Opinion
Criminal No. 1:02CR00106
March 26, 2003
REPORT AND RECOMMENDATION
I. Background
This case is before the court on the defendant's Motion To Suppress Evidence, (Docket Item No. 22), ("the Motion"), which asserts that any evidence seized from the defendant and any statements that he made with regard to this seizure of evidence on September 24, 2002, should be suppressed because they were obtained in violation of his constitutional rights under the Fourth Amendment. This matter is before the undersigned magistrate judge by referral pursuant to 28 U.S.C. § 636 (b)(1)(B). The undersigned conducted an evidentiary hearing on the Motion on March 18, 2003. As directed by the order of referral, the undersigned now submits the following report and recommended disposition.
II. Facts
The defendant has been charged in a one-count Indictment as follows:
1. On or about or between January 1, 2002, and September 24, 2002, in the Western District of Virginia and elsewhere, the defendant, CARLOS IVAN HAGERMAN, knowingly possessed, in or affecting interstate or foreign commerce, a firearm, after having been convicted of a crime punishable by imprisonment for a term exceeding one year.
2. On or about or between January 1, 2002, and September 24, 2002, in the Western District of Virginia and elsewhere, the defendant, CARLOS IVAN HAGERMAN, then being an unlawful user of a controlled substance as defined in Title 21, United States Code, section 802, knowingly possessed, in or affecting interstate or foreign commerce, a firearm.
3. All in violation of Title 18, United States Code, Sections 922(g)(1), 922(g)(3) and 924(e).
Section 922(g) states, in part:
It shall be unlawful for any person —
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act ( 21 U.S.C. § 802))
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.18 U.S.C.A. § 922(g)(1), (g)(3) (West 2000 Supp. 2002).
As stated above, the undersigned conducted a lengthy evidentiary hearing on the Motion. As a result of the evidence presented at this hearing, it is apparent that many of the events of the night in question are not disputed. Those undisputed facts are set out below.
At around 6 p.m. on September 24, 2002, Deputy Brian Jason Lawson of the Wythe County Sheriffs Department, ("WCSD"), drove to the home of Deputy Meredith, a new recruit to the WCSD, in the Max Meadows section of Wythe County. While at Meredith's home, Lawson noticed what he believed to be 10-foot tall marijuana plants growing on the adjacent property. The plants were situated in a garden that stood not more than 25 feet from Meredith's property line. As Lawson discovered later, the defendant, Carlos Hagerman, owned the lot. Lawson contacted his supervisor Sergeant Turpin and informed him of the suspected marijuana plants. Turpin gathered WCSD Deputy Jeffrey Freeman and Investigator Forrest Carter, and the three officers met Meredith and Lawson at the Fort Chiswell exit off of Interstate 81. At this meeting, the officers decided to investigate the garden and possibly arrest Hagerman, but did not discuss obtaining a search warrant.
Hagerman lived in a mobile home on a five-acre lot, which was accessed by a driveway that branched off a public road. The garden was about 50 yards from Hagerman's mobile home. The grass around the home and garden was mowed, as was a path between them. Neither the yard, nor the garden was fenced. Some tomato plants and corn also grew in the garden. Near the beginning of Hagerman's driveway stood a telephone pole with a standard store bought "No Trespassing" sign attached.
Several photographs of Hagerman's property and the marijuana plants found there were admitted into evidence for the court's consideration.
The officers arrived at the Hagerman property in four cars shortly after nightfall. None of the officers remembered seeing a "No Trespassing" sign. Following the driveway, Freeman drove to the front of the house to secure the location. Carter drove directly to the garden and shone the headlights of his car on the marijuana plants. He inspected them briefly and determined that the plants were marijuana. About that time, Hagerman opened the front door and stepped out onto a covered porch. Standing in the front yard facing the home, Freeman asked Hagerman if the garden belonged to him. Hagerman responded, "Yes, and that is my marijuana." From the garden, Carter began walking toward the home and yelled to Freeman to place Hagerman under arrest. Freeman told Hagerman to descend from the porch, and he placed him in custody. After Freeman informed Hagerman of his Miranda rights, Hagerman indicated that he had no questions. Hagerman then volunteered that he had been convicted of armed robbery multiple times. Freeman requested permission to search Hagerman's home. Hagerman responded with "that is fine" and warned Freeman that there were firearms inside the home. At the hearing, Freeman characterized this exchange as casual conversation and indicated that Hagerman was compliant. Freeman stated that he never brandished his weapon or used a threatening voice when speaking to Hagerman. Freeman also stated that he saw no evidence to suggest that Hagerman was under the influence of alcohol or drugs.
