Case: 10-20422 Document: 00511786289 Page: 1 Date Filed: 03/13/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 13, 2012
No. 10-20422
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN COOKE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Steven Cooke pleaded guilty of being a felon in possession of stolen fire-
arms and body armor in violation of 18 U.S.C. §§ 922(g) and 931(a)(2), respec-
tively. His plea was subject to an appeal of the denial of his motion to suppress
evidence, namely, the guns and armor discovered during a search of his house.
Cooke alleges that the police unlawfully entered the curtilage while attempting
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to conduct a “knock and talk” in violation of the Fourth Amendment and that his
mother’s consent to enter the premises was vitiated by his prior express refusal
under Georgia v. Randolph, 547 U.S. 103 (2006), even though his mother, but
not Cooke, was at the house. We affirm.
I.
Cooke was arrested in Polk County after suspicious activity was reported
at a motel. While searching his truck and motel room, officers found two weap-
ons, a digital camera with memory cards, ammunition, and a trace of metham-
phetamine. The camera had pictures showing Cooke holding firearms other
than those found. Two Secret Service agents, suspecting Cooke was counterfeit-
ing money, asked to search his residence in Tomball, Texas (Harris County). He
refused.
A week after Cooke’s arrest and while he was still in jail, Secret Service,
ATF, and local law enforcement agents visited the residence to conduct a “knock
and talk.” The residence is unique, located at the corner of two residential
streets, with a fence separating the property from neighbors, but no fence along
the two street-sides. Aside from the residence, the property has several trees
and a large driveway separating the residence from the street by about fifty feet.
The exterior is windowless and resembles a barn or warehouse. The front and
back each have two, large sliding exterior barn doors, with a security camera
above the front doors. Inside the structure is a large area with a dirt floor, save
for a paved sidewalk path that leads to a stoop and another set of doors. Inside
the second set of interior doors are living quarters where Cooke, his wife, and his
mother resided.
When agents approached, they noticed that one of the exterior barn doors
had been damaged by a hurricane, leaving an opening through which one could
walk directly into the residence. The agents also claim that the second barn door
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was “wide open” such that they could see through the entire residence, similar
to a “carport,” because the rear barn doors were also open. Cooke claims that the
intact front barn door was closed. Believing that knocking on the exterior barn
doors would be futile, the agents walked through the open barn door and
knocked on the interior set of doors. After about a minute of knocking and
announcing, Ima Cooke (“Ima”), Cooke’s 78-year old mother, came to the door,
asked the officers what they wanted, and after a brief conversation explaining
that they wanted to enter the residence and ask questions, allowed them into the
living quarters.
While speaking with Ima, one agent saw a shotgun shell and gun safe
lying in plain view and, based on that information, the officers eventually
secured a search warrant. In the safe they found numerous firearms, ammuni-
tion, and a bulletproof vest.
II.
In the district court, Cooke moved to suppress the evidence on the ground
that the agents unlawfully entered the curtilage of his residence when they con-
ducted the knock and talk, that Ima’s consent was not voluntary, and that his
refusal of consent trumped Ima’s consent. The district court denied the motions,
and Cooke pleaded guilty, reserving his right to appeal the suppression motions
in his plea agreement. Cooke now renews his contentions that agents unlawfully
entered the curtilage and that his refusal of consent trumps his mother’s con-
sent. He does not appeal the ruling that Ima’s consent was voluntary.
III.
In the context of Fourth Amendment suppression issues, this court reviews
questions of law de novo and questions of fact for clear error. United States v.
Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003). We view evidence presented at the
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suppression hearing in the light most favorable to the prevailing party (here, the
government). Id. Thus, we “should uphold the district court’s ruling to deny the
suppression motion if there is any reasonable view of the evidence to support it.”
United States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc) (internal
quotation marks and citations omitted).
Cooke contends that law enforcement unlawfully entered the curtilage of
the house when they crossed the barndoor threshold without a warrant or con-
sent. Those actions, he argues, led to the discovery of the unlawfully possessed
firearms and body armor, which, as fruit of the poisonous tree, should be sup-
pressed. The government asserts that the area between the two sets of doors
was not part of the curtilage, so Cooke’s rights were not violated when the offi-
cers entered to knock on the interior set of doors.
The parties agree that the touchstone case for determining what part of
a residence is “curtilage” is United States v. Dunn, 480 U.S. 294 (1987), which
laid out a four-factor test: (1) the proximity of the area claimed to be curtilage
to the house, (2) whether the area is included within an enclosure surrounding
the house, (3) the nature of the uses to which the area is put, and (4) the steps
taken by the resident to protect the area from observation by people passing by.
