Submitted: May 17, 2016
from United States District Court for the District of
Nebraska - Omaha
WOLLMAN, LOKEN, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
W. Rodriguez was charged with possession of a machinegun and
unlawful possession of an assault rifle. The district court
suppressed evidence gained after police entered his residence
without a warrant. See United States v. Rodriguez,
2015 WL 4546751 (D. Neb. July 28, 2015). The government
appeals. Having jurisdiction under 18 U.S.C. § 3731,
this court reverses and remands.
2014, Nebraska Narcotics Investigator Richard Lutter surveyed
Rodriguez's house. He saw several items suggesting
Rodriguez was growing marijuana: potting plants in the back
of his vehicle, carbon dioxide canisters inside the open
garage door, and several 55-gallon plastic barrels. Lutter
checked Rodriguez's background, finding drug and firearm
convictions. Lutter subpoenaed his utility records, which
showed usage many times higher than comparable residences in
the area. In early December, another officer stopped
Rodriguez for a traffic violation, and told Lutter that his
vehicle smelled of marijuana (but the officer searched and
found no contraband).
believed he did not yet have probable cause for a search
warrant. On December 18, Lutter and four other officers
gathered near Rodriguez's residence for a "knock and
talk." Lutter and another officer, in plain clothes,
walked onto Rodriguez's front steps. Lutter's body
camera was recording.
house had an inner front door and an outer screen door.
Lutter opened the screen door, knocked on the front door, and
let the screen door close. Rodriguez opened both doors,
closed the inner door, and stepped onto the front steps.
Lutter immediately smelled marijuana.
introduced himself as an investigator with the Nebraska State
Patrol, said he had a "couple quick questions, "
and asked Rodriguez if they could "step in and talk real
quick" because the neighbors were outside. Rodriguez
replied he would "like to ask what it's about
first." Lutter said he was "conducting an
investigation that's possibly related to the
manufacturing of marijuana" and "would like to ask
a couple quick questions about it." Lutter added
"If there's nothing going on, there's no
problems or anything like that, we're out of here,
we're out of your hair." Rodriguez did not verbally
respond to Lutter's comments, but immediately turned and
entered the house. Lutter followed him inside. Rodriguez did
not say anything as they entered the house.
inside, Lutter detected the "overwhelming" smell of
marijuana. The other four officers also entered. Lutter told
Rodriguez and his girlfriend to sit at the dining-room table
while the other officers conducted a sweep "to make sure
there's nobody else in the residence." While the
officers swept the house, Lutter told Rodriguez he did not
yet have enough evidence to charge him, "had enough to
secure a search warrant for the residence, " and would
apply for it as soon as the other officers secured the house.
the sweep, one officer saw marijuana plants, bags of
marijuana, a pipe, and an AK-47. Leaving Rodriguez and his
girlfriend with the other officers, Lutter went and got a
search warrant. Officers then seized more than 20 firearms,
including a machinegun, and evidence of a marijuana-growing
jury charged Rodriguez with knowingly possessing a
machinegun, in violation of 18 U.S.C. §§ 922(o) and
924(a)(2), and being an unlawful user and addict in
possession of an assault rifle, in violation of 18 U.S.C.
§ 922(g)(3). He moved to suppress the seized evidence,
arguing he did not consent to the officers' warrantless
entry and there was no lawful justification for the
protective sweep. The magistrate judge recommended denying
the motion to suppress, finding, after viewing the
body-camera video, that Rodriguez voluntarily consented to
the officers' entry. The district court rejected the
magistrate judge's findings and suppressed the evidence,
concluding Rodriguez did not consent to the officers'
entry. The government appeals.
a district court's grant of a motion to suppress, this
court reviews factual findings for clear error and
application of law de novo. United States v. Hurt,
376 F.3d 789, 791 (8th Cir. 2004). This court is "bound
by the district court's findings of fact regarding the
circumstances of the search unless [it] believe[s] on the
basis of the record as a whole that the district court
clearly erred." United States v. Rowland, 341
F.3d 774, 778 (8th Cir. 2003). This court "may reverse
the district court's ultimate ruling . . . if the ruling
reflects an erroneous view of the applicable law."
Fourth Amendment generally prohibits police from entering a
home without a warrant unless the circumstances fit an
established exception to the warrant requirement."
United States v. Khabeer, 410 F.3d 477, 482-83 (8th
Cir. 2005). Of course, "[a]n individual may validly
consent to an otherwise impermissible search if, in the
totality of the circumstances, consent is freely and
voluntarily given, and not the product of implicit or
explicit coercion." United States v. Rambo, 789
F.2d 1289, 1296 (8th Cir. 1986). "Voluntary consent may
be express or implied." United States v.
Lakoskey, 462 F.3d 965, 973 (8th Cir. 2006). Consent may
be inferred from the defendant's "words, gestures,
or other conduct, " and the ultimate inquiry is not
whether the ...