Opinion
Case No. 2:02CR730 DAK
March 24, 2003
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER
This matter is before the court on Defendant's Motion to Suppress. Specifically, Defendant has moved to suppress all evidence seized in the search of his parents' home in July 2002. On February 12, 2003, this court held an evidentiary hearing on Defendant's Motion to Suppress. On March 10, 2003, oral arguments were heard. At the hearings, the United States was represented by Brooke C. Wells, and Defendant was represented by James D. Garrett.
Before oral argument, the court carefully considered all pleadings, memoranda, and other materials submitted by the parties. Since taking the motion under advisement, the court has further considered the law and facts relating to this motion. Now being fully advised, the court renders the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
Sometime after 12:00 midnight on July 13, 2002, six to eight police officers from several local police agencies went to the residence of William Speaks, Jr. in Salt Lake City. The officers went to the residence to arrest Mr. Speaks on aggravated assault charges arising out of an incident in Weber County earlier that day and to locate the firearm used in that incident. Mr. Speaks was alleged to have shot at another individual with an uzi semi-automatic firearm. The officers were not in uniform and were not in marked police cars. Police cars were parked down the street from the residence. Based upon the allegations that Mr. Speaks had shot at another individual and left the area of the shooting with the firearm, the officers approached the house with their firearms drawn. Some officers went to the back of the house, several went to either side of the front of the house, and several went to the front porch. The door was answered by Mr. Speaks, who went to the front door in response to his barking dogs. His wife, Tracy Speaks, also came to the door, fully dressed, shortly thereafter. She assisted her husband in securing the bathrobe he was wearing. Mr. Speaks was arrested and cuffed while on the front lawn.
Because the events happened sometime around midnight, there is some confusion in the record concerning whether the events transpired on July 12 or July 13, 2002. While the date is not material to the court's resolution of the motion, it appears that the incident at issue occurred sometime between 11:00 p.m. on July 12 and 1:00 a.m. on July 13.
William Speaks, Jr. is the father of Defendant Williams Speaks, III., Mr. Speaks, Jr. will be referred to herein as "Mr. Speaks," and his son, the defendant in this action, will be referred to as "Defendant."
Mr. Speaks was asked if the firearm he used was in the house. He denied that the firearm was inside. He also denied consent to search the residence and told his wife not to cooperate with police. He was subsequently placed in a patrol car. The officers asked Mr. Speaks again for consent to search the residence, and he denied the request. The officers asked Mrs. Speaks if she would talk to her husband about permitting them to search the residence. She did so, but Mr. Speaks again told her not to allow the officers to search the home. Mrs. Speaks returned inside her residence.
Mrs. Speaks was subsequently consulted in the living room of her home by two officers, who requested that she give consent to search the house for firearms. Other officers were positioned outside of the home or on the front porch. Prior to the discussion with Mrs. Speaks, all of the officers' firearms had been holstered. During the conversation, Mrs. Speaks was not physically restrained or threatened.
While she had taken Lortab and some arthritis medication prior to going to bed that night, and she claimed that these medications confused her, she did not appear to the officers to be under the influence of any substance or to be at all sedated, confused, or incoherent. The officers testified that she talked normally and did not slur her words. Mrs. Speaks acknowledged she was fully able to move, assist her husband who had been placed under arrest, talk with him, and understand the nature of requests made by police. There is no evidence that she was impaired by these medications.
After talking with the two officers, Mrs. Speaks executed a written consent to search form allowing officers to search for firearms within her residence. Mrs. Speaks testified that she consented to the search of her home because the officers had stated that they would "tear [her] house up" if they were required to obtain a search warrant. Her fear of potential damage to her house allegedly stemmed from an incident three years prior in which police had "torn [her home] up" during an unrelated police search.
The officers who testified in this matter denied that such a threat had been made. Officer Worthen testified that he never made such a threat and that it was Mrs. Speaks who brought up the issue, stating that "My house has been torn apart before. I don't want that to happen again." Tr. at 40. In denying he had made such a threat, Officer Worthen testified that he responded by stating "we are not here to tear up a house or make a mess, I would just assume [sic] them give us a gun and we wouldn't have to look, but that's not how I work." Id.
This court, having heard the evidence and viewed the demeanor of the witnesses, credits the testimony of the officers and finds that they did not threaten Mrs. Speaks by stating that they would "tear up her house" if they were required to obtain a search warrant. It appears to the court that Mrs. Speaks may have genuinely feared a repeat of her alleged previous bad experience with a police search and therefore felt that she should cooperate so as to avoid damage to her house. However, the court finds that such a fear was subjective and not based on threats made by the officers involved in the incident at issue in this case.
