UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-31468
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARD FERGUSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(01-CR-43-ALL-J)
September 17, 2002
Before REAVLEY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
Bernard Ferguson appeals his guilty-plea conviction for being
a felon in possession of a firearm, claiming: the district court
failed to address the voluntariness vel non of the implied consent
for the warrantless search that led to his arrest, and this court
should therefore remand for a determination on voluntariness; or,
alternatively, the implied consent for the search was involuntary,
and this court should reverse his conviction and render judgment in
his favor. AFFIRMED.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
Ferguson’s arrest arises out of members of a joint task force
of city, state, and federal law enforcement officers going to the
New Orleans apartment of Phyllis Terrell to execute an arrest
warrant (probation violations) for Terrell’s boyfriend, Charles
Dright. They did not have a search warrant.
At Ferguson’s suppression hearing, United States Deputy
Marshal Brouillett, a task force member, testified: in mid-January
2001, officers received a tip that Dright might be residing at
Terrell’s apartment; Deputy Brouillett and other officers arrived
there after midnight of 30 January 2001; four officers, including
Deputy Brouillett and New Orleans Police Officer Smith, approached
the front door while other officers stationed themselves around the
apartment’s perimeter; Deputy Brouillett and Officer Smith knocked,
heard a voice inside ask who it was, and replied they were police;
they knocked again, received no response, but heard the sound of
furniture being moved and people talking; they knocked a third
time, and Ferguson opened the door; while they spoke with Ferguson,
Terrell approached the door; Deputy Brouillett and Officer Smith
informed Terrell they were police officers, stated they had a
warrant for Dright’s arrest, and asked if he was inside the
apartment; Terrell responded that Dright was in the bedroom and
pointed to the rear of the apartment; Deputy Brouillett and Officer
Smith, believing Terrell had given them permission to enter the
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apartment to locate Dright, proceeded to the bedroom and found him
there.
Deputy Brouillett further testified: while the above-
described events were taking place, officers positioned around the
apartment’s perimeter radioed that drugs had been tossed from one
of the apartment’s rear windows; Deputy Brouillett and Officer
Smith escorted Dright from the bedroom to the living room where
Ferguson and Terrell were located and advised them of their Miranda
rights; officers began searching the apartment; Deputy Brouillett
asked Terrell, Dright, and Ferguson if there were any weapons in
the apartment; and Ferguson replied affirmatively, directing Deputy
Brouillett to a desk drawer containing a semi-automatic pistol.
Officer Smith also testified at the suppression hearing. He
largely corroborated Deputy Brouillett’s testimony.
On the other hand, Terrell testified to a materially different
course of events: Ferguson, her brother, resided at the apartment
with her; at the time in question, she was in the bedroom with
Dright when she heard two knocks on her front door; after both
knocks, she heard Ferguson ask, “Who is it?”; at the third knock,
she sent Dright to answer the door; as Dright left the bedroom,
there was a kick at the door; she followed Dright, to find officers
already in her living room; she was handcuffed and, along with
Ferguson, taken outside into a hallway while officers searched the
apartment; at some point, they were brought back into the living
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room, while officers continued the search; the officers found a gun
in a desk drawer; and Dright, not Ferguson, claimed ownership of
it.
Ferguson was indicted for being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He
moved to suppress, citing United States v. Steagald, 451 U.S. 204
(1981), for the proposition that, absent consent or exigent
circumstances, officers may not enter and search a person’s
residence on the basis of an arrest warrant for another. Ferguson
claimed a lack of consent and exigent circumstances.
Alternatively, and assuming the officers validly entered Terrell’s
apartment, Ferguson claimed the search exceeded that permitted
incident to arrest.
The Government responded: Ferguson lacked standing to
challenge the search because he was neither the homeowner nor
recorded lessee; alternatively, the officers entered the apartment
only after they believed they had Terrell’s consent to enter; and
they inquired about, and discovered, the gun only after being
advised drugs had been thrown from the apartment.
After conducting the suppression hearing, the district court
rendered a detailed order, stating its reasons for denying the
motion. United States v. Ferguson, No. 01-43 (E.D. La. 12 Sept.
2001). First, it held Ferguson had standing to challenge the
search because he had a reasonable expectation of privacy in the
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apartment, in that he was often an overnight guest, planned to
spend that night at the apartment, and kept clothes there. (On
appeal, the Government does not contest standing.)