After securing Hagerman in the back seat of his police cruiser, Freeman approached the home. On the porch stood Carter and Turpin. Rita Young, Hagerman's live-in girlfriend, stood in the threshold of the front door. Carter informed Young of her Miranda rights, but did not place her in custody. Out of Carter's hearing, Freeman advised Young that Hagerman had consented to a search of the home. Carter asked Young if any marijuana was in the home. She indicated that they had marijuana in the bedroom and offered to retrieve it. Carter told her that he must accompany her. Young acquiesced. At the hearing, Carter testified that he insisted on accompanying Young because he was concerned that Young might destroy evidence or procure a weapon.
Hagerman and Young subsequently were married on October 9, 2002.
Freeman, Carter and Young stepped into the home. While Young and Carter went to the bedroom, Freeman secured the house. In the bedroom, Young gave Carter a stem of marijuana that had hung from the ceiling fan. She also produced marijuana contained in a bowl. As he collected the marijuana, Carter noticed what appeared to be a firearm on a dresser. After inspection, Carter determined that it was a BB gun.
What occurred after Carter inspected this BB gun is in dispute. Carter testified that he requested consent to search and informed Young of her right to refuse consent. Young stated, "go ahead." Carter asked her, "are you sure?" To which she replied, "yes." Carter then proceeded to the bedroom where he discovered two rifles under a bed. After finding the firearms, Carter walked outside to the patrol car and asked Freeman to read Hagerman his Miranda rights. Following this reading, Freeman informed Carter of Hagerman's status as a convicted felon. Carter then confronted Hagerman with the rifles, and Hagerman admitted that another gun, a .30 caliber carbine, was in the bedroom. Carter returned to the trailer and relayed this information to Young. After hesitating, she lead him to the .30 caliber carbine. Resulting from the discovery of the firearms and drugs, Carter decided to obtain a search warrant. He informed Young of his intentions and offered a written consent form instead. She completed the form, and Carter continued to search the home for approximately one hour. After concluding the search, the officers confiscated the weapons and marijuana plants and returned to the WCSD headquarters.
According to Young's testimony, after Carter examined the BB gun, he noticed a shell casing on the floor. Carter asked if other weapons were in the trailer, and Young indicated that she did not know. He walked a few feet to the other side of the bed and saw the stocks of two rifles protruding from under the bed. Without touching the rifles, Carter left the home. When he returned a few minutes later, Carter walked to the bedroom and opened a closet. While looking in the closet, he announced that a third gun was in the residence. Young testified that Carter turned around, smiled and said, "I have your permission to search, don't I?" She replied, "No sir. I have not given you any permission to search." Young stated that Carter immediately stopped what he was doing. Young admits that she then directed Carter to the location of the .30 caliber carbine. After finding the firearms, Carter informed Young that either he could secure a search warrant or she could sign a consent to search form. Young testified that she had smoked marijuana 30 minutes before the officers arrived. She further stated that she was concerned that her daughter was embarrassed and her children would be up late on a school night if she forced the officers to obtain a warrant. Acting under these considerations and the knowledge that a search was inevitable, she signed the consent form.
III. Analysis
Hagerman argues that the search of his garden, seizure of marijuana and firearms and arrest without a warrant violated the Fourth Amendment. He also contends that his consent and the consent of his wife were obtained in violation of the Fourth Amendment. Accordingly, Hagerman requests that the court suppress the evidence of his incriminating statements and possession of marijuana and firearms. Based on my review of the relevant law and my findings of fact, I recommend that the court deny the Motion on all grounds.
