Page 42 - September October 2020 TPA Journal

authority. finding, we will ordinarily affirm if “any reason-
able view of the evidence supports” the district
Consent to a search does not need to be explicit, court’s decision. This practice assumes, however,
but it can be inferred from silence or failure to that the district court “asked the right legal ques-
object to a search only if that silence follows a tions in making its ruling” and “actually weighed
request for consent. Consent may also be inferred the evidence bearing on the facts needed to answer
from actions that reasonably communicate con- them.” If there is “a basis to question” one of
sent. those assumptions, we may remand instead of
affirming.
The district court concluded that Morrison’s girl-
friend, Shlonda Jupiter, gave implied consent for There is reason to question both assumptions in
two law-enforcement officers, Rohn Bordelon and this case. As to the first assumption, the district
David Biondolillo, to enter her residence. The dis- court erroneously believed, contrary to our prece-
trict court acknowledged that “[t]he officers testi- dent, that Jupiter’s failure to object to the officer-
fied that Jupiter initially opened the door about s’ entry constituted implied consent absent a
half way and then opened it wider and stepped request for consent from the officers. Regarding
aside for them to enter” while Jupiter “testified the second, the district court avoided weighing the
that she opened the door a little and stood between conflicting testimony presented and instead based
the door and the frame, but that she did not open it its decision on matters about which Jupiter and the
wider and step aside to allow the officers in.” The law-enforcement officers agreed. Because the dis-
district court did not decide to credit one version trict court did not make a necessary finding, and
of events over the other; instead, it reasoned that because we are not certain how the district court
Jupiter gave implied consent because “testimony would have ruled if it had addressed the issue, we
of all parties indicates that there was no forced remand for further proceedings.
entry nor antagonistic response” and “Jupiter did
not testify that the officers physically moved her Morrison argues that, even if Jupiter gave implied
out of the way.” consent, it was not given voluntarily, but the dis-
trict court did not clearly err by concluding other-
This reasoning is faulty. The officers did not testi- wise. Voluntariness depends on the totality of the
circumstances, and we have identified six relevant
fy—nor did the district court find—that they
factors:
asked Jupiter for permission to enter, so her failure the voluntariness of the defendant’s custodial sta-
to object does not constitute implied consent. tus; (2) the presence of coercive police proce-
Thus, Jupiter implicitly consented to the officers’ dures; (3) the extent and level of the defendant’s
entry, if at all, by opening the door wider and step-
cooperation with the police; (4) the defendant’s
ping aside, a gesture that could be understood as
awareness of his right to refuse consent; (5) the
communicating consent depending on the sur- defendant’s education and intelligence; and (6)
rounding circumstances. But the district court, the defendant’s belief that no incriminating evi-
while aware of the conflicting testimony on this dence will be found. (EMPHASIS BY ED.)
point, elected not to resolve it.
According to Morrison, the district court erred
The United States asks us to infer that the district in applying the coercive-procedures factor,
court made the requisite finding, i.e., that Jupiter impermissibly shifted the burden of proof to
opened the door wider and stepped back to allow Morrison, and incorrectly analyzed the totality
the officers to enter, but we decline to do so. A dis- of the circumstances.
trict court “must state its essential findings on the We disagree. First, the district court did not clear-
record” if “factual issues are involved in deciding ly err in analyzing the coercion factor. The court
a motion.” Where a district court fails to make a concluded that the knock-and-talk conducted by

38 www.texaspoliceassociation.com • (512) 458-3140 Texas Police Journal