer Gray said she asked Bowman if she could come inside to talk, that was the procedure (Tr. p. 106). Bowman said Gray could come in (Id.).
The search warrant affidavit (Gov. Exhibit I) recites a finding of drug materials in the bedroom, and the basement, along with drug paraphernalia. There is no apparent inconsistency between the testimony of the prosecution officers and the facts recited in the warrant. Based on the above evidence the court enters the following:
Findings of Fact
1. Salt Lake City Police Officers, engaged in anti-narcotics enforcement received a somewhat vague report that drug trafficking was taking place at 962 Elgin Avenue, Salt Lake City, Utah. The report would not support a search warrant or other warrantless entry onto the premises without consent of the premises occupant. Defendant Kimberly Bowman leased the premises and defendant Sean Grow was a co-resident.
2. Four officers from the Salt Lake City Police Department (SLCPD) determined to conduct a "knock and talk" procedure at the Elgin Avenue premises. The procedure is to go to the premises, knock and obtain permission from the responsible person at the premises to conduct a search of the premises for drugs based on consent of the person having control over the premises. On September 23, 1999 four officers under the leadership of Officer Melody Gray went to the Elgin Avenue premises at about 3:15 p.m. Officers Gray and Detective Weirman when to the front door, Officers Ward and Wendelboth went to the side of the house, essentially out of sight, so as not to create a showing of significant force. Gray knocked on the premises door and an eight year old child, Nicolette Barney, daughter of Kimberly Bowman, came to the door. Officer Gray asked if the child's "mom or dad" was home. The child left and returned and said her mother was in the shower. Gray told the child to tell her mother that the police were there and to ask if her mother would come to the door. Thereafter, Kimberly Bowman appeared at the door wearing a towel.
3. Officer Gray identified herself and Detective Weirman. Officer Gray asked if she could come into the house to talk to Bowman for a minute. Gray did not ask Bowman to step outside. Bowman replied to Gray's request," yes." Gray stepped inside alone because Bowman was not dressed. Gray suggested Bowman put on a robe and Bowman went to the bathroom, leaving the door open. Gray advised Bowman that the police had received complaints of drug dealing going on at the premises. Gray asked why neighbors would say that. Bowman said it was because she had friends who had repaired cars at the premises which the neighbors didn't like.
4. Officer Gray asked if the "officers" could "look around" the "house for drugs" to clear up the matter. Bowman was apparently aware that other officers were outside although not in her immediate presence. She unhesitantly said "yes". No force, threats, or pressure was used against Bowman before she said "yes." No condition was imposed by Bowman. After receiving permission for the officers to "look around" for drugs, Officer Gray asked Ms. Bowman if she would like to get dressed before the male officers came in and Bowman said "yes" and went into her bedroom and closed the door. Gray did not indicate the other officers would not come in nor was Ms. Bowman's prior consent withdrawn or limited at that time. She fully understood the request to search when she said yes. The offer for Ms. Bowman to get dressed was a courtesy not a condition to the search. Gray waited for one to two minutes. She heard a cellophane or crinkling noise "like a baggy" and then had the other officers enter. Gray did not attempt to identify the noise nor did she go into Bowman's bedroom. All three officers entered, one went to the basement, one came to Gray's side, and one officer, Detective Wendelboth, went into the kitchen after generally moving around the house.
5. Officer Gray was called to the basement where another officer, Detective Ward, had found drugs and methamphetamine laboratory paraphernalia. Detective Weirman went into the master bedroom. He found a container with a residue of methamphetamine and a baggie of methamphetamine. He also found a rifle.
6. Detective Wendelboth entered the home and eventually went to the kitchen. Defendant Kimberly Bowman came into the kitchen and there was some conversation. Wendelboth's attention had been drawn to the garage. He asked Bowman if it was okay to search the garage. Bowman got very nervous and started to stammer. Ms. Bowman said it was not right for the officers to be searching her stuff. Wendelboth told her she could stop the search and Ms. Bowman said she did not want the officers searching anymore. Wendelboth said "okay" and the search stopped. All officers were notified to cease the search and no further search occurred. Bowman was then arrested based on the drugs and other items found before she terminated the search, for violations of Utah narcotics law, and moved outside the house which was sealed. The officers commenced to prepare an affidavit and documents for a search warrant. A Drug Enforcement agent (DEA) was contacted.
