Page 59 - TPA Police Officers Guide 2021

. . . .

The jury found all three defendants guilty of possessing a firearm in violation of § 922(g)(1). The jury found Stag-
gers and Session—but not Morrison—guilty of conspiring to distribute and to possess with intent to distribute
heroin and cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A), 846.

. . . . .

We now turn to an issue that is raised by Morrison alone, whether the district court erred by denying his motion
to suppress. “When a district court denies a motion to suppress evidence, we review the factual findings for clear
error and legal conclusions about the constitutionality of the conduct of law enforcement officers de novo.” “Under
the Fourth Amendment, a warrantless search of a person’s home is presumptively unreasonable, and it is the gov-
ernment’s burden to bring the search within an exception to the warrant requirement.” The government does not
need a warrant if it receives: (i) consent; (ii) that is voluntarily given; (iii) by someone with actual or apparent
authority; and (iv) the search does not exceed the scope of the consent received. (EMPHASIS BY ED.)

In challenging the denial of his motion to suppress, Morrison argues that the district court clearly erred when it
evaluated the first, second, and third elements of a consent search. We remand for further proceedings regarding
whether consent was given, but we conclude that the district court did not clearly err regarding voluntariness or
authority.

Consent to a search does not need to be explicit, but it can be inferred from silence or failure to object to a search
only if that silence follows a request for consent. Consent may also be inferred from actions that reasonably com-
municate consent.

The district court concluded that Morrison’s girlfriend, Shlonda Jupiter, gave implied consent for two law-en-
forcement officers, Rohn Bordelon and David Biondolillo, to enter her residence. The district court acknowledged
that “[t]he officers testified that Jupiter initially opened the door about half way and then opened it wider and
stepped aside for them to enter” while Jupiter “testified that she opened the door a little and stood between the door
and the frame, but that she did not open it wider and step aside to allow the officers in.” The district court did not
decide to credit one version of events over the other; instead, it reasoned that Jupiter gave implied consent because
“testimony of all parties indicates that there was no forced entry nor antagonistic response” and “Jupiter did not
testify that the officers physically moved her out of the way.”

This reasoning is faulty. The officers did not testify—nor did the district court find—that they asked Jupiter for
permission to enter, so her failure to object does not constitute implied consent. Thus, Jupiter implicitly consented
to the officers’ entry, if at all, by opening the door wider and stepping aside, a gesture that could be understood as
communicating consent depending on the surrounding circumstances. But the district court, while aware of the
conflicting testimony on this point, elected not to resolve it.

The United States asks us to infer that the district court made the requisite finding, i.e., that Jupiter opened the door
wider and stepped back to allow the officers to enter, but we decline to do so. A district court “must state its es-
sential findings on the record” if “factual issues are involved in deciding a motion.” Where a district court fails
to make a finding, we will ordinarily affirm if “any reasonable view of the evidence supports” the district court’s
decision. This practice assumes, however, that the district court “asked the right legal questions in making its rul-
ing” and “actually weighed the evidence bearing on the facts needed to answer them.” If there is “a basis to ques-
tion” one of those assumptions, we may remand instead of affirming.

There is reason to question both assumptions in this case. As to the first assumption, the district court erroneously
believed, contrary to our precedent, that Jupiter’s failure to object to the officers’ entry constituted implied con-
sent absent a request for consent from the officers. Regarding the second, the district court avoided weighing the
conflicting testimony presented and instead based its decision on matters about which Jupiter and the law-en-
forcement officers agreed. Because the district court did not make a necessary finding, and because we are not cer-

A Peace Officer’s Guide to Texas Law 53 2021 Edition