United States v. McKerrell

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 5, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AM ERICA,

Plaintiff-Appellee,
No. 06-5209
v.

JACK W AYNE M cKERRELL, JR.,

Defendant-Appellant.

Appeal from the United States District Court
for the N orthern District of Oklahom a
(D.C. No. 06-CR-68-CVE)

Timothy L. Faerber, Assistant United States Attorney (David E. O’M eilia, United
States Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.

Barry L. Derryberry, Assistant Federal Public Defender (John V. Butcher, Federal
Public D efender, and Robert A. Ridenour, Assistant Federal Public D efender,
with him on the brief), Tulsa, Oklahoma, for D efendant-Appellant.

_________________________________

Before BR ISC OE, HOL LOW AY, and O’BRIEN, Circuit Judges.
_______________________________

H O L LO W A Y, Circuit Judge.

The Supreme Court in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515,

1519 (2006), held that the Fourth Amendment forbids a warrantless search of a

shared dw elling for evidence over a physically-present resident’s express
objection, notwithstanding his or her co-tenant’s consent to search. W e must

decide whether barricading oneself in one’s residence, in an unsuccessful effort to

avoid a lawful arrest, vitiates a co-tenant’s subsequent consent to search the

residence. W e hold that under the circumstances here, where the district court

found that Defendant Jack M cKerrell, Jr. (“M cKerrell”) barricaded himself in his

residence to avoid arrest and never expressly objected to a possible search,

M cKerrell’s co-tenant’s consent justifies the challenged search. W e also hold

that the police removed M cKerrell from the scene to carry out a lawful arrest, not

to mute his potential objection to the search. W e therefore affirm the district

court’s denial of M cKerrell’s motion to suppress.

I. BACKGROUND

On February 24, 2006, an anonymous caller informed the Tulsa Police

Department that M cKerrell had outstanding arrest warrants, used

methamphetamine, and possessed an assault rifle and a shotgun. R., Vol. I, Doc.

25, at 2. The police investigated this tip and discovered that M cKerrell had two

outstanding felony warrants from Tulsa County, Oklahoma, for possessing a

stolen vehicle, two municipal traffic w arrants from Tulsa, Oklahoma, and a four-

count felony warrant from Craig County, Oklahoma, for drug and traffic charges.

Id. Officers determined M cKerrell’s address by searching utility-company

records. Id.

Less than two weeks later, another caller told the police that M cKerrell was

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working at home in his front yard. Id. In response, several police officers

surrounded the residence and announced their presence. R., Vol. III, at 9-10. By

that time, M cKerrell was inside the home w ith his wife and young child, both of

whom also resided at the home. Id. at 9, 12, 34. Instead of peacefully

surrendering to the officers, however, M cKerrell quickly closed the garage door

and front door to barricade himself inside. Id. at 10.

W ithin minutes, M rs. M cKerrell exited the home, leaving M cKerrell and

their young child inside. Id. at 10, 12. The police began negotiating with

M cKerrell by calling a cell phone in the home and requesting, over the course of

three or four conversations, that he surrender. Id. at 16, 17. Both parties dispute

what was said during these conversations and M cKerrell’s motive for refusing to

leave the house. Sergeant M iddleton, who spoke with M cKerrell on the phone,

testified that M cKerrell never objected to a search and was concerned solely with

being arrested. Id. at 16. W hile Sergeant M iddleton could not recall whether

M cKerrell told him not to enter the residence, id. at 17-18, the Sergeant clearly

remembered that the conversation related entirely to whether M cKerrell would

allow the officers to execute the several valid arrest warrants. Id. at 20-21.

Indeed, he testified that M cKerrell never objected to a search. Id. at 16.

Sergeant W itt, another officer at the scene, testified similarly: M cKerrell

did not express an objection to a search either before or after the police arrested

him. Id. at 6. M cKerrell testified that he expressly informed the police several

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times that he did not want them inside his home. Id. at 49. The district court

found that M cKerrell never expressly refused to provide his consent to search.

R., Vol. I, Doc. 25, at 8-9. Instead, the district court credited the officers’

testimony that the subject of these telephone conversations was M cK errell’s

desire to avoid arrest. Id.

After these three or four conversations, M cKerrell decided to surrender

peacefully. R., Vol. III, at 17, 12. The police handcuffed M cKerrell

immediately. Id. at 12. They did not speak to him about searching the residence

or prohibit him from speaking with M rs. M cKerrell. Id. at 6; Id. at 23, 30. They

merely placed him under arrest and transported him to the police station about

five minutes later. Id. at 12. Sergeant W itt testified that the police did not

remove M cKerrell from the scene to prevent him from influencing M rs.

