United States Court of Appeals
For the First Circuit
No. 02-2135
UNITED STATES,
Appellant,
v.
ERNEST B. WEIDUL,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
[Hon. David M. Cohen, U.S. Magistrate Judge]
Before
Lynch, Circuit Judge,
Bownes, Senior Circuit Judge,
and Howard, Circuit Judge.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, were on brief for appellant.
David R. Beneman with whom Levenson, Vickerson & Beneman was
on brief for appellee.
March 31, 2003
Bownes, Senior Circuit Judge. The defendant-appellee, Ernest
Weidul ("Weidul"), was charged with being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g). The police found the
firearm after conducting a warrantless search of the home of Trisha
Malloch ("Malloch"), Weidul's fiancee. Weidul moved to suppress
the firearm. A Magistrate Judge found that Malloch did not
voluntarily consent to the search of her home and recommended that
Weidul's motion be granted. The district court adopted the
Magistrate Judge's recommendation and granted the motion to
suppress. The government appealed. We affirm.
I. BACKGROUND
We take the facts from the Magistrate-Judge's recommended
decision, which the district court adopted. See United States v.
Weidul, 227 F. Supp.2d 161, 162-65 (D. Me. 2002). When motions to
suppress are at issue, we review a district court's factual
findings for clear error. See United States v. Palmer, 203 F.3d
55, 60 (1st Cir. 2000). The ultimate conclusion as to whether
there is a Fourth Amendment violation is reviewed de novo. See
Ornelas v. United States, 517 U.S. 690, 691 (1996).
On the evening of January 11, 2001, Weidul called the
emergency department of Southern Maine Medical Center ("SMMC") and
threatened to "blow his head off" with a loaded .22 caliber gun.
The crisis-response worker who answered Weidul's phone call
overheard a female voice in the background screaming, "Oh my God,
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don't do it, don't do it." The crisis-response worker asked Weidul
to identify the person yelling and he replied that it was his
fiancee, Malloch. Weidul refused to let the crisis-response worker
speak with Malloch. The worker also observed that Weidul was
slurring his words and seemed to be intoxicated. Following
protocol, the crisis-response worker signaled for her colleague to
phone the police.
The colleague ascertained that the call was coming from a
residence in Kennebunk, Maine, and phoned the Kennebunk Police
Department. She told the police dispatcher that Weidul was
suicidal, had a loaded gun in his hand "two inches from his mouth,"
had been drinking, had two boxes of ammunition, and was threatening
to shoot police officers. She also reported that Weidul was at
Malloch's home and that Weidul refused to let Malloch speak with
the crisis-response workers.1 After five minutes, Weidul repeated
that there was nothing that could stop him from killing himself and
hung up the phone.
While officers were en route to Malloch's residence, the
Kennebunk police dispatcher received a phone call from Malloch.
Malloch reported that Weidul had passed out and was asleep, that
1
It can be inferred from the record that Weidul was staying
or living with Malloch. Therefore, he had an expectation of
privacy in her home and standing to challenge the warrantless
search. See Minnesota v. Olson, 495 U.S. 91, 99-100 (1990)
(overnight guests have a legitimate expectation of privacy in their
host's home).
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there was no gun involved, that Weidul was just a little depressed,
and there was nothing more to the situation. The dispatcher, who
was in simultaneous communication with the officers en route, asked
Malloch to meet the officers outside her home and she obliged.
One of the officers, Keith Mills ("Mills"), knew Weidul from
two previous domestic violence incidents in which he had threatened
to shoot his mother and sister, and had assaulted his father and
sister. Mills considered Weidul to have a "propensity for
violence" and knew that he had a history of mental instability.
Another officer, Zachary Brooks Harmon ("Harmon"), recalled an
incident in July, 2000, when Weidul pointed a gun at Malloch. Both
officers considered Weidul to be very dangerous. Mills also knew
Malloch from her work in Kennebunkport and from minor traffic
stops. Harmon knew Malloch from her previous traffic infractions
and chance encounters. He characterized her as a "cop nut" who was
fascinated by the police.
When the officers arrived at the scene, they met Malloch who
was outside her house. They spoke to Malloch as they went into the
house and asked her where both Weidul and the gun were located.
Malloch cooperated with police by telling them that Weidul was
upstairs sleeping in the bedroom; she did not protest them entering
her home. She did, however, deny that there was a gun in the
house.
The officers found Weidul upstairs, but found no weapon. They
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did, however, observe a gun cleaning kit on the right side of the
bed, along with a small, uncovered plastic box containing
medication bottles and .22 caliber ammunition. Weidul was lying on
the bed, apparently asleep. The police officers put plastic
"flexcuffs" on Weidul and placed him in a waiting patrol car, which
immediately departed from the Malloch residence to SMMC.
Harmon, Mills, and another officer re-entered Malloch's home.
Malloch was in her downstairs' living room, sitting in an armchair
speaking to Kennebunk police captain, Mike LeBlanc ("LeBlanc").