7. After the arrest, a Miranda warning was given to Bowman and she agreed to make a statement. She said she used methamphetamine in various ways and sold it to get needed money. This statement, along with evidence previously obtained, was used to get a search warrant to further search the house.
8. DEA Agent Brent Barnes arrived. He was a clandestine laboratory coordinator. Barnes asked Gray if Barnes could talk to Ms. Bowman who was sitting on the porch dressed in a tank top and shorts. She was handcuffed. Barnes approached Ms. Bowman to see if she would consent to a search. Ms. Bowman did not ask for additional clothing and the weather was warm. No threats were made, but Barnes said he had never been turned down for a warrant before for a laboratory, which was true. He said he had enough evidence to get the warrant. He said if Bowman gave consent it would save a lot of time. Ms. Bowman was provided the cigarettes. She was given a consent to search form. She believed a search would be made anyway and signed the consent form, which included permission to search the garage (Exhibit 2) this was at about 4: 30 p.m. Ms. Bowman had been given a Miranda warning by Agent Barnes and was told not to sign the consent form unless the act was voluntary.
9. A search was made of the garage based on the consent form and a methamphetamine laboratory was found. A search warrant was obtained the same day, September 23, 1999 from Utah Third District Court Judge William W. Barrett. The warrant was used to further search the premises. The warrant was based on information in the initial entry and not on what was found in the garage. The warrant authorized a search of the garage.
Discussion
The defendants' theory for suppression is that Kimberly Bowman did not consent to the officers' entry into her home nor gave voluntary permission for the search of her house, where Sean Grow also lived. It is also contended the consent to search for the garage obtained by Officer Barnes was involuntary. The United States contends there was valid consent given by Bowman to the entry into the home and for a search. That Bowman later gave voluntary consent to the search of the garage and the search warrant later obtained was valid. It is also asserted that the doctrine of inevitable discovery would apply to the search under the warrant as to the items that would have been found in the garage. The warrant authorized the search of the garage.
The officers in this case conducted a "knock and talk" or "walk and talk" which must be based upon the premises occupant giving valid consent to the search of the premises.
Consent To Entry
In this case, the first issue is whether there was voluntary consent to Officer Gray's entry into the house. Gray had knocked on the door and did not enter until after Kimberly Bowman appeared. Officer Gray identified herself and the other officer in her immediate presence. Officer Gray asked Bowman if Gray could enter and talk to Bowman for a moment. Bowman said Gray could enter. No threat or coercion of any kind was employed. This authorization was fully voluntary within the standard of Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Illinois v. Rodriguez, 497 U.S. 177 (1990); United States v. Davis, 40 F.3d 1069 (10th Cir. 1994). The consent must be determined from the totality of the circumstances. United States v. Lowe, 999 F.2d 448 (10th Cir. 1993); United States v. Lang, 81 F.3d 955 (10th Cir. 1996); United States v. Winningham, 140 F.3d 1328 (10th Cir. 1998). Based on the evidence and findings in this case, Kimberly Bowman consented to Officer Melody Gray's initial entry into the home. The entry was lawful.