M cKerrell’s decision about consenting to a search. Id. at 13. M ore broadly,

Sergeant W itt testified that the officers’ decision to remove M cKerrell from the

scene was unrelated to their decision to search the house. Id. at 13-14. Sergeant

M iddleton confirmed that nothing unusual occurred: “it is not unusual [that we

took M cKerrell away from the scene so quickly]. Usually, once we make the

arrest, w e put them in the vehicle and transport them.” Id. at 19-20.

After M cKerrell had left the scene, Sergeant W itt asked M rs. M cKerrell to

speak with him and Sergeant Petree. Id. at 5. The district court found no

evidence that the police coerced her to do so. R., Vol. I, Doc. 25, at 8. M rs.

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M cKerrell agreed to speak with the officers, and they all entered the home, with

M rs. M cKerrell’s permission, to begin the conversation. R., Vol. III, at 6.

Sergeant W itt used this conversation as an opportunity to determine how

long the M cKerrell family had lived at this home (about four years) and the scope

of M rs. M cKerrell’s authority over the home’s interior. Id. at 7. Sergeant W itt

testified that M rs. M cKerrell “[had] full run of the house,” which he inferred from

M rs. M cKerrell’s statement that she did laundry in the home and was able to

access every drawer and closet in the home. Id.

After discussing other questions that M rs. M cKerrell posed, primarily

questions about M cKerrell’s bond, the officers asked M rs. M cKerrell for her

consent to search the home. Id. at 8. Sergeant Petree presented M rs. M cKerrell

with a consent form and explained its contents, which notified M rs. M cKerrell,

inter alia, that she had the right to withhold her consent and the right to stop the

search at any time. Id. at 8, 23-25; R., Vol. I, Doc. 23, Ex. 1. M rs. M cKerrell

orally consented and then signed the form. R., Vol. III, 24-25; R., Vol. I, Doc.

23, Ex. 1. It is undisputed that M cKerrell was absent when M rs. M cKerrell

consented to this search. R., Vol. I, Doc. 25, at 9. The police then searched the

home and found four firearms, which M cKerrell possessed illegally.

Ultimately, M cK errell filed a motion to suppress, arguing that the officers

violated the Fourth Amendment by searching his residence based on his wife’s

consent. R., Vol. I, Doc. 16. The district court denied M cKerrell’s motion

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because M rs. M cKerrell’s consent was sufficient to justify the search in light of

M cKerrell’s failure to object to the search. R., Vol. I, Doc. 25, at 8-9.

Specifically, the court found that M cKerrell’s conduct at the scene— shutting his

doors and remaining inside— related solely to his desire to avoid arrest. Id. at 8.

The district judge found “persuasive the testimony of the officers that defendant

did not expressly refuse consent to search his home.” Id. at 9. Thus, the court

distinguished Georgia v. Randolph because M cKerrell never “articulated ‘express

refusal of consent to a police search’ to officers prior to [M rs. M cKerrell’s]

consent to search their home.” R., Vol. I, Doc. 25, at 9 (citing 126 S.Ct. at 1523,

1528).

M cKerrell then pleaded guilty to possessing firearms after a former felony

conviction, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and received a

sentence of 37 months’ imprisonment, 3 years’ supervised release, a $100 special

assessment, and a $1,500 fine. R., Vol. I, Doc. 42. M cKerrell reserved the right

to appeal the denial of his motion to suppress the use as evidence of the firearms

seized from his residence. R., Vol. I, Doc. 10, at 1, 3. He now appeals his

conviction, asserting error in the district court’s denial of his motion to suppress.

W e exercise jurisdiction under 28 U.S.C. § 1291.

II. D ISC USSIO N

M cKerrell challenges the search’s constitutionality on two grounds: first,

he says that the search violated the Fourth Amendment because barricading

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himself in his residence conveyed his objection to the search and therefore

precluded the officers from relying on his wife’s consent; and second, he argues

that the police removed him from the scene to avoid his possible objection to the

search.

A. The Effect of M rs. M cK errell’s Consent

1.

In reviewing the denial of a motion to suppress, we accept the district

court’s factual findings unless clearly erroneous, and we view the evidence in the

light most favorable to the Government. United States v. Alcaraz-Arellano, 441

F.3d 1252, 1258 (10th Cir. 2006). W e review de novo the ultimate determination

of Fourth Amendment reasonableness. Id.

