United States v. Johnny L. Holmes , 270 F. App'x 767 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 18, 2008
THOMAS K. KAHN
No. 07-12004
CLERK
________________________
D. C. Docket No. 06-00109-CR-BBM-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY L. HOLMES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 18, 2008)
Before HULL and WILSON, Circuit Judges, and EDENFIELD,* District Judge.
PER CURIAM:
*
Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
Johnny L. Holmes, who entered a conditional guilty plea to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g), appeals the district
court’s denial of his motion to suppress evidence found during a search of his
apartment, as well as his motion to suppress subsequent statements to investigators.
After review and oral argument, we vacate the district court’s denial of Holmes’s
motions to suppress and remand the case to the district court for further
consideration of those motions.1
On appeal, Holmes first argues that the district court erred in denying his
motions to suppress because the police had no reasonable suspicion to go to and be
at his apartment at all and he was illegally seized before he consented to the search.
We reject this claim and conclude that Holmes has not established an illegal
seizure. The evidence, among other things, showed that the officers received a
credible tip that a person they were looking for, named Taboris Clemmons, might
be hiding in Holmes’s apartment. That information came from a woman who lived
with Clemmons and reported him to the police for having threatened her juvenile
daughter. She also told the officers that Clemmons was armed and a member of a
1
“A district court’s ruling on a motion to suppress presents a mixed question of law and
fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999). We accept the district
court’s factual findings as true unless the findings are shown to be clearly erroneous. Id. All
facts are construed in the light most favorable to the prevailing party below. United States v.
Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). The district court’s application of the law to the
facts is reviewed de novo. Zapata, 180 F.3d at 1240.
2
street gang. The officers knocked loudly on the door of Holmes’s apartment, and
Holmes eventually opened the door. Holmes faced the officers, who had weapons
drawn. One officer knew what Clemmons looked like, knew Holmes was not
Clemmons, and quickly told the other officers. Once the officers understood that
Holmes was not Clemmons, they lowered or reholstered their firearms. One
officer directed Holmes to step outside the door and put his hand on Holmes as he
led him out of the apartment into the hallway. The officers then asked Holmes for
permission to search the apartment. Holmes consented, and the officers discovered
a firearm in plain sight inside.
Viewed in the light most favorable to the government, the police had
reasonable suspicion to believe that the man they were looking for was at Holmes’s
apartment, and there was no illegal seizure of Holmes in his doorway. The
detention was very brief, and with the facts viewed in the light most favorable to
the government, the seizure was reasonable under the circumstances.
Holmes next argues that the district court erred in denying his motions to
suppress because the district court, in evaluating whether his consent to search the
apartment was voluntary, erroneously failed to consider his custodial status at the
time he gave consent. “Searches conducted by means of consent are valid so long
as the consent is voluntary.” United States v. Kapperman, 764 F.2d 786, 793 (11th
3
Cir. 1985). Here, Holmes does not dispute that he gave consent to search his
home; he only disputes whether his consent was voluntary.
“Whether an individual’s consent to a warrantless search was given
voluntarily is a question of fact that must be decided in light of the totality of the
circumstances.” United States v. Gonzalez, 71 F.3d 819, 828 (11th Cir. 1996).
Relevant factors in determining voluntariness, none of which is dispositive,
include: (1) the voluntariness of the defendant’s custodial status; (2) the presence
of coercive police procedure; (3) the extent and level of the defendant’s
cooperation with police; (4) the defendant’s awareness of his right to refuse to
consent to the search; (5) the defendant’s education and intelligence; and (6) the
defendant’s belief that no incriminating evidence will be found. United States v.
Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984), reinstated on reh’g, 764 F.2d 747
(11th Cir. 1985) (en banc). “While knowledge of the right to refuse consent is one
factor to be taken into account, the government need not establish such knowledge
as the sine qua non of an effective consent.” Schneckloth v. Bustamonte, 412 U.S.
218, 227, 93 S. Ct. 2041, 2048 (1973). “The government bears the burden of
proving . . . that the consent was not a function of acquiescence to a claim of lawful
authority but rather was given freely and voluntarily.” United States v. Hidalgo, 7
F.3d 1566, 1571 (11th Cir. 1993).
4
As to the voluntariness of Holmes’s consent, the district court properly listed
and considered factors (2) through (6) noted above. However, the district court
concluded that factor (1) was relevant only in cases involving consent to search
public areas and not relevant to a search of one’s home, and thus the district court
did not consider this factor. In this regard, the district court erred, because factor
(1) is relevant, and the totality of the circumstances surrounding the consent should
be considered. See United States v. Ramirez-Chilel, 289 F.3d 744, 752-53 (11th
Cir. 2002); Gonzalez, 71 F.3d at 829; United States v. Garcia, 890 F.2d 355, 361-
62 (11th Cir. 1989); see also United States v. Espinosa-Orlando, 704 F.2d 507, 513
(11th Cir. 1983).
Because the district court failed to consider one of the relevant factors, and
the district court heard the evidence from the Clayton County officers, we conclude
that the district court is in the best position to make findings about that factor and
then consider it, along with the other factors noted above, in evaluating the totality
of the circumstances here.2
Accordingly, we vacate the district court’s denial of the motions to suppress
and remand the case to the district court for further consideration of whether, in
light of the totality of the circumstances, Holmes voluntarily consented to the
2
Nothing herein is meant to suggest that the district court must change its ruling on the
motions to suppress.
5
search of his apartment.
VACATED AND REMANDED.
6