United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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 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
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).
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.
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.”).
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).
Consent to Search
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. 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.
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 ...