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United States v. Hill

United States District Court, S.D. Georgia, Savannah Division

April 1, 2019

UNITED STATES OF AMERICA
v.
DESMOND HILL, Defendant.

          REPORT AND RECOMMENDATION

          CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.

         Desmond Hill was arrested on assorted drug and weapons violations on December 1, 2017, after law enforcement searched his apartment. Part of the Savannah-Chatham Counter Narcotics Team (CNT) search was performed without a warrant, after they knocked on the door and Hill permitted them to enter his residence. Later, they secured a warrant to search the home. Hill challenges the initial warrantless search, seeking to suppress evidence seized from the apartment because the initial search was done without his consent or, in the alternative, the scope of any consent he gave was greatly exceeded by CNT agents during their rummaging. Doc. 32. The Government opposes. Doc. 33. An evidentiary hearing was held on March 6, 2019, at which CNT Agent Otilio Rivera testified, bodycamera footage of the search was reviewed, and a video recording of Rivera's search warrant application to the state court magistrate was also reviewed. See doc. 37 (admitting Government's Exh. 1 (bodycamera video) and defense exhibit 1 (warrant application video). The matter was then taken under advisement.

         A. BACKGROUND[1]

         Hill's factual recitation refers to the affidavit and application for search warrant prepared by Agent Rivera, the veracity of which is unchallenged by defendant. Government Exh. 3 at 3-5; see also doc. 32, Exh. A. The affidavit explains that the Savannah Police Department had received “numerous drug complaints” about Hill's residence, advising that numerous vehicles were observed coming to and leaving from the apartment so their occupants could purchase narcotics and, sometimes, use the narcotics in the parking lot. Exh. 3 at 3. Prostitutes were also suspected to work out of his apartment. Id. On December 1, 2017, a call complaining of “a strong odor of marijuana” emanating from the apartment prompted Rivera to execute a “knock and talk” at the apartment. Id. at 4.

         Upon arrival, Rivera too detected “a strong odor of marijuana” which he recognized “based on [his] training and experience.” Gov't Exh. 3 at 4. When Rivera knocked on the door, a young male answered and, after informing Rivera that Hill was not at home, slammed the door in his face. Id. As Rivera began walking away, Hill then exited the apartment and spoke with Rivera about “the recent drug complaints, the odor of marijuana coming from inside the residence and [his guest's] behavior.” Id. Hill admitted he had smoked marijuana a few hours earlier. Id.; see also Gov't Exh. 1 at 19:22:10. A canine contemporaneously conducting a free air search on Hill's vehicle alerted for the presence of narcotics. Id. Based on all these factors, Rivera sought - and state Magistrate Michael Barker approved - a warrant to search the residence and vehicle for narcotics. Id. at 1-4; see also doc. 32, Exh. B.

         The bodycamera footage, which was admitted into evidence and also relied upon, unchallenged, by both parties, fills in the gaps left by the warrant application. When Hill first spoke with Rivera, Rivera told him that he wanted to “just look around and make sure there's nothing illegal in the apartment.” Gov't Exh. 1[2] at 19:22:10-14. Rivera assured Hill that if his worries were assuaged that he would “get out of here” and leave Hill to his day. Id. at 19:22:10:14. After learning that Rivera was there to search for marijuana, Hill affirmed that he was willing to go through “whatever” he “ha[d] to go through” to get Rivera on his way and repeatedly denied that there was marijuana inside the apartment. Id. at 19:23:17-19, 19:23:52. Rivera assured Hill “nobody's in any trouble” and offered that if he found nothing “illegal” in the apartment, he would “walk [expletive omitted] out.” Id. at 19:23:04-14. Hill went inside the apartment, alone, to lock up his dogs, id. at 19:24:01-19:25:20, and then asked his family members to exit the apartment and escorted the agents inside, id. at 19:25:20-55.

         As they entered the residence, Hill led Rivera directly to his bedroom and sat calmly as Rivera rifled through his belongings. Gov't Exh. 1 at 19:25:56-26:05. Rivera kept talking, keeping the tone conversational and light as he poked around. See, e.g., Id. at 19:26:20- 39:33. Even when he saw a baggie of marijuana laying in plain sight on a pile of clothes, or opened a black baggie containing white powder and lighters, Rivera soldiered on with conversation and the search. Id. at 19:26:30 & 19:28:45. Hill did not stop him or question the scope of the search - indeed, more than once Hill spoke up to offer that items could be moved around to better search or others areas could be searched. E.g., Id. at 19:26:50-55 (“You can pull that back”); 19:29:13-14 (“Is there anywhere else you wanna look?”); 19:30:45 (informing Rivera that a firearm was hidden under the mattress); 19:38:40-44 (“You can pull out that stuff back there” from behind the television); 19:40:30-35 (opening a closed door, “Y'all want to look in here?” and encouraging officers to look).

