Wednesday, November 19, 2014

United States v. Ronnie Whisenton

Opinion issued
September 2, 2014

Link to Eighth Circuit Court of Appeals Opinion

In United States of America v. Ronnie Whisenton, the Eighth Circuit considered whether law enforcement impermissibly violated the Fourth Amendment when they gained consent to search Mr. Whisenton’s house after a warrantless entry.[i]  The Eighth Circuit affirmed the Eastern District of Missouri’s denial of Mr. Whisenton’s motion to suppress the evidence obtained during the search of his house.[ii]   His conviction and sentence of 60 months imprisonment for conspiracy to distribute marijuana was upheld.[iii]

I.                   Facts & Holding

The following facts are representative of the District Court for the Eastern District of Missouri’s findings as recited by the Eighth Circuit.[iv]  Law enforcement officers and federal agents suspected Adrian Renee Bollinger of drug trafficking and followed her to Mr. Whisenton’s residence on the morning of March 1, 2012.[v]  They watched Whisenton get inside Adrian’s car, bend towards a hidden compartment with Adrian, and then exit with a grocery bag.[vi]
Adrian drove away, but the officers stopped her for a traffic violation, and – after a canine drug alert – they searched her car and found approximately $73,000 in a hidden compartment.[vii]  Later that day, they went back to Mr. Whisenton’s house; they decided to attempt to “knock and talk” to gain consent to search the house.[viii]  But a records check on the occupants revealed one of them had a criminal record for guns and drugs.[ix]  Then, they saw a woman in a corrections officer’s uniform exit the house; they asked her for permission to do a search and she told them they would have to ask her husband, Mr. Whisenton.[x]

The police stated that after seeing both the woman, who they assumed had access to a weapon, and the criminal record of the occupant, they feared for their safety.[xi]  So they waited ten seconds and knocked on the door, Mr. Whisenton’s wife opened it, and they pushed her back and entered the home with guns drawn.[xii]

The police proceeded to direct Whisenton to sit down as they performed a protective sweep.[xiii]  Then, they asked him for consent to search.[xiv]  Still sitting, Whisenton asked them for permission to smoke a cigarette, which they granted, and after smoking it, continued to sit in silence.[xv]  Then, the agents told Mr. Whisenton that if he did not consent to the search, they would get a warrant.[xvi]  Mr. Whisenton asked if they would tear up his house.[xvii]  After that was discussed, he gave verbal consent for the search – fifteen minutes after the initial entry.[xviii]

He also signed a written consent from stating: he “ha[d] been informed . . . of [his] right to refuse consent to a search of his property,” and he “voluntarily and intentionally consent[ed],” and the consent was “freely given and not the result of any promises, threats, coercion, or other intimidation.”[xix]  

Then, an agent took Mr. Whistenton to the kitchen for an interview.[xx]  His wife returned with his mother who objected to the search and informed Mr. Whisenton that he should not cooperate with the agents.[xxi]  Mr. Whisenton told his mother he knew what he was doing and asked her to leave.[xxii]  

The search resulted in a finding and seizure of two firearms, more than $100,000 in cash, and evidence of drugs.[xxiii]  Mr. Whisenton motioned to suppress all evidence recovered during the search as well as his statements to the agents.[xxiv]  Both the Magistrate Judge and the District Judge denied his motion to suppress because, although no exigent circumstances justified the warrantless entry into the home, a sufficient break occurred between the warrantless entry and Whisenton’s consent to allow for the admission of evidence.[xxv]

The Eighth Circuit’s Dissent by Judge Bye included the additional fact that the initial police report contained “absolutely no mention of exigent circumstances justifying the agents’ entry, even though the agents testified including the circumstances of entry – whether via consent, warrant, or exigent circumstances – would be very important.”[xxvi]  Judge Bye asserted that the government argued exigent circumstances existed only after seeing Whisenton’s surveillance video, months later.[xxvii]

However, the Eighth Circuit held that even if exigent circumstances did not justify the agents’ warrantless entry into Whisenton’s home, meaning the agents violated the Fourth Amendment, Mr. Whisenton’s express consent was (1) voluntary, and (2) the consent was an independent act of [the defendant’s] free will.[xxviii]  Therefore, the taint of the Fourth Amendment violation was purged.[xxix] 
II.                Legal Background