First, Hagerman contends that the search and seizure of marijuana plants growing in his garden was an invalid warrantless intrusion upon the curtilage of his home. Yet he concedes, and rightfully so, that Lawson and Meredith did not invade his privacy or affect a search in their initial observation of the marijuana plants. Accordingly, the issue is whether the officers, specifically Carter, impermissibly invaded Hagerman's curtilage by inspecting his garden without a search warrant.
A. Curtilage
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV. The Supreme Court has recognized that a person's right to be secure in his house extends to the curtilage, but not to open fields. See Oliver v. United States, 466 U.S. 170, 180 (1984); see also Hester v. United States, 265 U.S. 57, 59 (1924) (defining the open fields doctrine). The Court has defined curtilage as "the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life.'" Oliver, 466 U.S. at 180 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). As such, curtilage is "considered part of the home itself for Fourth Amendment purposes." Oliver, 466 U.S. at 180. By contrast, open fields engender no legitimate expectation of privacy and are subject to warrantless entries by law enforcement. See Oliver, 466 U.S. at 180-81. Yet, the protections associated with curtilage do not bar entrance by law enforcement in areas where the defendant knowingly exposed his activities to the public. See Unites States v. Breza, 308 F.3d 430, 435-37 (4th Cir. 2002) (finding that officers' warrantless entry to investigate the defendant's property after aerial surveillance revealed what appeared to be marijuana plants growing in his garden did not violate the Fourth Amendment); United States v. Taylor, 90 F.3d 903, 908-09 (4th Cir. 1996) (holding that the officers did not effectuate a search by looking in the defendant's window from the front porch of his house). Detailing the intimate ties of curtilage, the Court cited four factors:
the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.
United States v. Dunn, 480 U.S. 294, 301 (1987). Under these factors, Hagerman's argument finds little support.
1. Proximity
Testimony at the hearing established that Hagerman's garden was situated at least 50 yards from his home. Although this is a substantial distance, it is just one of the factors to be considered. See United States v. Van Dyke, 643 F.2d 992, 994 (4th Cir. 1981) (rejecting a 75 foot per se rule). Nonetheless, I find that the distance from Hagerman's residence and the relative proximity to Meredith's driveway, about 25 feet, detract from the assertion that his garden rested within the curtilage.
2. Enclosure
No fence demarcated any portion of Hagerman's property. Thus, contrary to common practice, the boundaries of the curtilage were largely indistinguishable from the remainder of his property. See Oliver, 466 U.S. at 182 n. 12 (stating that "for most homes, the boundaries of the curtilage will be clearly marked"). Hagerman argues that the mowed grass surrounding his house and garden and a path cut between the two served as a clear demarcation. However, as the record demonstrates, the grass created no visible or physical impediment to access to the garden. Nor did it clearly differentiate "a specific area of land immediately adjacent to the house that is readily indentifiable as part and parcel of the house." Dunn, 480 U.S. at 302. In fact the grass on the rest of the lot surrounding the garden was fairly short. Thus, the mowed grass did little to distinguish the garden from the rest of Hagerman's five acres and lends only slight weight to Hagerman's argument.
3. Uses of Property
The use of the property bears special significance on the determination of curtilage. See Dunn, 480 U.S. at 302; Breza, 308 F.3d at 436. Where law enforcement possesses "objective data" indicating that the property is used not for the "intimate activities of the home," but for the production of illegal drugs, the characteristics of curtilage are diminished. See Dunn, 480 U.S. at 302; Breza, 308 F.3d at 436. In Breza, the homeowner's use of the garden for growing vegetables was overshadowed by the quantity of marijuana also growing in the garden. See 308 F.3d at 436. Similarly, while Hagerman grew corn and tomatoes in his garden, the 10-foot tall marijuana plants demanded the bulk of the area and, from the condition of the other vegetable plants shown in photographs of the scene, the bulk of his attention. As precedent dictates that illegal drug manufacturing does not amount to an intimate activity of the home, Hagerman's use of the garden weighs heavily against a determination that it rested within the curtilage.