The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures . . . .” U.S. Const. amend. IV. This protection takes on special meaning

when the challenged intrusion involves the home: “physical entry of the home is

the chief evil against which the wording of the Fourth Amendment is directed.”

W elsh v. W isconsin, 466 U.S. 740, 748 (1984). But the Fourth Amendment

permits a warrantless entry and search of a home when the “police obtain the

voluntary consent of an occupant who shares, or is reasonably believed to share,

authority over the area in common with a co-occupant who later objects to the use

of evidence so obtained.” Randolph, 126 S.Ct. at 1518.

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 Before Randolph was decided the question remained whether the police

may search a home when one occupant sharing the residence consents, but the

other occupant, who later seeks to suppress the evidence, is present at the scene

and expressly refuses to consent. Randolph answered this question in the

negative. In Randolph, the defendant’s wife complained to the police that her

husband took away their son following a domestic dispute. Id. at 1519. W hen the

police arrived, the wife informed them that her husband was a cocaine addict, and

she volunteered that “there w ere ‘items of drug evidence’” in the house. Id. A t

this point, both the wife and the defendant were present at the home’s entrance.

The police first sought the defendant’s consent to search the residence, but he

expressly refused to consent. Id. So the police then turned to the wife and asked

for her consent, which she gave. Id. Thereafter, the police searched the residence

and found the defendant’s cocaine.

Presented with these facts, the Supreme Court in Randolph set out to decide

whether the wife’s consent was sufficient to justify the search by noting that

“[t]he constant element in assessing Fourth Amendment reasonableness in the

consent cases . . . is the great significance given to widely shared social

expectations . . . .” Id. at 1521. In other words, the Court characterized its

precedent as holding not only that a co-tenant’s consent may be valid as against

an absent, nonconsenting tenant, but also that the reasonableness of the search is

in significant part “a function of commonly held understanding about the

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authority that co-inhabitants may exercise in ways that affect each other’s

interests.” Id.

Applying this methodology, Randolph stated that “it is fair to say that a

caller standing at the door of shared premises would have no confidence that one

occupant’s invitation was a sufficiently good reason to enter when a fellow tenant

stood there saying, ‘stay out.’” Id. at 1522-23. Instead, the Court reasoned that

unless there is a recognized hierarchy between the co-tenants, they must resolve

their conflict over use of their common quarters through voluntary

accommodation, not by appeals to authority. Id. at 1523.

Randolph then analyzed the facts presented. It reasoned that since a tenant

has no authority to open the door to a visitor over his or her co-tenant’s objection,

while present, a police officer has no better claim to the reasonableness of

entering than the officer would have in the absence of consent. Id. Thus, the

Court held that “a warrantless search of a shared dwelling for evidence over the

express refusal of consent by a physically present resident cannot be justified as

reasonable as to him on the basis of consent given to the police by another

resident.” Id. at 1526.

The Court in Randolph admitted that it was drawing a fine line by requiring

the defendant to be at the scene and to expressly refuse to consent, but the Court

reaffirmed that this is the line it drew when it stated that a search is constitutional

even if the potential objector is nearby and not invited to take part in the

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threshold colloquy. Id. at 1527.

2.

Unlike in R andolph, the present case does not invite a straightforward

application of the rule that a physically-present co-tenant’s express refusal to

consent vitiates his or her fellow tenant’s consent to search. The district court

here found that M cKerrell never refused consent to the search. R., Vol. I, Doc.

25, at 8-9. M oreover, although M cKerrell argues that he impliedly refused to

consent by staying in his home after the police arrived (w hich would still

distinguish this case from Randolph because Randolph required an express

objection), the district court disagreed here. Based on the officers’ testimony, the

district court instead found that the only reason M cKerrell barricaded himself in

his residence was “to avoid arrest and to avoid the possibility of armed officers

coming into his home to forcibly arrest him while his son was also inside the

home.” Id. at 8. The court also credited the officers’ testimony that, on the

phone, M cKerrell seemed to be concerned only with the validity of the arrest

warrants, not with the possibility that the officers might search his residence.

The factual distinctions between this case and Randolph call into doubt

Randolph’s applicability. M cKerrell urges this court to apply Randolph, and

exclude the evidence obtained from his home, after deflecting our attention from

these distinctions to the instant he shut the door when the officers first arrived at

his house. M cKerrell contends that his only concern at that moment was to

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prevent the officers from entering his home— the functional equivalent of

expressly refusing to consent to a search of the home. Principal Brief of

Defendant/Appellant at 11 (citing United States v. Henderson, 2006 W L 3469538,

at *1, *2 (N.D. Ill. 2006) (stating that the defendant “surely included a direction

that . . . [the police] refrain from searching [his] residence” when he said “[g]et

the fu*k out of my house”)). To be sure, the district court could have inferred

that shutting a door in the face of an imminent arrest amounts to an implied

directive to the officers to stay out. Regardless, we conclude that Randolph’s

narrow holding does not apply here.