The Eighth Circuit reviewed the district court facts for clear error and its legal conclusions de novo.  Under United States v. Greer, an illegal entry can be cured by subsequent consent when the consent is: (1) voluntary; and (2) an independent act of the defendant’s free will.[xxx]  In deciding if the consent meets these requirements, the court looks at the following factors: (1) the “temporal proximity between the Fourth Amendment violation and the grant of consent to search;” (2) the “presence of any intervening circumstances;” and (3) the “purpose and flagrancy of the [agents’] Fourth Amendment violation.”[xxxi]  The recitation of Miranda warnings are also relevant if applicable.[xxxii]  The focus of Mr. Whisenton’s appeal centered on whether his consent was sufficient to cure the initial illegal entry.[xxxiii]

The temporal proximity factor aides the court in determining if the defendant’s consent resulted from police misconduct; the court “measure[s] temporal proximity from the point at “which the [agents’ conduct] became illegal to the time of the consent.””[xxxiv] The presence of intervening circumstances show if the defendant had an opportunity to “pause and reflect, to decline consent, or to revoke consent.”[xxxv]  Finally, to determine if law enforcement actions were “purposeful and flagrant,” the court looks at whether the violation was “investigatory in design and purpose and executed in the hope that something might come up.”[xxxvi]
III.             Comment

The Eighth Circuit was likely correct in affirming the district court’s denial of Mr. Whisenton’s motion to suppress.  Fifteen minutes elapsed between the initial entry and Mr. Whisenton’s consent, which seems sufficiently attenuated, and the agents’ multiple requests for consent did not include any threats or coercion and asking for permission more than once is not “police misconduct.”[xxxvii]
Further, Mr. Whisenton took the time to smoke a cigarette, specifically asked the officers details about the search (i.e., would it “tear up” his house?), and the form he signed iterated that he was not required to grant consent.[xxxviii]These intervening circumstances also helped demonstrate the attenuation between the illegal entry and the consent to search.

Finally, the majority held that the illegal entry was not done solely for the purpose of obtaining consent to search because agents testified that safety concerns also motivated the entry.[xxxix]  The dissent, however, criticizes this by pointing out the absence of any mention of these concerns in any of the police reports; Judge Bye argues these alleged concerns were a product of litigation, not a relevant consideration during the time of the illegal entry.[xl] The dissent also highlights facts indicating the officers violently entered the house, even pushing Mr. Whisenton’s wife out of their way.[xli]  This is in contrast to the facts in Greer, where the door to the home being searched was already open so no force was needed.[xlii]

Although the dissent’s criticisms are valid, the majority accepted the district court’s facts and affirmed the denial of the motion to suppress, holding that even if the officers’ initial entry was illegal, the defendant subsequently gave clear and express consent allowing the search.  That consent was sufficient to cure any possible constitutional violation.

- Liz Lafoe

[i] 765 F.3d 938.
[ii] Id. at 939-41.
[iii] Id.
[iv] Id.
[v] Id.
[vi] Id.
[vii] Id.
[viii] Id.
[ix] Id.
[x] Id.
[xi] Id.
[xii] Id.
[xiii] Id.
[xiv] Id.
[xv] Id.
[xvi] Id.
[xvii] Id.
[xviii] Id.
[xix] Id.
[xx] Id.
[xxi] Id.
[xxii] Id.
[xxiii] Id.
[xxiv] Id.
[xxv] Id.
[xxvi] Id.
[xxvii] Id.
[xxviii] Id.
[xxix] Id.
[xxx] Id. at 941-43 (citing United States v. Greer, 607 F.3d 559, 564 (8th Cir. 2010).
[xxxi] Id. (citing United States v. Barnum, 564 F.3d 964, 971 (8th Cir. 2009)).
[xxxii] Id. (citing Greer, 607 F.3d at 564).
[xxxiii] Id.
[xxxiv] Id. (citing Barnum, 564 F.3d at 972; quoting United States v. Esquivel, 507 F.3d 1154, 1160 (8th Cir. 2007)).
[xxxv] Id.
[xxxvi] Id.
[xxxvii] Id.
[xxxviii] Id.
[xxxix] Id.
[xl] Id. at 943-45.
[xli] Id.
[xlii] Id. at 942-45 (citing Greer, 607 F.3d at 564).