United States District Court, W.D. Tennessee, Western Division
TU M. PHAM, Magistrate Judge.
Before the court by order of reference is defendant Roy Thompson's Motion to Suppress, filed on December 31, 2014. (ECF No. 17.) The government filed a response in opposition on January 14, 2015. (ECF No. 18.) The court held a hearing on the motion on March 24, 2015. For the reasons below, it is recommended that the Motion to Suppress be denied.
I. PROPOSED FINDINGS OF FACT
At the suppression hearing, the government called as witnesses Memphis Police Department ("MPD") Officers Jonathan Bond and Demetric Renix. The court received as evidence a signed MPD consent to search form, a photograph of a handgun found inside the residence where Thompson was arrested, and a copy of Thompson's arrest ticket. The court, having carefully considered the evidence presented at the hearing, finds the officers' testimony to be credible. Therefore, the court adopts the officers' account of the events as its findings of fact.
During the early evening hours of July 19, 2013, Officers Bond and Renix, along with three other members of an MPD task force, were in their marked police vehicles conducting patrol of the Pinetree apartment complex in Memphis, Tennessee. An individual at the complex flagged down the officers and alerted them that drugs were being sold out of apartment #8. Officers Bond and Renix, along with an "Officer Graham, " approached apartment #8 and knocked on the front door. The officers were dressed in uniforms that displayed "police" on the front and back. A woman in her 30s, later identified as Chaka Ford, opened the door. While standing outside, the officers could see a man, later identified as Roy Thompson, sitting on a couch inside the apartment. The officers advised Ford that they had been informed drugs were being sold from the apartment and asked if they could search the residence. Ford told the officers she was the leaseholder of the apartment and verbally consented to a search. The officers then presented Ford with a consent to search form. The form read as follows:
CONSENT TO SEARCH
I, Chaka Ford, having been informed of my constitutional right not to have a search made of the premises hereinafter mentioned without a search warrant and of my right to refuse to consent to such a search, hereby authorize Officer Bond 12096 and Officer Graham 11597 of Officer Holmes 12576 to conduct a complete search of my premises located at [XXXX] Maplelawn #8.
This written permission is being given by me to the above named persons voluntarily and without threats or promises of any kind.
The form was signed by Ford, as well as by Officer Renix and an "Officer Scott" as witnesses. (Ex. 1.)
Once the officers obtained Ford's consent, they proceeded to search the apartment. Officer Renix stayed in the front living room area and stood next to Thompson, who remained seated on the couch. Thompson never objected to the officers' entry into the residence or the search. Ford accompanied the officers as they searched the apartment. In the back bedroom, Officer Graham found a loaded handgun, 84 grams of marijuana in two plastic baggies, Xanax pills, and scales. Officer Graham carried the seized items into the front of the apartment, where Thompson and Officer Renix were located. Upon seeing the items, Thompson told the officers that he did not want his girlfriend to go to jail and that the items belonged to him. Officer Renix ran a warrants check and discovered that Thompson had an outstanding arrest warrant for violating his parole. Officer Renix then placed Thompson in handcuffs. Thompson was later indicted on one count of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and one count of unlawful possession of marijuana in violation of 21 U.S.C. § 844.
In his Motion to Suppress, Thompson argues that the officers violated his Fourth Amendment rights because they failed to verify that Ford had actual authority to give consent to search the apartment and they failed to obtain his consent to search. Thompson further argues that his statement should be suppressed because the officers obtained the statement without advising Thompson of his Miranda rights.
II. PROPOSED CONCLUSIONS OF LAW
A. Consent to Search
Thompson argues that the search of the apartment violated his Fourth Amendment rights. The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." U.S. Const. amend. IV. "[O]ur analysis begins... with the basic rule that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions.'" Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). "Those exceptions include automobile searches, consented-to searches, searches incident to arrest, seizures of items in plain view, Terry stops, the hot-pursuit rule, and searches in order to prevent the loss or destruction of evidence." Reynolds v. City of Anchorage, 379 F.3d 358, 370 (6th Cir. 2004). "If an officer obtains consent to search, a warrantless search does not offend the Constitution." United States v. Moon, 513 F.3d 527, 537 (6th Cir. 2008) (citing Davis v. United States, 328 U.S. 582, 593-94 (1946)). "An officer with consent needs neither a warrant nor probable cause to conduct a constitutional search." United States v. Jenkins, 92 F.3d 430, 436 (6th Cir. 1996) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). "Such consent, however, must be voluntary and freely given." Moon, 513 F.3d at 537 (citing Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968)). "Consent is voluntary when it is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion.'" Id. (quoting United States v. McCaleb, 552 F.2d 717, 721 (6th Cir. 1977)). The government has the burden of proving, by a preponderance of ...