The opinion of the court was delivered by: Judge Solomon Oliver, Jr.
Defendant Mark Taylor ("Defendant" or "Taylor"), a felon, is charged with possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (Indictment, ECF No. 1.) Now pending before the court is Taylor's Motion to Suppress the gun, ammunition, and any statements allegedly Taylor made while in the custody of state or federal law enforcement officers. (ECF No. 24.) The court held a hearing on Defendant's Motion to Suppress on September 11, 2008. (ECF No. 30.) For the reasons set forth below, the court grants Defendant's Motion.
On March 26, 2008, after receiving information that Taylor might be found at 1154 Melvyn Lane in Elyria, Ohio, members of the Northern Ohio Violent Fugitive Task Force went there to arrest Taylor on an outstanding state warrant. The officers did not have a search warrant for the residence. The officers knocked on the door and were met by Sabrina Arnett ("Arnett"), who lived at the residence. The officers told Arnett they were looking for Taylor. She gave them oral permission to search the apartment for Defendant, though she initially indicated that he was not there. Later, she admitted that he was upstairs. The officers then proceeded upstairs and found Defendant in his underwear in the master bedroom. While upstairs, the officers noticed men's clothing in the spare bedroom. The officers handcuffed Defendant and brought him downstairs, where Arnett was located.
Soon thereafter, the officers maintain that Arnett orally consented to a search of the residence and signed a written consent form. According to Officer Gregory Bartoe ("Bartoe") of the Bureau of Alcohol and Tobacco, Firearms, and Explosives ("ATF"), her consent was given upon Bartoe's request to "search the house for any other stuff, because we had seen a marijuana pipe, and we suspected Taylor might have had some weapons because of his history." Arnett maintains she did not voluntarily consent to the search of her residence because the officers caused her to be afraid that she would be evicted if she did not cooperate. While the parties dispute the voluntariness of Arnett's consent, it is undisputed that the officers did not specifically ask Arnett's permission to search any of Taylor's belongings. The officers' search revealed a handgun and ammunition located in a closed shoe box in the closet of the spare bedroom. The closet contained children's clothing, and the closed shoe box itself was covered with men's clothing. In addition to the handgun and ammunition, the shoe box contained Defendant's jail identification bracelet and rap lyrics signed by "M-Dot."
Only after the search was completed, the officers interviewed Arnett and asked Arnett if anyone lived with her. At that time, Arnett confirmed that Defendant kept his belongings in the spare bedroom where the weapon was found. Arnett stated that the officers never asked if Taylor had given her permission to look at his personal belongings. In fact, Arnett maintains that Taylor never gave her permissionto open the shoe box.
Defendant first maintains that the search was unlawful because Arnett did not voluntarily consent to the officers' search of the residence. The government correctly notes that whether Arnett voluntarily consented to the search is an issue of fact that must be determined by the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). The government must prove by clear and convincing testimony that Arnett's consent was obtained without duress. United States v. Simmons, 202 F. App'x 82, 86 (6th Cir. 2006) (citing United States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999)). Factors that the court must consider in assessing the validity of Arnett's consent include: "the age, intelligence, and education of the individual; whether the individual understands the right to refuse consent; whether the individual understands his constitutional rights; the length and nature of detention; and the use of coercive or punishing conduct by the police." Id.
Here, the court does not find anything remarkable or unusual about Arnett's age, intelligence, or education that would suggest that her consent was not voluntarily given. Additionally, the court credits the testimony of the officers that they did not threaten, promise, or coerce Arnett into giving consent. Finally, it is undisputed that Arnett signed a form consenting to the search of the residence. The form advised her of her right to refuse consent and stated she had not been threatened or promised anything in exchange for that consent. In light of these facts, the court finds that the government has shown by clear and convincing evidence that Arnett voluntarily consented to the search of her residence.
B. Arnett's Authority to Consent to the Search of Taylor's Belongings
Defendant next maintains that, even if Arnett voluntarily consented to the search of her residence, Arnett did not have actual or apparent authority to consent to the search of Taylor's closed shoe box. Both parties maintain that the Sixth Circuit's decision in United States v. Waller, 426 F.3d 838 (6th Cir. 2005), is dispositive in the instant case. After reviewing Waller and United States v. Purcell, 526 F.3d 953, 956 (6th Cir. 2008), a recent Sixth Circuit decision relying upon Waller, the court finds that Arnett did not have actual or apparent authority to consent to the search of Taylor's closed shoe box. Accordingly, Defendant's Motion to Suppress is well-taken, and the court grants Defendant's Motion on this ground.
1, Actual/Common Authority
The government maintains that it had actual/common authority to search the closed shoe box because Arnett consented to the search of her residence, both orally and in writing. As the Sixth Circuit has recognized, "when the government seeks to justify a warrantless search by proof of voluntary consent, in the absence of proof that consent was given by the defendant, it 'may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought ...