United States v. Richard Jones, Jr.

KENNEDY, Circuit Judge,

dissenting.

Contrary to the majority, I believe that the facts available to Officer Gilreath at the time he asked permission to step into the foyer of Jones’ home were such as to warrant a reasonable belief that Teasley had sufficient authority over the premises to consent to Gilreath’s entry for the purpose of continuing the conversation with Teasley, even in light of Jones’ prior denial of consent to search the residence. Accordingly, I respectfully dissent.

When reviewing the denial of a motion to suppress, this Court reviews the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Taylor, 248 F.3d 506, 511 (6th Cir.2001). I disagree with the majority that the record supports a finding that Officer Gilreath knew that Teasley was a hired handyman when he knocked on the front door of the house, questioned Teas-ley briefly, asked to step inside, and Teas-ley responded “sure” to Gilreath’s request to enter.

Officers Gilreath and Kingbury conducted surveillance of Jones’ home on the day of, but prior to, Jones’ arrest. Gilreath testified that he observed a white male working on a car in Jones’ driveway and a black male féeding a couple of dogs on a sereened-in back porch. Gilreath testified that the black male he observed could have been Teasley. Gilreath also testified that “[tjhere was a lot of activity in and around the house, with people coming and going.”

When Agent Fisher asked Jones if he could search Jones’ residence, he also asked who was at the residence. According to Fisher, Jones replied that “family members were back at the residence.” Fisher then conferred with Officers Gil-reath and Kingsbury, who were present at the arrest scene, as to whether the officers should go to Jones’ residence and try to identify some of the people who had been observed at the residence earlier in the day.

When the officers arrived at Jones’ residence, Agent Fisher hung back near the street to maintain a clear view toward the *533back of the residence to protect Officers Gilreath and Kingsbury’s safety as they went up and knocked on the door. The officers were concerned about the large dogs, which included some rottweilers, they had seen earlier. Fisher remained in this position for “short period of time” before approaching the front porch himself.

Officer Gilreath testified that a black male responded to his knock on the door. Officer Gilreath’s testimony as to the substance of his conversation with the black male is as follows:

[W]hen he came to the door I identified myself. I showed him my badge and my ID and I asked him who he was. He told me James Teasley and he seemed kind of nervous. I asked him, well, Mr. Teasley, what are you doing here and he said cleaning up. I said, Mr. Teasley, I said, you are a little nervous, you don’t have any warrants or anything on you, do you, and he says, well, I don’t know. I said, well, either yes or no and he says, I don’t know. I said, is that a maybe? He says, maybe. I said, well, can I talk to you for a minute? Can I come in and talk to you? He says, sure. He steps back and I step directly inside the door.

The district court credited Gilreath’s testimony that Teasley responded “sure,” giving express permission to enter the foyer.

At the moment Officer Gilreath was given permission to enter Jones’ dwelling, he knew that Jones had claimed that “family members” were at his home, that Teasley resembled the man Gilreath had observed feeding dogs on the back , porch earlier in the day, and that Teasley, who was standing with a mop and bucket, had explained that he was cleaning up, when asked to explain his presence. Under these circumstances, a reasonably cautious officer could reasonably assume that Teasley was a member of the household1 and, as such, had- the authority to at least consent to Officer Gilreath’s entry into the residence for the purpose of completing the conversation. This Circuit has held that in applying the test to determine whether a consent to entry was valid, the actual relationship between the consenter and owner is not critical; rather, it is how the relationship would appear to the officer that is critical. United States v. Jenkins, 92 F.3d 430, 436 (6th Cir.1996). Unless Teasley provided Officer Gilreath with additional information that would, have altered the default assumption that the consenter has authority over the property, a reasonable officer may assume that someone who comes to the door after the knock has authority to consent to police entry into the dwelling. Id. at 437.

Only Agent Fisher testified that Teasley “was there to clean the house. He was kind of like a hired individual.” Officer Gilreath did not testify that Teasley identified himself as a person hired to clean the house or that he otherwise was aware that Teasley was hired help. It is clear that Fisher was not present on the porch when Teasley said he was “cleaning up.” Fisher’s testimony as to Teasley’s employment status should not be credited in determining what Gilreath knew when he acted on Teasley’s consent to enter. While Fisher refers to Teasley as a handyman, the basis for this conclusion is not established. Family members also can, and do, “clean up.”

The fact that Jones had denied the officers’ request to search his residence does not alter the analysis. As the majority observes, an individual with an equal interest in the residence, such as a domestic member of the household, could have the authority to permit the police to enter the residence, despite Jones’ prior denial. The majority relies solely on the entry to *534find that all the evidence obtained after entry, including the proceeds of the search warrant, should be suppressed. Yet the entry was not a search and no observation of criminal conduct was made upon entering. The majority does not contend that Diekason, known to Gilreath as an overnight guest for at least two days, could not consent to the entry of Dickason’s bedroom. As an overnight guest, Diekason had authority to permit Gilreath to go the bedroom to get Dickason’s identification. There Gilreath observed the gun in plain view, which provided the information used to secure the search warrant.2 While. I agree that Gilreath’s entry is not isolated from Fourth Amendment analyses, I would hold that each step of the officers’ conduct was reasonable under the circumstances. I would, therefore, affirm the district court order denying the motion to suppress and affirm the conviction.

. Jones is black as was the female with him at the time of his arrest.

. Officer Gilreath recognized the gun as contraband because Jones had just been arrested on an outstanding warrant for possession of a firearm by a convicted felon and, prior to the officer's entry into the bedroom, Diekason had admitted to Gilreath that he had spent time in prison.