4. Visibility
As state above, Hagerman had erected no fence or other barrier to obstruct the view of this garden. Although Hagerman lived on a five-acre lot, his home was within view of more than a dozen homes. More importantly, his garden was situated 25 feet from his neighbor's driveway and a short distance from a public road. Thus, it appears that Hagerman made no effort to conceal his garden from public view. This high degree of visibility also negates a finding that this garden was within his home's curtilage. See Breza, 308 F.3d at 436.
While Hagerman posted a "No Trespassing" sign near the entrance to his driveway, it constitutes the sole indication of any desire for privacy. As such, the sign does not diminish my determination that the garden rested outside the curtilage of Hagerman's home. See Oliver, 466 U.S. at 182 (explaining that posting "No Trespassing" signs in open fields does not evidence a legitimate expectation of privacy recognized by the Fourth Amendment). Accordingly, whether the officers trespassed in effectuating the search in an area outside the curtilage is irrelevant. See Oliver, 466 U.S. at 183-84. The substantial distance from the house to the garden, the overall illegal purpose and the total absence of any limitation on visibility establish that Hagerman's garden rested outside the protections of curtilage. Thus, I hold that the search and seizure of marijuana plants from Hagerman's garden did not violate his Fourth Amendment rights.
B. Warrantless Arrest
The Fourth Amendment does not prohibit a warrantless arrest in a public place based on probable cause. See United States v. Watson, 423 U.S. 411 (1976). However, the warrantless entry into a person's home and subsequent arrest violate the Fourth Amendment unless supported by probable cause and predicated upon exigent circumstances. See Payton v. New York, 445 U.S. 573, 590 (1980). Hagerman contends that Payton controls since Freeman arrested him in the curtilage of his front yard where he enjoys the same protection as though he were in his home. I disagree.
In reaching its holding, the Court in Payton placed great emphasis on "preserving the privacy and the sanctity of the home." See 445 U.S. at 588. The Court further noted, "'the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" Payton, 445 U.S. at 585 (quoting United States v. United States District Court, 407 U.S. 297, 313 (1972)). Thus, the Court has firmly drawn the line for Fourth Amendment purposes "at the entrance to the house." See Kirk v. Louisiana, 536 U.S. 635, 122 S.Ct. 2458, 2459 (2002) (quoting Payton, 445 U.S. at 590); accord New York v. Harris, 495 U.S. 14, 18 (1990). In a previous decision, unaffected by Payton, the Court determined that the threshold of one's home was a public place, wherein the resident had no expectation of privacy. See United States v. Santana, 427 U.S. 38, 42 (1976). Accordingly, an arrest conducted in the threshold of a residence, or the yard surrounding the house, is not protected as a part of the home by the warrant requirement of the Fourth Amendment. See Santana, 427 U.S. at 42.
The Fourth Circuit Court of Appeals has distinguished Santana on the facts that a defendant did not leave his apartment, but merely opened the door halfway to determine the identity of the person, who turned out to be a police officer, knocking on his door. See United States v. McCraw, 920 F.2d 224, 229 (4th Cir. 1990). In this instance, the defendant did not voluntarily expose his activities to the public and, therefore, did not relinquish his expectation of privacy. See McCraw, 920 F.2d at 229. Thus, the officers could not forcibly enter his room and arrest him. See McCraw, 920 F.2d at 229. Additionally, the Sixth Circuit Court of Appeals has held that when the police, with guns drawn, summons a shooting suspect from his apartment, his warrantless arrest at the front door violated the Fourth Amendment. See United States v. Saari, 272 F.3d 804, 808-09 (6th Cir. 2001). However, Santana has been applied to uphold arrests in the hallway of a suspect's apartment building, see United States v. Amos, 566 F.2d 899, 900 (4th Cir. 1977) (per curiam), and on a suspect's front porch. See United States v. Patch, 114 F.3d 131, 134 (9th Cir. 1997) (characterizing the front porch as a public place in the context of an investigatory stop); Harbin v. Alexandria, 712 F. Supp. 67, 72 (E.D. Va. 1989) (Ellis, J.) (upholding the Terry stop of a defendant on his front porch because it constituted an area that was knowingly exposed to the public).