This court's conclusion on this critical fact is bolstered by the fact that Mr. and Mrs. Speaks did not testify consistently regarding what the officers allegedly sa id. Mr. Speaks testified that when the officers asked him if they could search the house, he stated, "You can't go in. I don't want you to search my house just for the fact of the way they tore it up last time." "I just figured he was going to trash my house again. That's what they said they were going to do." When asked if the officers stated that they were going to trash his house, he replied, "They said if they had to they would trash the house." See Tr. at 112. He also testified that this conversation occurred when he was put in the patrol car. Id. Thus, Mr. Speaks' testimony does not establish a nexus between the alleged threat to tear up the house and having to obtain a search warrant; rather, the officers allegedly threatened to trash the house "if they had to [to find the gun]. Mrs. Speaks' testimony about this exchange at the patrol car was different. She testified that the officer said, `You can either give consent or we'll get a warrant, and we'll have to tear your house up.'" She testified that her husband still refused to give consent. See Tr. at 128. Thus, the court finds that the officers did not threaten Mr. or Mrs. Speaks with tearing their house up if they did not agree to a search of the residence.
After signing the consent to search form, Mrs. Speaks accompanied officers from room to room as they searched. The officers testified that Mrs. Speaks was very cooperative and helped point things out. Officer Worthen also testified that "she was pretty understanding of why we were there." In the master bedroom, officers located and photographed a rifle propped against the bed, as well as a rifle located in the bedroom closet. Neither rifle was the rifle described as having been used by Mr. Speaks in the aggravated assault incident.
After seeing the rifles in the master bedroom, Mrs. Speaks led officers to the bedroom of her son, William Speaks, III, the Defendant in this action. Defendant, age 20, was not home. However, the bedroom door was open. As Mrs. Speaks turned on the light in this bedroom, officers could see a different rifle propped against Defendant's bed. Officers could also see items of drug paraphernalia, a bag of marijuana, and evidence of recent drug usage, including residue on top of a locked safe next to Defendant's bed. Plastic baggies, commonly used to package drugs for distribution, were on the floor next to the bed. A pill container with the name of William Speaks was on the headboard. Detective Ikemiyashiro asked Mrs. Speaks questions related to occupancy of the room. She answered that the bedroom was her son's. She also indicated that her son did not pay rent and that she had free access to the room.
Under the circumstances, which included the existence of a locked safe in the vicinity of a firearm, drugs, and drug paraphernalia, Detective Ikemiyashiro sought a telephonic search warrant for Defendant's bedroom. The warrant was approved by the Third District Judge Terry Christiansen. A search conducted pursuant to the warrant resulted in the seizure of evidence now being used in support of the government's charge against Defendant William Speaks, III, of User of Illegal Drugs in Possession of a Firearm, a federal firearms violation.
CONCLUSIONS OF LAW
Defendant's mother had authority to consent to the search of the residence including his bedroom. A firearm, ammunition, and evidence of illegal drug possession and use were lawfully seized from Defendant's bedroom pursuant to a consent search authorized by his mother, followed by execution of a valid telephonic search warrant issued by a Utah state judge.
It is well established that a government official may conduct a warrantless search based upon an individual's voluntary consent. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973); United States v. Benally, 146 F.3d 1232 (10th Cir. 1998). The person giving consent to search must have the authority to do so. United States v. Matlock, 415 U.S. 164, 170-71 (1974). The government bears the burden of proving by a preponderance of the evidence that the person consenting to the search had mutual use of the property searched by virtue of joint access to the property in question. U.S. v. Butler, 966 F.2d 559 (10th Cir. 1992). The consent is effective if there existed a sufficient relationship to the property searched. United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir. 1990).
In this case Defendant's mother, Mrs. Speaks, had authority to execute the written consent to search form, permitting police to conduct an unrestricted search of the Speaks' family home, including Defendant's bedroom. Mr. and Mrs. Speaks testified that their son, Defendant William Speaks, III, lived in the family home with them at the time of the search. Mrs. Speaks testified, as did Mr. Speaks, that she had both the mutual use of the residence and joint access with her husband to Defendant's bedroom. Access to Defendant's bedroom was unrestricted. Mr. and Mrs. Speaks testified that Defendant did not pay rent.