Id. at 301. This test does not mechanically answer all curtilage questions, but
rather, “these factors are useful analytical tools only to the degree that, in any
given case, they bear upon the centrally relevant consideration—whether the
area in question is so intimately tied to the home itself that it should be placed
under the home’s ‘umbrella’ of Fourth Amendment protection.” Id.
The first Dunn factor weighs in favor of Cooke, as the government con-
cedes, because the area in question was physically attached to, and shared the
same roof as, the residence. The second factor also supports Cooke: The area
that he claims to be curtilage was surrounded by the walls of the structure,
which completely surround the residence. Although no fence completely sur-
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rounds the structure (the only fence on the property was on two sides), the walls
and barn doors around the area in question practically functioned as a fence:
One is required to pass through the barn doors and into the area in question to
reach the front door of the living quarters.
The third factor supports the government’s position: The area had a dirt
floor, had a paved pathway leading to the interior doors, and seems to have been
used as storage. Finally, the fourth factor also tends to support the government:
Although the barn doors could be closed, completely obstructing the public’s
view, at least one barn door was broken, and government agents testified that
both the front and rear doors were “wide open.” The district court seemed to
credit the government’s account, describing the area as “akin to a covered porch”
into which “any member of the public would have gone to knock at the defen-
dant’s front door.”
Given the peculiarities of the residence, it is not surprising that the four
Dunn factors do not provide dispositive guidance as to whether the area immedi-
ately inside the barn doors is curtilage. But the central aim of Dunn is deter-
mining whether the area in question “harbors the intimate activity associated
with the sanctity of a man’s home and the privacies of life” such that the area is
“so intimately tied to the home itself that it should be placed under the home’s
umbrella of Fourth Amendment protection.” Id. at 300-01 (internal quotation
marks and citations omitted).
Cooke relies on several facts that demonstrate the privacy and intimacy
of the area. He notes that a security camera pointed to the driveway, meaning
that the officers should have been on alert that the interior of the structure was
a private space and that the occupants would be able to see them without the
officers’ having to enter the barn doors. The agents claim not to have noticed the
security camera. Cooke also points to a sign posted on the interior set of doors
that should have warned officers that only invitees were allowed on the prem-
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ises.1 But, the officers could see that sign only after they had entered through
the barn doors, and the sign could be read to apply only to the living quarters
and not necessarily to the area in question.
The government and district court point to three facts of their own that
show the area was not a private or intimate space. First, the area had a dirt
floor and a paved sidewalk that leads to the interior door. Second, the contents
of the area included such things as nonoperating washing machines and dryers,
ladders, a grill, and other sundry items one would expect to find in a storage
area or yard. Finally, and perhaps most importantly, the government contends,
and the court agreed, that the doors of the area were open wide enough such that
the items stored there were exposed to the elements, the public could see into the
area from the street, and any member of the public would reasonably think that
they would have to enter and knock on the interior doors when visiting.2
This last fact is especially important in light of United States v. Thomas,
120 F.3d 564 (5th Cir. 1997). Because Cooke’s residence is so idiosyncratic and
this court’s caselaw on curtilage so sparse, no case from this circuit is on point
or closely analogous. But Thomas provides guidance. There, the police, who sus-
pected marihuana in an apartment, walked past an open gate of a privacy fence
that surrounded the apartment to knock on the door and obtain consent to
search. Id. at 586. The defendants argued that the area enclosed by the fence
was part of the curtilage, so their Fourth Amendment rights were violated when
1
The sign read: “Attention: Number one, what you see here, hear here, do here stays
here when you leave here; number two, remember, you are here only because you are/were
invited here; number three, there will be absolutely no 911 calls made from this address for
any reason, not for you and not for me, period. This is not a joke. Choices made; consequences
paid. SS.”
2
Additionally, the agents testified that, because of the large amount of noise coming
from neighboring properties reconstructing after the hurricane, they reasoned that any occu-
pants of the Cooke residence would have been unable to hear knocks on or announcements
from the outer barn door.
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the police entered it without a warrant. Id. at 571. As here, the court in Thomas
determined that the first two Dunn factors weighed in favor of the defendants,
the latter two in favor of the government. Id. We ruled in favor of the govern-
ment based on the district court’s finding that, because the gate had no bell or
knocker, “it was certainly reasonable for the officers to believe the front door was
readily accessible to the general public; and it was the principal means of access
to the dwelling.” Id. at 571-72 (internal quotation marks omitted).
