United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION
PHAM, UNITED STATES MAGISTRATE JUDGE
the court by order of reference is defendant Jaire
Spencer's Motion to Suppress, filed on January 16, 2019.
(ECF No. 25.) The government filed a response on January 30,
2019. (ECF No. 27.) The court conducted an evidentiary
hearing on February 13, 2019, and the hearing transcript was
filed on March 6, 2019. For the following reasons, it is
recommended that the defendant's motion be denied.
PROPOSED FINDINGS OF FACT
hearing, the court heard testimony from Memphis Police
Department (“MPD”) Officer James Reed, MPD
Detective Cody Mills, defendant Jaire Spencer, and his
father, J.T. Spencer. Both sides provided drastically
different accounts of the events at issue in the instant
motion. According to the officers' testimony, sometime
around noon on February 1, 2018, Detective Mills and other
members of the MPD Gang Unit were instructed to arrest the
defendant at his home, located at 4791 Manson Road. (Tr. at
15-16, 39, 62, 129.) The officers were told to arrest
defendant because he had threatened to shoot a police officer
who had given him a citation. (Tr. at 16.) The officers did
not obtain a warrant for defendant's arrest. (Tr. at 37.)
Officer Reed, Detective Mills, and a third officer - none of
whom had their weapons drawn - approached the residence and
knocked on the door, while approximately four to seven
additional officers guarded the perimeter of the residence.
(Tr. at 17, 43, 56-57, 73.) Defendant's father, J.T.
Spencer, answered the door. The officers asked if the
defendant was home, and when J.T. Spencer answered
affirmatively, the officers advised him that the defendant
was the subject of an ongoing investigation. (Tr. at 17-18.)
According to Officer Reed, after the officers “asked to
enter the residence, [J.T. Spencer] advised that we could
come in, and [J.T. Spencer] led us into the living room, and
 pointed down to the hallway and advised us that  was
where [defendant's] room was.” (Tr. at 18, 44-45.)
Detective Mills testified that the officers asked J.T.
Spencer if the defendant “was there . . . [a]nd [J.T.
Spencer] welcomed us into the house - you know, he welcomed
us into the house and walked us down the hallways to
[defendant's] bedroom.” (Tr. at 62, 71-72.) The
officers entered the bedroom and made contact with the
defendant, who was only wearing underwear. (Tr. at 19-20.)
Detective Mills handcuffed the defendant, took him outside,
and placed him in a squad car. (Tr. at 20-21, 65, 80.)
Meanwhile, Officer Reed, who had noticed marijuana residue
sitting on top of defendant's dresser, stood in the
doorway of defendant's bedroom to secure the room. (Tr.
at 21.) Officer Reed was also concerned that there might be a
weapon in the room based on defendant's previous threat.
(Id.) Shortly thereafter, the defendant asked
Detective Mills if he could bring him some clothes. When
Detective Mills returned to the bedroom to retrieve
defendant's clothing, he noticed that one of the drawers
of the dresser was partially open. Detective Mills could see
a handgun through the opening. (Tr. at 23, 28, 53, 65-69; Ex.
1.) Detective Mills pointed out the gun to Officer Reed, who
was able to see the gun using a flashlight. (Tr. at 54, 60.)
After J.T. Spencer gave the officers consent to search the
bedroom, the officers seized the firearm from the dresser.
(Tr. at 48-49, 55-56, 85, 91-92.) Defendant was subsequently
indicted for being an unlawful user of a controlled substance
who knowingly possessed a firearm, in violation of 18 U.S.C.
to the testimony of the defendant and J.T. Spencer, on
February 1, 2018, as J.T. Spencer was preparing to leave his
house, he noticed seven or eight unmarked police cars
approach his residence. (Tr. at 94.) He went back inside to
tell his wife and the defendant that the police were at the
house. (Tr. at 94, 130.) At that time, the drawers to the
defendant's dresser were all closed. (Tr. at 123,
134-35.) As J.T. Spencer was making his way back to the front
door, the officers entered the house through the front door
without permission and asked for defendant. (Tr. at 96-97.)
The officers walked down the hallway and found the defendant
in the bedroom attempting to get dressed. (Tr. at 97.)
Defendant was handcuffed and placed in a squad car, while
J.T. Spencer and his wife remained seated on their living
room couch. (Tr. at 99, 130.) J.T. Spencer testified that,
from the living room, he could hear at least one officer
opening drawers and searching the bedroom while his son was
in the squad car. (Tr. at 99.) According to J.T. Spencer, he
signed a consent to search form, but did so only after the
officers had already found the firearm. (Tr. at 109, 111.)
on the court's observation of the witnesses as they
testified at the hearing and a review of the hearing
transcript and exhibits, the court finds the testimony of the
officers to be credible and the testimony of the defendant
and J.T. Spencer to be not credible. Specifically, the court
finds that (1) the officers sought and obtained permission
from J.T. Spencer to enter his residence to look for
defendant; (2) the drawer where the firearm was found was
already partially open when the officers initially entered
the defendant's bedroom; and (3) the officers did not
open any of the drawers or conduct a search of the bedroom
prior to seeing the firearm.
