United States District Court, S.D. Ohio, Western Division
OPINION & ORDER
MICHAEL R. BARRETT, JUDGE
matter before the Court upon Defendant Alon Russell's
Motion for Reconsideration. (Doc. 40). The United States has
filed a Response in Opposition. (Doc. 45). On May 14, 2019, a
hearing was held on the Motion for Reconsideration.
United States has brought one count against Defendant:
possession of a firearm by a prohibited person in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 18 U.S.C.
§ 2. Defendant moved to suppress evidence obtained in a
search of the garage of a house on Darbyshire Road in
Wilmington, Ohio. Defendant was living in the garage at the
time of the search. This Court denied Defendant's Motion
to Suppress. (Doc. 29). The factual background was previously
set forth more fully in the Court's Order on the Motion
to Suppress; and therefore the same shall not be repeated
argues that the Court erred in finding there was voluntary
consent to search provided by someone with actual or apparent
Motion for reconsideration
Federal Rules of Criminal Procedure do not provide for a
motion to reconsider. United States v. Hopewell, No.
1:08-cr-65, 2009 WL 1026452, at *1 (S.D. Ohio Apr. 15, 2009).
Instead, “[c]ourts adjudicating such motions in
criminal cases typically evaluate such motions under the same
standards applicable to a civil motion to alter or amend
judgment pursuant to Fed.R.Civ.P. 59(e).” Id.
(quoting United States v. Jarnigan, No. 3:08-CR-7,
2008 WL 5248172, at *2 (E.D. Tenn. Dec. 17, 2008)). There are
three grounds for amending a judgment under Rule 59:
“(1) a clear error of law; (2) newly discovered
evidence; (3) an intervening change in controlling law; or
(4) a need to prevent manifest injustice.” Leisure
Caviar, LLC v. United States Fish & Wildlife Serv.,
616 F.3d 612, 615 (6th Cir. 2010) (quoting Intera Corp.
v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005)).
Defendant argues that in denying his Motion to Suppress, the
Court committed a clear error of law and reconsideration is
necessary to prevent manifest injustice.
Fourth Amendment protects the “right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be
violated.” U.S. Const. amend. IV. Warrantless searches
and seizures “are per se unreasonable . . . subject
only to a few specifically established and well delineated
exceptions.” Katz v. United States, 389 U.S.
347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One exception
to the warrant requirement is “a search that is
conducted pursuant to consent.” Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973) (citing Davis
v. United States, 328 U.S. 582, 593-94 (1946)).
“Consent to enter need not be explicit.”
Smith v. City of Wyoming, 821 F.3d 697, 709 (6th
Cir. 2016). It “may be given in the form of words,
gesture or conduct.” United States v. Carter,
378 F.3d 584, 587 (6th Cir. 2004) (en banc).
Order denying Defendant's Motion to Suppress, the Court
noted that Defendant did not raise an argument regarding
consent to Sergeant Rager's initial entry into the home.
(Doc. 29, PAGEID# 148). Nevertheless, the Court found that
there was sufficient evidence of consent to his initial entry
into the home. (Doc. 29, PAGEID# 149). Defendant now
challenges that conclusion, and also argues that there was
not voluntary consent given to Sergeant Rager to enter the
house a second time after Defendant was placed in the back of
a police cruiser.
outset, the Court again notes that Defendant never expressly
refused consent to allow Sergeant Rager to enter the home or
search the garage. In certain circumstances, a third party- a
person other than the defendant-can validly consent to a
search of the defendant's home. United States v.
Matlock, 415 U.S. 164, 169, 94 S.Ct. 988, 39 L.Ed.2d 242
(1974) (“[T]he voluntary consent of any joint occupant
of a residence to search the premises jointly occupied is
valid against the co-occupant.”). The third party's
ability to consent to such a search rests on his or her
“joint occupation” of and “common
authority” over the premises. Fernandez v.
California, 571 U.S. 292, 299, 134 S.Ct. 1126, 188
L.Ed.2d 25 (2014). In addition, depending on the
circumstances, an officer may rely on the apparent authority
of a person consenting to a search. Illinois v.
Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 2797,
111 L.Ed.2d 148, 156 (1990). Apparent authority arises when a
third party (1) does not possess actual authority to consent
but appears to have such authority and (2) the law
enforcement officer reasonably relied, from an objective
perspective, on that appearance of authority. Id. at
Rager testified that there were approximately eight adults
and children in the home. (Doc. 25, PAGEID# 86). Even if the
adults present in the house on Darbyshire Road lacked actual
authority to consent to the search, the Court finds that they
had apparent authority; and it was reasonable for Sergeant
Rager to believe that those adults had authority to consent
to the search.
Sergeant Rager arrived at the house on Derbyshire Road, he
first spoke to a young boy holding a basketball. (Doc. 25,
PAGEID# 82; Gov't Exh. 2 at 0:48). The boy asked,
“Do you need someone?” (Doc. 25, PAGEID# 82;
Gov't Exh. 2 at 0:49). Sergeant Rager asked him if his
mom or dad were here. (Doc. 25, PAGEID# 82; Gov't Exh. 2
at 0:50). The boy responded, “My mom is not here, but
[inaudible], ” and ran into the house. (Doc. 25,
PAGEID# 82; Gov't Exh. 2 at 0:48). It is clear from this
interaction that the boy was going into the house to find
someone to talk to Sergeant Rager. When Sergeant Rager
reached the front door of the house, a female came out of the
house. (Doc. 25, PAGEID# 82; Gov't Exh. 2 at 1:32). This
female was later identified as Savannah New. Sergeant Rager
explained that there was a report of people fighting. (Doc.
25, PAGEID# 82; Gov't Exh. 2 at 1:36). New told Sergeant
Rager that the people who were fighting were in the garage.
(Doc. 25, PAGEID# 82; Gov't Exh. 2 at 1:40). Rager asked
how to get into the garage, and New showed him to a door
inside the house that led to the garage. (Doc. 25, PAGEID#
82; Gov't Exh. 2 at 1:40 to 1:56). As he followed New
inside, Sergeant Rager asked her what the house number was.
(Doc. 25, PAGEID# 82; Gov't Exh. 2 at 1:50). At that
point, New told Sergeant Rager that this was not her house,
but it belonged to “Christy” who was not home.
(Doc. 25, PAGEID# 82; Gov't Exh. 2 at 1:57, 2:17). A man
who was in the living room of the house confirmed that the
two people who were fighting were now in the garage. (Doc.
25, PAGEID# 82; Gov't Exh. 2 at 2:30). Sergeant Rager
knocked on the door of the garage, and Defendant came to the
door. (Doc. 25, PAGEID# 82; Gov't Exh. 2 at 2:34 to
2:42). Sergeant Rager asked Defendant if he lived here, and
he responded, “I stay here with friends.” (Doc.
25, PAGEID# 82; Gov't Exh. 2 at 2:59). Sergeant Rager
asked Defendant to walk outside and talk. (Doc. 25, PAGEID#
82; Gov't Exh. 2 at 3:05). Defendant refused to go
outside, and said, “talk to me here, man.” (Doc.
25, PAGEID# 82; Gov't Exh. 2 at 3:16). Defendant then
starting yelling and told New and the man in the living room,
that “somebody should call somebody, because I
didn't do nothing.” (Doc. 25, PAGEID# 82; Gov't
Exh. 2 at 3:57). Defendant asked them, “where is she,
the house lady?” (Doc. 25, PAGEID# 82; Gov't Exh. 2
at 0:48). New responded, “she's not here.”
(Doc. 25, PAGEID# 82; Gov't Exh. 2 at 0:48). Defendant
walked towards the back of the house yelling for the
“house lady.” (Doc. 25, PAGEID# 82; Gov't
Exh. 2 at 4:07). New then said, “Christy's
gone.” (Doc. 25, PAGEID# 82; Gov't Exh. 2 at 4:10).
Sergeant Rager followed Defendant as he continued walking and
walked out the back door. (Doc. 25, PAGEID# 82; Gov't
Exh. 2 at 4:13). The video shows two people working on a
lawnmower in the back yard and at least three children
playing on the deck. (Doc. 25, PAGEID# 82; Gov't Exh. 2
at 4:16). Defendant walked out into the yard while yelling,