Similarly, the outside barn doors of Cooke’s residence had no bell or
knocker. Although a security camera monitored the outside of the building, the
officers, even if they had seen the camera, had no reason to believe that someone
inside the residence was constantly watching the video feed such that they
would be aware of the officers’ desire to speak and enter. In congruence with
these facts, the district court described the area as a “covered porch,” a finding
that, based on the evidence, is not clearly erroneous.
Accordingly, as in Thomas, members of the public would reasonably
believe they had to enter the first threshold of the building to knock on the inter-
ior set of doors to obtain the attention of the residents and access the dwelling.
The space entered by the police without consent or a warrant was thus not one
that “harbors the intimate activity associated with the sanctity of a man’s home
and the privacies of life.” Dunn, 480 U.S. at 300 (internal quotation marks and
citations omitted). These findings, coupled with the fact that we view the evi-
dence in the light most favorable to the government, lead us to conclude that the
area inside the first set of barn doors but outside the interior doors was not part
of the curtilage, so the police did not violate Cooke’s Fourth Amendment rights
by entering the area without consent or a warrant.
Alternatively, even if the officers had unlawfully entered the curtilage, any
such violation was attenuated by Ima’s voluntary consent, which broke the chain
of causation between the alleged violation and discovery of the evidence. See
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Brown v. Illinois, 422 U.S. 590, 603-04 (1975); United States v. Miller, 146 F.3d
274, 279 (5th Cir. 1998). Although the taint of violation was not cured by a long
passage of time between Ima’s consent and the alleged violation or by other
intervening circumstances, see United States v. Chavez-Villarreal, 3 F.3d 124,
128 (5th Cir. 1993), those facts alone are not dispositive in a Brown analysis, see
United States v. Sheppard, 901 F.2d 1230, 1235 (5th Cir. 1990).
Rather, what is most important in determining whether the violation was
attenuated is “the purpose and flagrancy” of the violation that led to the discov-
ery of the evidence. Brown, 422 U.S. at 604; Sheppard, 901 F.2d at 1235. Given
that the purpose of entering through the barn door was to conduct a “knock and
talk” (a common and legitimate police practice) and that the curtilage issue in
this case is difficult and nuanced, any violation is technical at best and certainly
not flagrant. Nor did the police use coercive or deceptive tactics on Ima or fail
adequately to inform her of her rights in an attempt to take advantage of the
alleged violation. See United States v. Kelley, 981 F.2d 1464, 1471 (5th Cir.
1993); United States v. Richard, 994 F.2d 244, 252 (5th Cir. 1993). Thus, Ima’s
consent attenuated any alleged Fourth Amendment violation in entering
through the outside doors such that the causal chain between the alleged viola-
tion and the discovery of the evidence is broken.3
3
Sheppard is probably most analogous. There, the court addressed a Fourth Amend-
ment claim that arose when a Border Patrol checkpoint agent leaned his head into a car win-
dow to get a good look into the driver’s eyes and, as a result, noticed that the driver’s eyes were
bloodshot and smelt burnt marihuana in the car. The defendant later consented to a search
of the car. In determining that Sheppard’s consent broke the causal chain of any possible vio-
lation committed by the officer’s sticking his head through the window, this court stated:
While not determining whether the challenged conduct constituted an illegal
search, we conclude that the brief intrusion into the Cadillac to establish eye
contact with its occupants to gauge the veracity or evasiveness of their
responses to citizenship inquiries was not at all flagrant, but was at worst a
most minor and technical invasion of Sheppard’s rights. Even though the time
span between the challenged conduct and Sheppard’s consent was short, we
(continued...)
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IV.
The question remains, however, whether Ima’s consent to entry was valid
or instead was vitiated by Cooke’s express refusal to consent while he was in jail
in another county. Cooke argues that under Georgia v. Randolph, 547 U.S. 103
(2006), the warrantless search was invalid because Ima’s consent is trumped by
his refusal to consent. In Randolph, the Court addressed a suppression claim
where an estranged wife gave consent to search the marital home for drugs after
the defendant, who was also present at the door, refused consent. The Court
held that, although co-tenants generally have the ability to consent to search, “a
physically present inhabitant’s express refusal of consent to a police search is
dispositive as to him, regardless of the consent of a fellow occupant.” Id. at
122-23. Cooke asks this court to extend Randolph to his situation, where a phys-
ically absent tenant refuses to give consent while a physically present cotenant
grants consent.