         Eventually, Hill objected that it had “been awhile” and that Rivera was “messing with [him], ” apparently remarking on the oddity of such a search if he wasn't “in trouble.” Gov't Exh. 1 at 19:36:12-18. Hill's discomfort with the situation reached a tipping point when Rivera asked him to memorialize his consent to the search in writing, though he clearly had affirmed that consent had been given. See, e.g., id. at 19:45:01-12 (Hill: “What's this paperwork he going to get?” Agent: “So, remember when we talked to you out front and you're like you can let us come in and search real quick?” Hill: “I mean, I did, ‘cause I felt like I was forced to because I don't want it to seem like I'm doing nothing.”); 19:49:03-08 (Rivera: “I was going to explain what this is. You remember how you gave me consent to go ahead and search your house verbally?” Hill: “Yes I did. I did that.”); 19:49:40 (mentioning for the first time his objection that agents had “no warrant”); 19:54:50-54 (“I let y'all look. What else do I gotta do?”); 19:55:52-56, 19:56:50-56 (“Y'all ain't have no warrant and I let y'all search and what else do I gotta do. . . . I ain't got nothing to hide. Y'all looked through my room, the bathroom, the kitchen, the back room, like what else do you gotta do?”). Belatedly, the wheels began turning as Hill objected that he felt like the search had “gone too far.” Id. at 19:55:00-02.

         Given Hill's refusal to sign the written consent to search, Rivera went outside (apparently) to draft and submit the warrant application. He then spoke with the state magistrate, who determined there was sufficient probable cause set forth within the warrant application to grant the search of Hill's residence and vehicle. Defense Exh. 1. Even later, however, Hill again affirmed he had given permission to the agents to search. See Gov't Exh. 1 at 20:18:00-19:40 (expressing his objection to agents' continued presence in his home after he allowed them to search); id. at 20:20:50-54 (“I told them to go ahead and look and I let ‘em look.”).

         II. ANALYSIS

         The Fourth Amendment protects “[t]he right of the people to be secure against unreasonable searches and seizures.” U.S. Const. Amend. IV. Governmental intrusions into private dwellings without a warrant supported by probable cause are prohibited, subject only to a few carefully delineated exceptions. Katz v. United States, 389 U.S. 347, 357 (1967); United States v. Prevo, 435 F.3d 1343, 1345 (11th Cir. 2006). Voluntary consent provides one such exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). “To be considered voluntary, consent must be the product of an essentially free and unconstrained choice.” United States v. Zapata, 180 F.3d 1237, 1241 (11th Cir. 1999) (quotes and cite omitted); see Culombe v. Conn., 367 U.S. 568, 602 (1961). Consent is not voluntary if it is merely “a function of acquiescence to a claim of lawful authority. . . .” United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989).

         A. Consent to Search

         Hill raises several arguments that his consent to the search was not voluntary. First, he contends that he did not give consent to the search of his residence, but instead “meekly” “acquiesced” to the agents' authority. Doc. 32 at 1, 8-11. Though he appears to concede that the initial “knock and talk” was permissible, Hill argues that any consent he gave was effectively involuntary. Id. But the bodycamera footage and Rivera's credible testimony dispute Hill's characterization. Hill was not under arrest, was not restrained, was not personally searched, and appeared at ease throughout the search as he actively cooperated. Agents did not demand entry to his home or display their weapons in a show of force or authority. No. physical coercion, threats, promises, or misrepresentations that agents already had authority to search the premises were made.[3] See Schneckloth, 412 U.S. at 225-27 (“whether a consent to a search was in fact ‘voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances.”); United States v. Simms, 385 F.3d 1347, 1355 (11th Cir. 2004); United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001) (“In assessing voluntariness, the inquiry is factual and depends on the totality of the circumstances. . . . the court should look at several indicators, including the presence of coercive police procedures, the extent of the defendant's cooperation with the officer, the defendant's awareness of his right to refuse consent, the defendant's education and intelligence, and the defendant's belief that no incriminating evidence will be found.”); United States v. Garcia, 890 F.2d 355, 360 (11th Cir. 1989). Here, Hill cooperated with Rivera until drugs and several firearms had been uncovered, knew he had the right to refuse consent, as indicated by his later refusal to sign a written consent to search form, and does not argue that he was uneducated or unintelligent. See United States v. Maddox, 316 Fed.Appx. 908, 913-14 (11th Cir. 2009). Under these circumstances, the Court should conclude that his consent was voluntary.

         Certainly, nobody told Hill that he could refuse to allow agents to search. Such a warning, however, is not required. See United States v. Drayton, 536 U.S. 194, 206 (2002) (unambiguously “reject[ing] in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search” and collecting cases); c.f. Schneckloth, 412 U.S. at 241 (while a consent to search must be voluntary, it need not be “an intentional relinquishment or abandonment of a known right or privilege”). “Although [Rivera] did not inform [Hill] of [his] right to refuse the search, he did request permission to search, and the totality of the circumstances indicates that [Hill's] consent was voluntary, so the search[ ] w[as] reasonable.” Drayton, 536 U.S. at 207. In other words, Hill's consent to the search was voluntarily given and his later regret (and refusal to then sign a written ...


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