In this case, Hagerman viewed car headlights shining on his garden and exited his home to ascertain the situation from his porch. No officer knocked on his door, called out or otherwise sought to summons the defendant until after he emerged from his home. While Hagerman stood on his porch, Freeman asked if he owned the garden. Hagerman responded, "Yes, and that is my marijuana." Without drawing a weapon, Freeman told Hagerman to step into the yard. Hagerman complied, and Freeman placed him in custody. Based on these facts, I find that Hagerman voluntarily left the protections of his home, thereby relinquishing his expectation of privacy and subjecting himself to a warrantless arrest. Thus, Hagerman's arrest did not violate the Fourth Amendment.
Hagerman concedes, and I agree, that the officers had probable cause to arrest.
C. Consent to Search
Hagerman does not contend that his consent to search was obtained involuntarily. Instead, he asserts that the search of his garden and his subsequent arrest violated the Fourth Amendment, thereby nullifying his consent and rendering any evidence seized therefrom inadmissible. See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963) (explaining fruit of the poisonous tree doctrine). However, as I have decided above, the search and arrest were within the confines of the Fourth Amendment. The defendant also argues that the officers coerced Young's consent, thereby invalidating any search of the residence.
A warrantless search is per se unreasonable unless subject to an established exception. See Katz v. United States, 389 U.S. 347, 357 (1967). One such exception "to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Consent, however, must be given voluntarily, i.e. a person's will must not be overborne. See Schneckloth, 412 U.S. at 225-26. Taken in the totality of the surrounding circumstances, the factors determinative of whether a person's will has been overborne are as follows: the youth of the accused, lack of education, low intelligence, absence of advice regarding constitutional rights, length of detention, repeated and prolonged nature of questioning and the use of physical punishment. See Schneckloth, 412 U.S. at 226; United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). The government bears the burden of proving that consent was validly obtained. Schneckloth, 412 U.S. at 222.
In this case, there is no evidence that Hagerman suffered from any mental deficiency or was sufficiently limited in education so that his understanding of the situation was impaired. In fact, Hagerman had been charged and convicted for armed robberies in the past, so it stands to reason that he was at least somewhat familiar with the legal process. Moreover, Freeman testified that he advised the defendant of his Miranda rights, after which Hagerman made inculpatory statements regarding previous felony convictions and his current possession of firearms. Following these statements, Freeman requested permission to search the house. The defendant stated, "that is fine" and warned Freeman of the presence of firearms. Freeman indicated that he never drew his weapon, that Hagerman was compliant and that their conversation was casual. Furthermore, Freeman had no evidence before him to suggest that Hagerman was under the influence of alcohol or drugs. Accordingly, I find that pursuant to the factors delineated in Schneckloth, Hagerman's consent was voluntary.
After obtaining Hagerman's consent, Freeman ascended to the porch where Young and Carter were conversing. Freeman informed Young that Hagerman had consented to a search of the home, but Carter apparently did not hear this. Nonetheless, Hagerman's consent is deemed known to Carter and the other officers closely working on the case under the doctrine of collective or imputed knowledge. See United States v. Gillette, 245 F.3d 1032, 1034 (8th Cir. 2001), cert. denied, 534 U.S. 982 (2001). In Gillette, Detective Dan Kriteman and Deputy Craig Lambert went to Jeffrey Croft's home to investigate an anonymous report of drug activity. 245 F.3d at 1033. Kriteman secured written consent from the Crofts to search the residence, automobiles and outbuildings on their property. Gillette, 245 F.3d at 1033. In response to a call for backup, Deputy Darrell Smithson arrived and began searching cars. Gillette, 245 F.3d at 1033. None of the officers notified Smithson of the consent to search. Gillette, 245 F.3d at 1033. As it turned out, Robert Gillette, a guest, had parked his pickup truck on the Crofts' lot. Gillette, 245 F.3d at 1033. When Smithson searched Gillette's vehicle, he discovered components of a methamphetamine lab. Gillette, 245 F.3d at 1033. The court determined that the officers acted upon a reasonable belief that the Crofts' consent extended to Gillette's truck. See Gillette, 245 F.3d at 1033-34. Moreover, the court imputed Kriteman's knowledge of the Crofts' consent to Smithson under the collective knowledge doctrine, even though he was unaware of consent. See Gillette, 245 F.3d at 1034. The court reasoned that the degree of communication between Smithson and the other officers made him a member of their team, not an independent actor. See Gillette, 245 F.3d at 1034. Accordingly, the court held that evidence seized from Gillette's truck was admissible. See Gillette, 245 F.3d at 1034.