The Court in Randolph arrived at this rule by examining the “widely
shared social expectations” that inform a Fourth Amendment “reasonableness”
analysis. Id. at 111. Thus, the Court explained,
[Cotenants] understand that any one of them may admit visitors,
with the consequence that a guest obnoxious to one may neverthe-
less be admitted in his absence by another. As Matlock put it,
shared tenancy is understood to include an “assumption of risk,” on
which police officers are entitled to rely . . . . [But] 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 rea-
son to enter when a fellow tenant stood there saying, “stay out.”
3
(...continued)
cannot find that the second search resulted from the exploitation of the chal-
lenged conduct. Sheppard’s voluntary consent to the search of the Cadillac
served to attenuate the connection between the alleged misconduct and the
discovery of the contraband.
Sheppard, 901 F.2d at 1235 (footnotes omitted).
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Without some very good reason, no sensible person would go inside
under those conditions. . . . In sum, there is no common understand-
ing that one co-tenant generally has a right or authority to prevail
over the express wishes of another, whether the issue is the color of
the curtains or invitations to outsiders.
Id. at 111-14.
The Court also took pains to distinguish its two principal cases upholding
searches based on a cotenant’s consent. In United States v. Matlock, 415 U.S.
164 (1974), the defendant was arrested in the front yard of the house in which
he lived and was detained in a squad car nearby. A cotenant granted permission
to search, and the Court upheld the constitutionality of that search. Similarly,
in Illinois v. Rodriguez, 497 U.S. 177 (1990), the Court upheld a search of the
defendant’s residence when his cotenant consented and he was asleep in a
nearby room. The Randolph Court, 547 U.S. at 121, explained that the “custom-
ary social understanding” is that entrance into a home is generally permitted
when invited by a cotenant even if there is an absent, nonconsenting resident,
but a cotenant’s authority to consent is not powerful enough to prevail over the
objection of a physically present fellow tenant. Nor did the police have a duty
to head over to the squad car to ask Matlock for his consent or rouse Rodriguez
from his slumber to give him the opportunity to object. Id.
The Court thus expressly preserved Matlock and Rodriguez, “drawing a
fine line”: “[I]f a potential defendant with self-interest in objecting is in fact at
the door and objects, the co-tenant’s permission does not suffice for a reasonable
search, whereas the potential objector, nearby but not invited to take part in the
threshold colloquy, loses out.” Id. This rule, the Court explained, recognizes
“the co-tenant’s permission when there is no fellow occupant on hand, [but]
accord[s] dispositive weight to the fellow occupant’s contrary indication when he
expresses it.” Id. at 121-22.
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In contrast to the defendant in Randolph, Cooke was not a “present and
objecting” cotenant but rather was many miles away from his home in jail when
he objected to the search. Neither the Supreme Court nor this court has directly
addressed the situation of whether an absent defendant’s objection vitiates the
consent of a physically present cotenant. Several sister circuits, however, have
spoken: The Seventh and Eighth Circuits have permitted searches under simi-
lar circumstances; the Ninth Circuit has invalidated such searches.
The Eighth Circuit squarely addressed the question of Randolph’s appli-
cability to an absent, objecting cotenant in United States v. Hudspeth, 518 F.3d
954 (8th Cir. 2008) (en banc). Hudspeth, who had been arrested after child por-
nography was found on his work computer, refused to consent to a search of his
home computer. When officers arrived at his house, Hudspeth’s wife (who was
unaware of his refusal) consented to the search of their home computer, which
uncovered more child pornography and surreptitiously-taken videos of his naked
stepdaughter.
In upholding the legality of the search, the Eighth Circuit ruled that Ran-
dolph was not applicable, because the Randolph Court consistently and repeat-
edly noted that what distinguished Randolph from cases such as Matlock and
Rodriguez was “Randolph’s physical presence and immediate objection to Mrs.
Randolph’s consent.” Id. at 959. Randolph was a narrow exception to the gen-
eral Matlock rule permitting cotenant consent, relevant only as to physically
present objectors. Id. at 959, 960-61. When officers are invited in by a physi-
cally present tenant, no “social custom” would counsel not to enter, even if an
absent cotenant had previously refused admittance, because “the absent,
expressly objecting co-inhabitant has ‘assumed the risk’ that another co-
inhabitant ‘might permit the common area to be searched.’” Id. at 960-61 (quot-
ing Matlock, 415 U.S. at 171 n.7). Thus, under the totality of the circumstances,
the Eighth Circuit ruled that the search of Hudspeth’s computer was reasonable.
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Id. at 961.