First, unlike in H enderson, the district court here found that M cK errell’s

sole concern was to avoid arrest, not to avoid arrest and prevent the officers from

entering his home to search. The evidence supports this finding: M cKerrell never

told the officers to stay out of his home when they arrived; M cKerrell discussed

the arrest warrants when speaking on the phone with the police, but never

expressed concern over the possibility of a search; and M cKerrell never told the

officers to stay out of his home after he surrendered and the police arrested him,

arguably because his concern about being arrested dissipated upon his arrest.

W hile M cKerrell asks us to infer that he impliedly refused to consent when

he closed his doors to the police, the parties legitimately dispute w hether this

conduct related to M cKerrell’s desire to avoid arrest or to his desire to direct the

officers to leave his property and refrain from searching, or both. Although

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M cKerrell testified that he objected to a search, the district court did not clearly

err by finding that M cKerrell acted solely to avoid arrest.

Second, whatever meaning w e could decipher from M cKerrell’s actions,

Randolph explicitly declined to conduct this inquiry when it required the

defendant to have expressly objected to the search. See Randolph, 126 S.Ct. at

1519. W hile M cKerrell characterizes Randolph as a sweeping pronouncement

because Randolph’s introductory paragraph stated that “a physically present co-

occupant’s stated refusal to permit entry prevails [over his co-occupant’s

consent],” id., M cKerrell’s argument ignores that this statement was tethered to

the immediately preceding sentence (w hich asked whether a present co-tenant’s

express objection vitiated his co-tenant’s consent), that Randolph carefully

delineated the narrow circumstances in which its holding applied, and that

Randolph consciously employed a rule requiring an express objection by a present

co-tenant. See id. at 1527 (stating that “[t]his is the line we draw, and we think

the formalism is justified . . . [because] there is value in the simple clarity of

complementary rules, one recognizing the co-tenant’s permission when there is no

fellow occupant on hand, the other according dispositive weight to the fellow

occupant’s contrary indication when he expresses it”) (emphasis added).

M cKerrell asks us to ignore the Supreme Court’s plain language, reject its

consciously-imposed formalism, and apply a rule likely to beget the type of

confusion Randolph intended to avoid. W e reject this approach.

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 Third, even if we interpreted the district court’s opinion as finding that

M cKerrell attempted to avoid arrest by impliedly directing the officers not to

enter his residence to arrest him, the police were under no obligation to obey

M cKerrell’s implied request. In Valdez v. M cPheters, we held that an arrest

warrant could support the search of a dwelling when (1) the dwelling is the

suspect’s home, and (2) the police have an objectively reasonable belief that the

suspect “could be found within at the time of entry.” 172 F.3d 1220, 1225 (10th

Cir. 1999). There is no dispute that M cKerrell lived at the dwelling where the

police found his firearm. Likewise, there is no dispute that the police reasonably

believed that M cKerrell could be found within the dwelling. Although Valdez

does not justify the search here because the officers removed M cKerrell from the

scene before entering the house, Valdez demonstrates that M cKerrell’s alleged

instructions did not erect a legal barrier at his threshold. In other words, that the

officers did not immediately enter the home in this case reflects their attempt to

peacefully resolve a potentially dangerous confrontation, not their understanding

that they had somehow been denied their authority to enter M cKerrell’s home.

There is no question that the police could have rebuked M cKerrell’s door-closing

tactic by resorting to the battering ram.

For these reasons, M cK errell’s reliance on Randolph is misplaced. He

never expressly objected to the search, according to the finding which the record

supports. Therefore, Randolph’s holding does not apply here.

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 3.

W e are now left where Randolph began, noting that the reasonableness of

the search is in significant part “a function of commonly held understanding about

the authority that co-inhabitants may exercise in ways that affect each other’s

interests.” Randolph, 126 S.Ct. at 1521. Here, that understanding amounts to the

following principle: a co-tenant’s consent to search a shared residence may be

valid as against an absent, nonconsenting tenant. Id.; United States v. M atlock,

415 U.S. 164, 170 (1974). See also Randolph 126 S.Ct. at 1527 (stating that a

nearby potential objector “loses out” when the police do not invite him to take

part in the conversation in which his co-tenant gives permission to search).