Consent To Police To Search The Home
A walk and talk or knock and talk is lawful and constitutional if it meets the standards for a valid consent search. United States v. Cruz, 838 F. Supp. 535, 542-3 (D. Utah 1993) (citing cases). The standard for a consent search is noted in Schneckloth v. Bustamonte, supra. The prosecution has the burden to establish consent. Id. p. 222. The court said "voluntariness" . . . "is itself an amphibian." Id. p. 224. The court in Schneckloth referenced cases dealing with confessions. Id. pp. 224-225. The question of voluntariness is one "of fact to be determined from the totality of all the circumstances." Id. p. 227. "While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as a sine qua non of effective consent." Id. The absence of coercion is the test. It is not required that the suspect know she may refuse consent. Id. p. 230. Advice of such right has been "universally repudiated" as a requirement. Id. p. 231. The issue is distinct from interrogation. Id. p. 232. Consent is involuntary if coerced by threats or force or "submission to a claim of lawful authority." Id. p. 233. Sixth Amendment trial standards of waiver are inapplicable. Id. pp. 253-242. Waiver not an applicable doctrine Id. p. 245. The consent need only be "in fact voluntarily given, and not the result of duress or coercion." Id. pp. 248-249.
It is not a question of whether a defendant acts in one's ultimate self interest but only one of voluntariness. United States v. Mendenhall, 446 U.S. 544 (1980). The issue is whether a reasonable person would feel "free to decline the officer's request or otherwise terminate the encounter." Florida v. Bostick, 501 U.S. 429, 437-38 (1993). There's no presumption against consent to search. United States v. Price, 925 F.2d 1268 (10th Cir. 1991). Non-verbal contact can constitute consent. United States v. Gordon, 173 F.3d 761 (10th Cir. 1999). It may be implied from the circumstances, United States v. Garcia Fernandez, 955 F. Supp. 1361 (D. Utah 1996) 153 F.3d 729 (10th Cir.). The consent must be freely and voluntarily given. United States v. Pena, 143 F.3d 1363 (10th Cir. 1998).
Although, some decisions from the Tenth Circuit have spoken of "freely and intelligently given," United States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998); United States v. McRae, 81 F.3d 1528, 1537 (10th Cir. 1996); United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir. 1995); United States v. Rodriguez-Garcia, 983 F.2d 1563 (10th Cir. 1993), this reference appears to emanate from a pre Schneckloth decision. See the Villano v. United States, 310 F.2d 680,684 (10th Cir. 1962) referenced in Rodriguez-Garcia, supra at p. 1567.
Recently, in United States v. Davis, 197 F.3d 1048, 1052 (10th Cir. 1999) the court restated this same proposition citing United States v. Soto, 988 F.2d 1548, 1557 (10th Cir. 1993).
The language, "intelligently", might be claimed to be inconsistent with Schneckloth. The defendant seems to suggest that some special knowledge by defendant was required to meet the consent standard. The "knowing" standard as to the rights being given up was expressly rejected by the Supreme Court in Schneckloth. Obviously, the Court of Appeals must follow Schneckloth and a language of the Court of Appeals' opinion could not have been intended to be an expansion or different from the Supreme Court's standard. Therefore, the language consistent with the Supreme Court's standard in Schneckloth, must be interpreted to mean that the defendant must understand that she is authorizing a search.
In this case, it is clear from the circumstances and the execution of the written consent, that the defendant understood he was authorizing the police to search her premises. The defendant did understand she was authorizing a search when she gave Officer Gray and the other officers authority to look around for drugs.
In United States v. Cruz, supra p. 543, this court upheld a knock and talk consent search and observed:
The precise issue is whether under the totality of the circumstances a valid consent to search was given by defendant Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Recently in United States v. Butler, 966 F.2d 559 (10th Cir. 1992) the court stated the proper standard: To admit evidence obtained from a search, wherein consent was given, the following must be found:
(1) There must be a clear and positive testimony that consent was unequivocal and specific and freely given; and
(2) The government must prove consent was given without duress or coercion, express or implied.966 F.2d p. 562.
The facts of this case meet the Butler standard for a consent search. There was less ambiguity and confusion in this case than in United States v. Maynes-Ortega, 857 F.2d 686 (10th Cir. 1988) where the search was upheld and found to be validly based on consent. See also United States v. Wilkinson, 926 F.2d 22 (1 Cir. 1991); United States v. Benitez, 899 F.2d 995, 998-99 (10th Cir. 1990); United States v. Medlin, 842 F.2d 1194 (10th Cir. 1988).