The Seventh Circuit addressed a similar situation in United States v. Reed,
539 F.3d 595 (7th Cir. 2008), and also concluded that Randolph was inapposite
because it was a narrow decision that applies only where a cotenant is present
and objecting or is arrested for the purpose of removing the defendant from the
area to prevent any effective objection to search. Id. at 598-99. The Seventh Cir-
cuit faced a different situation that posed an arguably closer question in United
States v. Henderson, 536 F.3d 776 (7th Cir. 2008), in which the defendant force-
fully ordered officers out of his house and was then arrested for domestic battery,
after which the officers received consent from his wife to search for drugs. Nev-
ertheless, the court upheld the search because “Randolph left the bulk of third-
party consent law in place; its holding applies only when the defendant is both
present and objects to the search of his home.” Id. at 777.
In arriving at this narrow interpretation of Randolph, the Seventh Circuit
noted that Justice Breyer, who provided a fifth vote in Randolph and wrote a
concurrence, intimated that, had Randolph not been physically present, the
result would have changed significantly, and thus “Justice Breyer’s concurrence
declared the outer limits of the Court’s holding: ‘The Court’s opinion does not
apply where the objector is not present and objecting.’” Id. at 781 (quoting Ran-
dolph, 547 U.S. at 126 (Breyer, J., concurring)). Agreeing with the Eighth Cir-
cuit, the court also noted that beyond the mere textual terms of Randolph, this
result is supported by Randolph’s societal expectations rationale: “[The absent
tenant’s] objection loses its force because he is not there to enforce it, or perhaps
. . . because the affront to his authority to assert or waive his privacy interest is
no longer an issue.” Id. at 783-84. Finally, the court reasoned that the opposite
result would mean that “a one-time objection by one is sufficient to permanently
disable the other from ever validly consenting to a search of their shared prem-
ises.” Id. at 783.
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In contrast, the Ninth Circuit has invalidated, under Randolph, warrant-
less searches where an absent cotenant objects. In United States v. Murphy, 516
F.3d 1117 (9th Cir. 2008), Murphy was allowed to live in storage units rented by
Roper. Police, after observing the manufacture of methamphetamine in plain
view, arrested Murphy and asked for his consent to search the storage unit,
which he refused. Consent was later obtained from Roper. Id. at 1119-20.
The Ninth Circuit invalidated the search and held that “when a co-tenant
objects to a search and another party with common authority subsequently gives
consent to that search in the absence of the first co-tenant the search is invalid
as to the objecting co-tenant.” Id. at 1124. If, under Randolph, 547 U.S. at 121,
suspects cannot be removed from the scene for the purpose of preventing an
objection to a search, then “surely they cannot arrest a co-tenant and then seek
to ignore an objection he has already made.” Murphy, 516 F.3d at 1124-25. Find-
ing no reason not to extend Randolph even more broadly (but also not providing
an affirmative reason to extend it), the court also refused to “limit the Randolph
rule to an objecting tenant’s removal by police.” Id. at 1125. Thus, “[o]nce a co-
tenant has registered his objection, his refusal to grant consent remains effective
barring some objective manifestation that he has changed his position and no
longer objects.” Id.
We agree with the Seventh and Eighth Circuits that the objection of an
absent cotenant does not vitiate the consent of a physically present cotenant
under Randolph. First, as both courts noted, Randolph self-consciously empha-
sized the importance of Randolph’s presence by repeatedly noting it when declar-
ing and reiterating the holding. See Randolph, 547 U.S. at 106, 114, 121, 122,
123. Justice Breyer’s concurrence confirms the importance of physical presence.
Id. at 126 (Breyer, J., concurring). Second, the Randolph Court seemed to have
structured the holding as an exception to the general rule of Rodriguez and Mat-
lock that a cotenant may consent to the search of a residence, id. at 106, and that
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this exception was narrowly drawn along a “fine line.” Id. at 121-22. Third,
although it is a close question, social convention normally allows for a visitor to
feel invited into a home when invited by a physically-present resident, even if an
absent cotenant objects to it, rather than the visitor’s assuming he is verboten
forever until the objector consents.4
In sum, Randolph applies only to searches conducted in the face of a pres-
ent and objecting cotenant. The district court did not err in denying Cooke’s
motion to suppress. Cooke’s conviction and sentence are AFFIRMED.
4
Indeed, there is an “assumption of risk” of odious persons inside the home when one
chooses to live with another and, at times, leave the residence. Randolph, 547 U.S. at 111
(“[Cotenants] understand that any one of them may admit visitors, with the consequence that
a guest obnoxious to one may nevertheless be admitted in his absence by another.”).
14