To determine whether such an approach is appropriate in this case, a brief examination of the doctrine of collective knowledge is necessary. In United States v. Hensley, the Supreme Court upheld a Terry stop where the seizing officer had no independent basis for detaining the suspect, but instead relied upon a bulletin from another jurisdiction for reasonable suspicion. See 469 U.S. 221, 231-33 (1985). Basing its holding on the collective knowledge doctrine, the Court imputed the knowledge of officers from one jurisdiction to officers in another. See Hensley, 469 U.S. at 232-33; see also Whiteley v. Warden, 401 U.S. 560, 568 (1971) ("Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause.") Collective knowledge is not limited to an officer's reliance on bulletins, but applies where officers collectively, but not individually, have probable cause to arrest a suspect. See United States v. Wells, 98 F.3d 808, 810 (4th Cir. 1996); see also United States v. Gaither, 527 F.2d 456, 458 (4th Cir. 1975) (recognizing the collective knowledge doctrine). Moreover, in instances where officers worked closely together at the scene of an investigation and were in communication with each other, but did not communicate certain facts, courts have imputed their collective knowledge. See United States v. Nafzger, 974 F.2d 906, 911 (7th Cir. 1992); Collins v. Nagle, 892 F.2d 489, 495 (6th Cir. 1989); United States v. Edwards, 885 F.2d 377, 382-83 (7th Cir. 1989); United States v. Bernard, 623 F.2d 551, 561 (9th Cir. 1979); United States v. Tate, 745 F. Supp. 352, 354 (W.D.N.C. 1990), aff'd, 972 F.2d 344 (4th Cir. 1992) (unpublished table opinion), cert. denied, 506 U.S. 1026 (1992). But see United States v. Shareef 100 F.3d 1491, 1504 (10th Cir. 1996) (holding that uncommunicated information could not be imputed to officers working together to arrest a suspect, but leaving the question open under other circumstances).
In this case, Carter and Freeman worked together from the onset of the investigation. While Carter examined the garden, Freeman secured the home. At Carter's direction, Freeman arrested the defendant. After obtaining Hagerman's consent to search the residence, Freeman joined Carter on the porch and advised Young that Hagerman had consented. Although Carter did not hear this statement, he and Freeman entered the home to search with Young's permission. Under these facts, imputing Freeman's knowledge to Carter of the defendant's consent is appropriate. Application of collective knowledge does not negate the voluntariness of Hagerman's consent, the overriding issue in this case. Regardless of Carter's subjective knowledge, the defendant waived his Fourth Amendment rights. Thus, imputing the officers' knowledge properly reflects society's interest in solving crimes without infringing upon the defendant's right to be free from unreasonable searches and seizures. Accordingly, I find that, pursuant to the officers' collective knowledge of Hagerman's consent, Carter possessed the authority to search the residence. Furthermore, the defendant's unconditional consent extended to the entire residence, see Florida v. Jimeno, 500 U.S. 248, 251-52 (1991), and it was not necessary to obtain consent from another inhabitant. See United States v. Matlock, 415 U.S. 164, 171 (1974) (stating that consent to search obtained from a person with common authority covers the entire residence). Nonetheless, I also will address the defendant's argument concerning Young's consent.