In this case defendant was in his own home. At the time consent was requested no guns were displayed. No threats were made. The officers had identified themselves. Only two officers were present when consent was given. It is natural that other persons on the premises of a drug trafficker's home would leave when the police arrived. The persons were not told to leave but left on their own. Although defendant was nervous, the circumstances do not show any confusion or lack of understanding by the defendant of the officer's request. The defendant's initial response was not mere acquiescence in the request but rather was an affirmative authorization made immediately on request. There was no hesitation. Before the search commenced, Officer Metcalf again asked defendant if the search of the house was authorized. Again defendant answered affirmatively. The scope of the search was made known to the defendant to include the full premises. There was no misunderstanding by defendant. The search was within the scope of the authorization. Florida v. Jimeno, 500 U.S. 248, ___ — ___, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991); United States v. Gay, 774 F.2d 368, 377 (10th Cir. 1985). The defendant at no time asked that the search cease, even after drugs and guns were first found. There is no presumption against consent, United States v. Price, 925 F.2d 1268 (10th Cir. 1991); United States v. Recalde, 761 F.2d 1448 (10th Cir. 1985), although burden of proof is on the prosecution to show consent. The government has carried its burden by convincing evidence. In this case, the defendant's consent was voluntary.
Bowman was told by Gray about complaints from neighbors, about possible drug trafficking, which Bowman explained was due to a prior conflict over cars being repaired at her residence. Gray then asked Bowman if "the officers" could "look around the house for drugs" to clear the matter up. No pressure was used, no threat, there was no coercion or duress. Bowman did not hesitate, she said "yes." This was permission to search and was voluntary. No condition to the search was imposed.
The defendant Bowman did not condition the right to search or the entry of the other officers to when Bowman was properly dressed. Rather, she gave full authority to search. It was Officer Gray who extended a courtesy to Bowman and suggest she go into another room and get dressed before the male officers entered. This, however, was not a limitation imposed on the prior consent to search which was unequivocal. The fact that Officer Gray was extending a courtesy did not reduce the prior authorization. Officer Gray heard a "crinkling noise" like a `baggie.' However, she did not enter Bowman's room. Gray never explained her actions and the sound did not provide reasonable suspicion or probable cause for a search. Gray apparently relied on the prior consent to invite the officers to enter. This was not improper and Bowman apparently did not think so either because she did not object until Officer Wendelboth spoke to her about a search of the garage. Officer Gray's inviting the other officers inside was not an act contrary to the consent for the search which Bowman previously gave to Gray.
Consent To Search The Garage
The defendants argue the search of the garage based on Bowman's execution of a consent to search form provided by DEA Agent Brent Barnes was not consensual or voluntary. The first argument advanced by defendants is that the consent was tainted by an alleged initial illegal search and seizure and the illegal arrest of Bowman. Brown v. Illinois, 422 U.S. 590 (1975); Taylor v. Alabama 457 U.S. 687 (1982) (five hour delay from illegal arrest and confession did not attenuate the prior illegality). See also United States v. Walker, 933 F.2d 812 (10th Cir. 1991); United States v. Lowe, 999 F.2d 448 (1993); United States v. Melendez-Garcia, 28 F.3d 1046 (10th Cir. 1994). However, the argument fails in this case because the prior consent to search was voluntary and lawful and Bowman's arrest was made on probable cause based on the drugs, etc., in plain view. United States v. McRae, 81 F.3d 1528 (10th Cir. 1996); United States v. Soto, 988 F.2d 1548 (10th Cir. 1993).
