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United States v. Russell

United States District Court, S.D. Ohio, Western Division

June 11, 2019

United States of America, Plaintiff,
v.
Alon Russell, Defendant.

          OPINION & ORDER

          MICHAEL R. BARRETT, JUDGE

         This 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.

         I.BACKGROUND

         The 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 here.

         Defendant argues that the Court erred in finding there was voluntary consent to search provided by someone with actual or apparent authority.

         I. ANALYSIS

         A. Motion for reconsideration

         The 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.

         B. Fourth Amendment

         The 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).

         In its 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.

         At the outset, the Court again notes that Defendant never expressly refused consent to allow Sergeant Rager to enter the home or search the garage.[1] 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 185-89.

         Sergeant 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.

         When 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, ...


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