Concerning the conflicting testimony about the search, the
court found “the Government’s version of the events that transpired
on the night [Ferguson] was arrested is the most credible”. It
concluded: Terrell’s conduct (answering that Dright was in the
bedroom and pointing in that direction) “reasonably led the
officers to believe they had her consent to enter the apartment”.
In so concluding, it noted that Terrell “at no time objected or
attempted to stop the officers once they were inside her
apartment”.
“Under these circumstances”, it concluded “it was reasonable
for the officers to believe that ... Terrell had not just ‘merely
acquiesced’ to their entering her home, but had affirmatively
signaled that they had her permission to come inside and locate ...
Dright”. (The court also concluded “the officers were reasonable
in inquiring whether any weapons were present in the home and in
seizing the weapon belonging to [Ferguson] upon learning he was a
convicted felon”.)
Ferguson entered a conditional guilty plea (reserved right to
appeal denial of suppression motion). He was sentenced, inter
alia, to 63 months imprisonment.
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II.
In reviewing the denial of a suppression motion, following an
evidentiary hearing, “findings of fact are accepted unless clearly
erroneous, [and the] ultimate conclusion as to the
constitutionality of the law enforcement action is reviewed de
novo”. United States v. Orozco, 191 F.3d 578, 581 (5th Cir. 1999),
cert. denied, 528 U.S. 1144 (2000). “We view all of the evidence
introduced at the suppression hearing in the light most favorable
to the prevailing party, in this case the government.” Id.
Ferguson neither contests the district court’s crediting the
Government’s version of events nor disputes that Terrell impliedly
consented to the officers’ entering her apartment when she
responded that Dright was in the bedroom and pointed in that
direction. Rather, citing United States v. Watson, 273 F.3d 599
(5th Cir. 2001), he emphasizes that valid consent to a search
involves two components: the existence of consent and of
voluntariness. He claims, inter alia, his conviction must be
reversed and the case remanded because the district court erred as
a matter of law in not addressing the voluntariness vel non of
Terrell’s implied consent. (In the alternative, Ferguson claims:
the implied consent was involuntary; therefore, his conviction
should be reversed and judgment rendered in his favor. This
alternative claim is without merit. As discussed below, we
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conclude the district court found the consent was voluntary. That
finding was not clearly erroneous.)
Watson, which also involved a guilty-plea conviction to §
922(g)(1) charges, explained:
The government bears the burden of proving the
existence of voluntary consent to a search;
proof must be by a preponderance of evidence.
It is not enough to show the mere existence of
consent; the government also must show that
consent was freely and voluntarily given.
Id. at 603-04 (internal quotation marks and citations omitted;
emphasis added). Addressing the disposition of the suppression
motion, Watson noted: “The district court did not clearly err in
finding ... that Watson consented, but the court did not consider
voluntariness”. Id. at 604 (emphasis added). Rather, it had
“apparently conflated the question of voluntariness with that of
the mere existence of consent”. Id. “Therefore, [the Watson court
could not] accept the finding that there was a sufficient degree of
consent to justify the search.” Id. Accordingly, it vacated the
conviction and remanded for a voluntariness determination in
accordance with the guiding factors stated in United States v.
Ponce, 8 F.3d 989 (5th Cir. 1993):
(1) the voluntariness of the defendant’s
custodial status; (2) the presence of coercive
police procedures; (3) the extent and level of
the defendant’s cooperation with the police;
(4) the defendant’s awareness of his right to
refuse consent; (5) the defendant’s education
and intelligence; and (6) the defendant’s
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belief that no incriminating evidence will be
found.
Id. at 997.
Voluntariness vel non is a question of fact, reviewed only for
clear error. United States v. Tompkins, 130 F.3d 117, 120 (5th
Cir. 1997), cert. denied, 523 U.S. 1036 (1998). Here, although the
district court did not expressly address the voluntariness factors,
it did note the voluntariness requirement in its order denying the
suppression motion: “Consent to a warrantless search must be
voluntary and may be express or implied.... In determining whether
consent is voluntary, the Court looks to the totality of the
circumstances to assess whether the defendant has freely given
consent”. (Emphasis added.)
The order was attuned primarily to whether the existence of
consent was implied by Terrell’s conduct. On the other hand, in
the light of the record, the careful consideration of the
suppression motion by the district court, and its acknowledging the
voluntariness requirement, we are satisfied the district court
considered that requirement and found the consent was voluntary.
As noted supra, that finding was not clearly erroneous.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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United States v. Ferguson
Combined Opinion