Defendants' second argument that the consent to search the garage was not lawful cannot be sustained. The facts show Bowman voluntarily consented to the search. She had been given a Miranda warning twice a short time before. She signed a consent to search form because, in her own testimony, this would shorten the time and a search would be made anyway. See United States v. Marshall, 157 F.3d 477, 484 (7th Cir. 1998); United States v. Barnett, 989 F.2d 546, 556 (1st Cir. 1993). The mere fact the officer truthfully advised her that he had never been turned down for a search warrant for a methamphetamine laboratory and that there would be a delay of up to two hours or so to obtain a search warrant did not confuse, mislead, or effect the voluntariness of the consent United States v. Garcia Hernandez, 955 F. Supp. 1361 (D. Utah 1996) aff'd 153 F.3d 729 (10th Cir.); United States v. Glover, 104 F.3d 1570, 1584 (10th Cir. 1997) (consent based on promise to make a deal); United States v. Salvo, 133 F.3d 943, 954-55 (6th Cir. 1998) (officer's statement that he would get a warrant was not baseless, collecting cases); United States v. Kaplan, 895 F.2d 618, 622 (9th Cir. 1990) (officer indicated getting a warrant was a foregone conclusion, consent voluntary under the totality of circumstances); United States v. Stallings, 810 F.2d 973, 976 (10th Cir. 1987) (agents told defendant they would attempt to get a warrant). See also United States v. White, 979 F.2d 539, 542 (7th Cir. 1992); United States v. Creech, ___ F.3d ___, 2000 WL 1014868 (10th Cir. 2000, unpublished) (officer's threat to get a warrant did not negate consent to search). To the same effect is the statement that her cooperation would be made known to the prosecutor.
Bowman knew a warrant was required. She also knew she could refuse consent, she had terminated the search in her house. She was given a Miranda warning and told not to sign the form unless it was voluntary. In the execution of the consent to search form she acted voluntarily. United States v. Butler, 966 F.2d 655(10th Cir. 1992).
Inevitable Discovery
The government contends if the consent to search the garage was not voluntary, that the inevitable discovery exception to the exclusionary rule is applicable. A search warrant was being prepared when Barnes arrived and was later obtained from a state judge. Nothing in the warrant application referred to the search of the garage or its contents. See United States v. King, ___ F.3d ___, 10th Cir., Aug. 23, 2000, Slip Op. p. 13. The defendants have made no challenge to the warrant except that it was based on the initial consent search they contend was illegal. However, the court has found the initial consent was lawful.
The circumstances support the conclusion that the warrant, obtained after the consent to search form was executed, was independent of any taint from alleged non-consent and the warrant expressly authorized a search of the garage so that the contents would have inevitably have been discovered from the execution of the search warrant.
The inevitable discovery exception to the exclusionary rule applies whenever an independent investigation inevitably would have led to the discovery of evidence obtained by illegal police conduct. The burden is on the government to show the exception. United States v. Souza, ___ F.3d ___, 2000 WL 1205826 (10th Cir. 2000). A high level of confidence that the warrant would issue has been required. (Id.). It is clear in this case. In Souza, the court said, p. 28:
Although a search may violate the Fourth Amendment, the exclusionary rule is inapplicable if the evidence inevitably would have been discovered by lawful means. See Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The "inevitable discovery exception applies whenever an independent investigation inevitably would have led to discovery of the evidence, whether or not the investigation was ongoing at the time of the illegal police conduct." United States v. Larsen, 127 F.3d 984, 986 (10th Cir. 1997). The government has the burden of proving by a preponderance of the evidence that the evidence in question would have been discovered in the absence of the Fourth Amendment violation. See United States v. Eylicio-Montoya, 70 F.3d 1158, 1165 (10th Cir. 1995). While the Tenth Circuit has applied the inevitable discovery exception on several occasions, those cases involving violations of the Fourth Amendment turned on whether legal doctrines providing exceptions to the warrant)) requirement would have inevitably led to discovery of the evidence.