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).