PROPOSED CONCLUSIONS OF LAW
Fourth Amendment provides, in relevant part, that
“[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated[.]” U.S.
Const. amend. IV. Warrantless searches 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)). A warrantless search of a dwelling may
be conducted “with the voluntary consent of an
individual possessing authority.” Georgia v.
Randolph, 547 U.S. 103, 109 (2006); see also Florida
v. Jimeno, 500 U.S. 248, 250-51 (1991) (“[I]t is
no doubt reasonable for the police to conduct a search once
they have been permitted to do so.”).
Fourth Amendment has drawn a firm line at the entrance to the
house. Absent exigent circumstances, that threshold may not
reasonably be crossed without a warrant.'”
United States v. Thomas, 430 F.3d 274, 276 (6th Cir.
2005) (quoting Payton v. New York, 445 U.S. 573,
590(1980)); see also Welsh v. Wisconsin,
466 U.S. 740, 748 (1984) (“It is axiomatic that the
physical entry of the home is the chief evil against which
the wording of the Fourth Amendment is directed.”)
(internal quotations omitted). “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); see also United States v.
Steagald, 451 U.S. 204, 205-06 (2000). Such consent must
be voluntary and freely given. Moon, 513 F.3d at 537
(citing Bumper v. North Carolina, 391 U.S. 543, 548
(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 is
required to show something more than ‘mere
acquiescence' on the part of the defendant.”
United States v. Holland, 522 Fed.Appx. 265, 274
(6th Cir. 2013) (quoting United States v. Canipe,
569 F.3d 597, 603 (6th Cir. 2009)).
a consent to a search was in fact ‘voluntary' or
was the product of duress or coercion, express or implied, is
a question of fact to be determined from the totality of all
the circumstances.'” Moon, 513 F.3d at 537
(quoting Schneckloth v. Bustamonte, 412 U.S. 218,
227 (1973)). Relevant circumstances may include the age,
intelligence, and education of the individual, whether the
individual understood that she had the right to refuse
consent, the use of coercive conduct by police, and whether
the individual knew her constitutional rights. United
States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999);
see also United States v. Frost, 521 Fed.Appx. 484,
488-89 (6th Cir. 2013); United States v. Ables, 280
Fed.Appx. 513, 516-17 (6th Cir. 2008). Although a police
officer is not required to inform an individual of her right
to refuse consent, “the absence of such a warning is
considered in the totality of the circumstances
analysis.” United Sates v. Cowan, 704
Fed.Appx. 519, 526 (6th Cir. 2017) (quoting Moon,
513 F.3d at 572). “The burden of proving that a search
was voluntary is on the government . . . and ‘must be
proved by clear and positive testimony.'”
Moon, 513 F.3d at 537 (quoting United States v.
Scott, 578 F.2d 1186, 1188-89 (6th Cir. 1978)).
“The government's showing must satisfy the
preponderance standard.” Holland, 522
Fed.Appx. at 274 (citing Worley, 193 F.3d at 385).
court finds, based upon the totality of the circumstances,
the officers lawfully entered the residence because they had
J.T. Spencer's consent. Only three officers approached
the front door and none of them had their guns drawn. Officer
Reed told J.T. Spencer that they were there to look for the
defendant and he asked for permission to enter the residence,
which J.T. Spencer granted. See United States v.
Holland, 522 Fed.Appx. 265, 275 (6th Cir. 2013);
United States v. Wooden, No. 3:15-cr-12, 2015 WL
13736020, at *6 (E.D. Tenn. Oct. 23, 2015), adopted
by, 2015 WL 7459970 (E.D. Tenn. Nov. 24, 2015). At no
time did the officers engage in conduct that could be
considered coercive. J.T. Spencer was cooperative and
willingly pointed them in the direction of the
defendant's room. The court concludes that the government
has shown, based on clear and positive testimony, that the
officers obtained valid consent.
the plain view doctrine, officers may seize an item without a
warrant if: (1) the item seized is in plain view, (2) the
item's incriminating character is immediately apparent,
(3) the officer is lawfully in the place from where the item
can be plainly seen, and (4) the officer has a lawful right
of access to the item. United States v. Mathis, 738
F.3d 719, 732 (6th Cir. 2013) (citing Horton v.
California, 496 U.S. 128, 136-37 (1990)); see also
United States v. Galaviz, 645 F.3d 347, 355 (6th Cir.
2011) (“Under the plain-view doctrine, if police are
lawfully in a position from which they view an object, if its
incriminating character is immediately apparent, and if the
officers have a lawful right of access to the object, they
may seize it without a warrant.”) (internal quotations
omitted). “‘If an article is already in plain
view, neither its observation nor its seizure would involve
any invasion of privacy.'” United States v.
Barclay, 578 Fed.Appx. 545, 550 (6th Cir. 2014) (quoting
Horton, 496 U.S. at 133). The court finds that the
officers lawfully seized the defendant's gun because
Detective Mills and Officer Reed both saw the gun ...