[7] Compare United States v. Haro-Salcedo, 107 F.3d 769, 773-74 (10th Cir. 1997) (finding that evidence inevitably would have been discovered by inventory search mandated by city police department); Eylicio-Montoya, 70 F.3d at 1166-67 (finding that inevitable discovery exception applied because while defendant had been prematurely arrested, the police had probable cause to stop the vehicle and in the process of doing so lawfully noticed suspicious burlap bags during the course of the lawful stop); United States v. Horn, 970 F.2d 728, 732 (10th Cir. 1992) (holding that inevitable discovery exception applicable because evidence would have been inevitably discovered in a subsequent inventory search); and United States v. Romero, 692 F.2d 699 (10th Cir. 1982) (holding that inevitable discovery exception applied because contraband would have been lawfully discovered while conducting search of defendant after arrest), with United States v. Owens, 782 F.2d 146, 152-53 (10th Cir. 1986) (refusing to apply the inevitable discovery exception because the government's claim that the contraband in question would have been inevitably discovered by the motel's cleaning staff was too speculative). In this case, there is no exception to the warrant requirement that could serve as a basis for the inevitable discovery exception. The police had probable cause to open the package and intended to obtain a search warrant to do so, but prematurely caused the package to be opened in violation of the)) Fourth Amendment. While the inevitable discovery exception does not apply in situations where the government's only argument is that it had probable cause for the search, the doctrine may apply where, in addition to the existence of probable cause, the police had taken steps in an attempt to obtain a search warrant. In United States v. Allen, 159 F.3d 832 (4th Cir. 1998), the Fourth Circuit said the inevitable discovery exception may apply where the subsequent search that inevitably would have uncovered the disputed evidence required a warrant and the police had probable cause to obtain this warrant prior to the unlawful search but failed to do so, if the government produces evidence that the police would have obtained the necessary warrant absent the illegal search. Such evidence might include proof that, based on independent evidence available at the time of the illegal search, the police . . . took steps to obtain a warrant prior to the unlawful search. Id. at 841 (emphasis in original). "[W]hat makes a discovery `inevitable' is not probable cause alone . . . but probable cause plus a chain of events that would have led to a warrant (or another justification) independent of the search." United States v. Brown, 64 F.3d 1083, 1085 (7th Cir. 1995). The key issue in these cases, one of probability, is how likely it is that a warrant would have been issued and that the evidence would have been found pursuant to the warrant. In United States v. Cabassa, 62 F.3d 470 (2d Cir. 1995), the court found the following factors helpful in this determination: 1) "the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search," id. at 473; 2) the strength of the showing of probable cause at the time the search occurred, see id. at 473-74; 3) whether a warrant ultimately was obtained, albeit after the illegal entry, see id. at 473; and 4) "evidence that law enforcement agents `jumped the gun' because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait accompli," id. at 473 n. 2. The extent to which the warrant process has been completed at the time those seeking the warrant learn of the search, and whether a warrant is ultimately obtained, are factors entitled to great importance in determining whether the evidence would have inevitably been discovered pursuant to a warrant. As the court in Cabassa explained First, the extent of completion relates directly to the question of whether a warrant would in fact have issued; ultimate discovery would obviously be more likely if a warrant is actually obtained. Second it informs the determination of whether the same evidence would have been discovered pursuant to the warrant. If the process of obtaining a search warrant has barely begun, for example, the inevitability of discovery is lessened by the probability, under all the circumstances of the case, that the evidence in question would no longer have been at the location of the illegal search when the warrant actually issued.
See also United States v. Blaze, 143 F.3d 585 (10th Cir. 1998). The inevitable discovery rule does not require proof of a separate investigation United States v. Larsen, 127 F.3d 984 (10th Cir. 1997) (exception held applicable); see United States v. Haro-Salcedo, 107 F.3d 769 (10th Cir. 1997) (exception held applicable); United States v. Eylicio-Montoya, 70 F.3d 1158 (1995) (exception held applicable).
Under the circumstances of this case, the inevitable discovery rule is applicable. The officers who conducted the search of the Bowman/Grow premises on Bowman's consent, after Bowman's termination of the consent search, pursued and obtained a search warrant. DEA Agent Barnes pursued his consent effort to search the garage without full knowledge of all the facts. The warrant application was independent of Agent Barnes' activity. The circumstances fit the inevitable discovery standard and the Government has carried its burden to show the applicability of the exception to the exclusionary rule.
Conclusion
The motions to suppress of Kimberly Bowman and Sean Grow should be DENIED.
Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are further notified that they must file objections to the Report and Recommendation, with the clerk of the court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.