Defendant challenges the voluntariness of his mother's consent to search. Whether a party has voluntarily consented to a search is a question of fact that the court must evaluate in light of the totality of the circumstances. See Schneckloth, 412 U.S. at 227; United States it Butler, 966 F.2d 559, 563 (10th Cir. 1992). In order to establish voluntariness, the government must "proffer clear and positive testimony that consent was unequivocal and specific and freely and intelligently given" and must "prove that this consent was given without implied or express duress or coercion." United States v. McRae, 81 F.3d 1528, 1537 (10th Cir. 1996); United States v. Zapata, 997 F.2d 751, 758 (10th Cir. 1993).
In making a determination of voluntariness, the court should consider, among other things, the following factors: Physical mistreatment, use of violence, threats, threats of violence, promises or inducements, deception or trickery, and physical and mental condition and capacity of the individual giving consent within the totality of the circumstances. See United States v. Pena-Sarabia, 297 F.3d 983, 987 (10th Cir. 2002).
At the time of the search, Mrs. Speaks was 41 years old. She had a high school diploma and had attended college courses. Her employment at the IHC Business Office involved responsibilities related to written documents, and she testified that she understood the importance of written documents. She further testified that she is "her own person" and capable of making independent decisions. There is no indication that her capacity to give consent was in any way impaired on the night in question. There is no evidence of any physical mistreatment, use of violence, threats of violence, promises, deception, or trickery. There was no threat by the officers that they would tear up the house if she refused to consent, requiring them to obtain a warrant. Mrs. Speaks appeared to understand why the officers were there and was cooperative during the search.
While there is some testimony that the officers may have expressed their intention to seek a search warrant if she did not consent, where some basis exists to support an application for a search warrant, such an expressed intention to seek a search warrant in the absence of consent does not render consent involuntary. See, e.g., United States v. Chreech, 221 F.3d 1353, 2000 WL 1014868 at * 2 (10th Cir. July 24, 2002) (unpublished decision); United States v. Tompkins, 130 F.3d 117, 122 (5th Cir. 1997) (finding that officer's statement that "he would obtain" a search warrant if defendant refused to consent was but one factor to be considered among the totality of the circumstances); United States v. White, 979 F.2d 539, 542 (7th Cir. 1992) (finding where officer's expressed intention to obtain a search warrant was genuine and not merely a pretext to induce submission, such intention did not vitiate consent); see generally United States v. Salvo, 133 F.3d 943 954 (6th Cir. 1998) (listing cases).
Given the totality of the circumstances, the court finds that Plaintiff has demonstrated that Mrs. Speaks' consent was unequivocal and specific and freely and intelligently given without implied or express duress or coercion. In other words, her consent was voluntary.
Finally, to the extent that Defendant has challenged whether the telephonic search warrant was lawfully issued, the court finds that it was. Evidence lawfully obtained pursuant to a telephone search warrant authorized by a state court judge is admissible in a federal criminal prosecution if the warrant is obtained in conformance with state statutes governing the issuance of such warrants. See United States v. Howard, 306 F.2d 392, 393; see also United States v. Larson, 2003 WL 723961 at *4 (10th Cir. March 4, 2003) (unpublished decision). Issuance of a valid Utah telephone search warrant is authorized by Title 77-23-204(2) of Utah Code Annotated (1999) under circumstances when it is not reasonable to be in the physical presence of a magistrate judge. In the absence of a written affidavit, a telephonic search warrant may be issued "`upon sworn oral testimony of a person . . . not in the physical presence of the magistrate, provided the magistrate is satisfied probable cause exists for the issuance of the warrant.'"
The grounds for the issuance of the warrant must be read verbatim to the magistrate by the affiant, and the oral testimony must be recorded and transcribed. The magistrate must certify the transcribed statement and file it with the court. According to the testimony of Det. Michael Ikemiyashiro, he sought a telephonic search warrant from Utah District Court Judge Christiansen due to the late hour. He complied in all respects with the requirements of the Utah statute. While under oath, he read his prepared affidavit verbatim to the judge, had the conversation recorded, subsequently transcribed the recorded conversation and had it certified by the judge and filed with the court.
The telephonic search warrant issued in this case, which became the basis for the search of Defendant's bedroom and locked safe, were obtained in accordance with Utah state statute. Contrary to the claim made by Defendant, the court finds that no material omissions were made in obtaining the telephonic warrant. There is no evidence of a Franks violation. See Franks v. Delaware, 438 U.S. 154 (1978). Thus, the evidence discovered pursuant to the telephonic warrant should not be suppressed.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant's Motion to Suppress is DENIED.