M rs. M cKerrell exercised authority over the common area that she allowed

the officers to search, and the district court did not clearly err by finding that

M cKerrell did not object to the search. In light of these facts, we find no error in

the district court’s conclusion that the officers complied with the Fourth

Amendment by relying on M rs. M cKerrell’s consent to search the residence.

B. Removing M cK errell from the Scene

M cKerrell also argues that the “evidence in this case indicates that removal

of the Defendant minutes after his arrest was for the sake of avoiding his protest

of a search.” Principal Brief of Defendant/Appellant at 12. M cKerrell relies on

the limitation imposed by Randolph that a search might be unconstitutional “[if

there is] evidence that the police have removed the potentially objecting tenant

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from the entrance for the sake of avoiding a possible objection . . . .” Randolph,

126 S.Ct. at 1527. M cKerrell infers that this occurred here because “any police

officer would have had a design to search [M cKerrell’s] residence if the legal

opportunity developed” after receiving a tip that M cKerrell possessed guns and

drugs. Principal Brief of Defendant/Appellant at 12. In other words, M cKerrell

argues, the fact that the officers searched his residence demonstrates that the

officers planned to search the residence, and this search could occur only after

avoiding M cKerrell’s potential objection by removing him from the scene.

M cKerrell’s argument begs the question by leaping to its conclusion from

the innocuous inference that the police searched M cKerrell’s residence because

they planned to do so “if the legal opportunity developed,” id. Despite

M cKerrell’s speculations, we must ask only whether the evidence shows that the

officers removed M cKerrell from the scene to avoid his possible objection. And

on this point, there is no evidence that the police removed M cKerrell for this

reason.

The evidence does show that the police removed M cKerrell from the scene

and transported him to the police station to carry out a lawful arrest. But

M cKerrell has not directed our attention to anything suspicious about the

procedures that the police employed. Instead, his analysis essentially urges us to

accept his unjustified speculations and circumvent Randolph’s evidentiary

requirement. Randolph stated that there must be evidence that the police removed

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the potentially objecting tenant from the scene to avoid his or her objection. See

Randolph, 126 S.Ct. at 1527. Since there is no evidence that the police prevented

M cK errell from objecting to the search when he w as at the scene, and since there

is no evidence that the officers removed M cKerrell for any reason other than

completing the arrest, we have no reason to invoke Randolph’s admonishment

that officers may not remove a defendant from the threshold to silence his or her

potential objection.

M cKerrell also argues that the police might invoke the justification that

they removed an arrestee to effect his or her arrest every time they arrest a

defendant— implying that accepting the officers’ justification would immunize

any post-arrest removal and consent search from Fourth Amendment challenge.

See Principal Brief of Defendant/Appellant at 12. But this observation does not

advance M cKerrell’s case. His argument wholly relies on the fact that the police

searched his residence, and therefore would have had the “design” to search, to

show that the police arrested and removed him to avoid his potential objection.

Accepting this speculation would come perilously close to adopting a rule that the

police must either invite a defendant into the threshold colloquy with the co-

tenant or otherwise suspend their normal arrest procedures and await a

defendant’s potential objection, however long it might take, before transporting

him or her to the station. R andolph does not support either approach. As

M cKerrell concedes, the Supreme Court in Randolph expressly rejected the notion

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that the police may not remove a potential objector from the scene until they ask

for the potential objector’s consent to search. Randolph, 126 S.Ct. at 1527-28;

see also id. at 1527 (stating that “[t]here is no ready reason to believe that efforts

to invite a refusal would make a difference in many cases, whereas every co-

tenant consent case would turn into a test about the adequacy of the police’s

efforts to consult w ith a potential objector”).

Randolph did not upset the procedures that may be employed following an

arrest; it merely suggested that the Fourth Amendment might prohibit a search

when evidence shows that the police removed the defendant from the scene to

avoid his or her potential objection to the search. Although evidence that the

police used an arrest as a tool to avoid a possible objection might trigger

Randolph, the bare fact that the police arrested M cKerrell and brought him to the

police station does not support such a conclusion here.

III. C ON CLU SIO N

The record supports the finding that M cKerrell never expressly objected to

the search that he now challenges. Additionally, the police removed M cKerrell

from the scene to complete an arrest, not to stifle his possible objection to the

subsequent search, according to findings the record supports. The district court’s

decision to deny the motion to suppress is therefore

AFFIRM ED.

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