The defendant contends that Carter coerced Young's consent by stating that he must follow her when she retrieved the marijuana. In Washington v. Chrisman, a police officer arrested what appeared to be an underage student carrying a bottle of gin. 455 U.S. 1, 3 (1982). When the student informed the officer that his driver's license was in his dormitory room and offered to retrieve it, the officer insisted that he accompany the student. Chrisman, 455 U.S. at 3. The student replied, "O.K." Chrisman, 455 U.S. at 3. While in the room, the officer observed seeds and a pipe used for smoking marijuana lying on a desk. Chrisman, 455 U.S. at 4. He seized this evidence and other contraband and arrested the student's roommate. Chrisman, 455 U.S. at 4. The Court upheld the seizure and subsequent arrest finding that "[s]uch surveillance is not an impermissible invasion of the privacy or personal liberty of an individual who has been arrested." See Chrisman, 455 U.S. at 7. As the defendant validly points out, Young was not under arrest, however, at the time Carter accompanied her into the home's bedroom. Since the holding in Chrisman rests upon the fact that the suspect was in custody, Carter did not have the authority to demand that Young permit him to follow. However, as I explain below, this does not affect the validity of Carter's entry and subsequent search of the residence.
Although Carter's testimony signals the presence of exigent circumstances, I will not address this potential argument and express no opinion on the matter for reasons given below.
When the officers sought entry into the residence, Young's consent, or lack thereof, was irrelevant. Freeman already had obtained consent from Hagerman, which he relayed to Young; thus, she could not legally inhibit the officer's entry. Despite the defendant's argument to the contrary, his case is distinguishable from Bumper v. North Carolina, wherein the Court found that an officer had coerced the consent of a homeowner by stating that he possessed a search warrant for the residence, when he in fact did not. See 391 U.S. 543, 546-48 (1968). The Court held that free and voluntary consent required more than a showing of acquiescence to a claim of lawful authority. See Bumper, 391 U.S. at 548-49. Contrary to the facts in Bumper, Young granted permission after being informed that Hagerman had actually and validly consented to the search. Thus, Young's statement and actions need not be construed as consenting to a search. Instead, she permitted the officers to perform their duties pursuant to validly obtained consent to search granted by another inhabitant of her residence. As such, consent to search was no longer hers to give. Similarly, consent would not have been at issue in Bumper if the police had actually possessed a valid search warrant. Thus, I hold that Young's statements were nothing more than recognition of and acquiescence to the officers' lawful right to search the residence. Accordingly, all of Young's subsequent statements regarding consent, whether negating or confirming it, are irrelevant since Hagerman never withdrew his consent. See Lattimore, 87 F.3d at 651.
PROPOSED FINDINGS OF FACT
As supplemented by the above summary and analysis, the undersigned now submits the following formal findings, conclusions and recommendations:
1. Hagerman's garden lay outside the curtilage of his home;
2. The officers' search of Hagerman's garden and their seizure of the marijuana found growing there did not invade Hagerman's legitimate expectation of privacy;
3. Freeman effectuated Hagerman's warrantless arrest in an area where the defendant had exposed his activities to the public, and, therefore, the arrest was valid;
4. Hagerman validly consented to the search of his residence;
5. Freeman's knowledge of Hagerman's consent was imputed to Carter; and
6. Carter's search of Hagerman's residence was pursuant to the defendant's consent.
RECOMMENDED DISPOSITION
Based upon the above, the undersigned recommends that this court deny the Motion.Notice to Parties
Notice is hereby given to the parties of the provisions of 28 U.S.C. § 636 (b)(1)(C):
Within ten days after being served with a copy [of this Report and Recommendation], any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]. The judge may also receive further evidence or recommit the matter to the magistrate [judge] with instructions.
Failure to file timely written objections to these proposed findings and recommendations within ten days could waive appellate review. At the conclusion of the 10-day period, the Clerk is directed to transmit the record in this matter to the Honorable James P. Jones, United States District Judge.
The Clerk is directed to send certified copies of this Report and Recommendation to all counsel of record at this time.