The substance of the conversation between Malloch and LeBlanc is
not in the record. LeBlanc had arrived on the scene at some time
subsequent to the other officers. A fifth officer was also
present. In Malloch's presence, LeBlanc instructed the officers to
make sure, for safety reasons, that there were no weapons in the
house. Malloch, still sitting in her armchair, did not protest.
To Harmon, she appeared "blase" and unconcerned that a search was
transpiring. Mills began looking around the living room and
noticed ammunition rounds in plain view on shelves and on the floor
next to the chair where Malloch was sitting. He found no weapons
in the living room.
Harmon proceeded from the living room toward the kitchen,
saying to Malloch, "I'm going to look in here, okay?" Malloch gave
no response. Harmon nonetheless entered the kitchen. After a few
moments in the kitchen, Harmon moved on to a small laundry room
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adjacent to the kitchen, telling Malloch, whom he could still see,
"I'm going to look in here." Malloch responded, "Okay." Harmon
entered the laundry room. The floor was littered with dirty
clothes. Harmon kicked aside some of the clothes and discovered a
loaded .22 caliber handgun, the object of the motion to suppress.
The officers continued to search the house for an hour after Harmon
found the gun.
II. DISCUSSION
The primary issue in this case is whether Malloch voluntarily
gave consent for the police to conduct a warrantless search of her
home. No claim is made that this search is warranted by exigent
circumstances. The government initially raises a question about
the proper standard of appellate review. It argues that whether
Malloch voluntarily gave consent to the search of her home is a
question of law that we should review de novo. Our rule has been
that voluntariness of consent is a factual matter that is subjected
to the clear error standard of review, and we adhere to that rule.
See United States v. Laine, 270 F.3d 71, 74 (1st Cir. 2001); United
States v. Chhien, 266 F.3d 1, 5 (1st Cir. 2001); United States v.
Barnett, 989 F.2d 546, 554 (1st Cir. 1993). Under this standard,
a district court's choice between two plausible competing
interpretations of the facts cannot be clearly erroneous. See
Palmer, 203 F.3d at 60. Instead, "the only real question for
appellate review is whether the evidence presented at the
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suppression hearing fairly supports [the district court's]
finding." Laine, 270 F.3d at 75.
Turning to the merits, "warrantless search and seizures in the
home violate the Fourth Amendment, absent consent or exigent
circumstances." Griffin v. Wisconsin, 483 U.S. 868, 883 (1987)
(Blackmun, J., dissenting). Consent must be voluntary to be valid.
See United States v. Perez-Montanez, 202 F.3d 434, 438 (1st Cir.
2000). Whether consent is voluntary is to be determined by
examining the totality of the circumstances, including the
interaction between the police and the person alleged to have given
consent. See United States v. Esquilin, 208 F.3d 315, 318 (1st
Cir. 2000); Perez-Montanez, 202 F.3d at 438.
The heart of the government's argument is that Malloch
voluntarily consented to the search when she responded "Okay" to
Officer Harmon's statement, "I'm going to look in here." The
government argues that the totality of the circumstances
demonstrate Malloch's "Okay" was voluntary consent. These
circumstances include the fact that Malloch was sitting in a chair
in her living room; that Malloch was a "cop nut" and was fascinated
by the police; the fact that Malloch had met Officer Harmon on a
prior occasion; the fact that Malloch's demeanor was low-key; and
the fact that Malloch did not protest when Captain LeBlanc told the
other officers to search the house for weapons.
The Magistrate Judge examined the totality of the
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circumstances and found that Malloch did not voluntarily consent to
the search of her home. The Magistrate Judge held:
Under all of these circumstances, Malloch's uttering of
the word "okay" as Harmon stated that he was about to
search the laundry room (meanwhile walking purposefully
in that direction) was not a consent to search--it was a
simple acquiescence to what any reasonable person would
have perceived, under the circumstances, as police
conduct tantamount to a claim of lawful authority to
search for weapons.
Weidul, 227 F. Supp.2d at 167-68.
We rule that the evidence fairly supports the Magistrate
Judge's finding. The critical facts are as follows. After Weidul
was removed from the house, Officer Harmon and two other officers
re-entered Malloch's home without permission. Once inside, they
found Malloch talking with Captain Leblanc. A fifth officer was
also present. In Malloch's presence, Leblanc told the other
officers that they had to search Malloch's house for weapons.
Malloch sat in a chair as the officers dispersed to search her
house. Officer Harmon asked Malloch if he could look in the
kitchen, but she did not respond. Harmon nevertheless entered the
kitchen. Harmon then told Malloch that he was going to look in the
laundry room. Malloch responded "Okay."
III. CONCLUSION
The Magistrate Judge's factual findings on the voluntariness
of Malloch's consent are fairly supported by the record. The
government merely offers evidence from which an alternative
conclusion can be drawn. This is not enough under the clearly
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erroneous standard of review. See United States v. Coraine, 198
F.3d 306, 310 (1st Cir. 1999). Absent voluntary consent, this
search violated the Fourth Amendment. Affirmed.
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