Lead Opinion
OPINION
Defendant-Appellee Daniel Tatman was indicted on two counts of unlawful possession of a machine gun and one count of transporting, shipping, or receiving a firearm that has had its serial number removed, in violation of 18 U.S.C. § 922(k) and (o). Tatman filed a motion to suppress evidence obtained by law-enforcement officials during four searches of his house that he alleges violated his Fourth Amendment rights. The district court granted Tatman’s motion to suppress. The Government appeals the district court’s suppression ruling on an interlocutory basis. Based on the following analysis, we AFFIRM.
I. BACKGROUND
Apparently, Tatman used his home, located at 401 Tabernacle Road, Chillieothe, Ohio, to alter and manufacture firearms, including fully automatic weapons, or machine guns. In February 2006, when the initial events giving rise to this case occurred, Tatman and his wife Taresa were separated. Three months earlier, in December 2005, Taresa had left their home to live with Tatman’s cousin, Rob Fletcher. She had moved all of her belongings out of the house except a cast-iron skillet over which there was some dispute. Taresa did not return to the house until February 4, 2006. Very early that morning, Taresa came to the house and threatened Tatman that she would tell the authorities about his illegal weapons if he did not give her possession of the house. Tatman agreed to leave the following day. Still, Tatman and Taresa got into an altercation that resulted in Tatman ripping the phone from the wall and physically removing Taresa from the house. Taresa then went to a local general store and called the police alleging domestic violence. Deputy Christopher Clark of the Ross County Sheriffs
Based on Taresa’s domestic violence allegations and a statement from her that she resided at 401 Tabernacle Road, the police decided to go to the house to arrest Tatman. After an initial trip to Tatman’s house at which no one answered the door, the officers went back to the store and Taresa agreed to let them into the house. As soon as Clark opened the door, he encountered Tatman. Clark testified that Tatman consented to his entry, while Tat-man testified that he immediately objected to Taresa’s and Clark’s entry and told Clark that Taresa did not live there and had no right to be there. After a short discussion, Tatman agreed to leave the house, but first went upstairs to collect some personal items. While Tatman was upstairs, Taresa told Clark that Tatman possessed fully automatic weapons in the house. Clark then went upstairs and discovered three such weapons on a blanket on the floor. He then arrested Tatman for domestic violence, handcuffed him, and took him to a police cruiser.
Once Tatman was in custody, Clark asked Taresa for written consent to conduct a second search of the house. Taresa signed a written consent form and walked through the house with Clark pointing out to Clark places where weapons might be hidden. Clark discovered and seized a number of weapons, including eleven fully automatic weapons.
Two days later, on February 6, 2006, the police sought a search warrant for Tat-man’s residence to look for additional weapons, since the first two searches were conducted at night, in the dark. Detective David Bower submitted an affidavit in support of the request for the warrant recounting the events of February 4, 2006. A Ross County municipal judge authorized the search warrant and the sheriffs office conducted a third search that same day. During that search, the police discovered an additional fully automatic weapon, suppressors, silencers, and equipment for making silencers.
Eight months later, Scott O’Brien, a federal agent at the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), met with Tatman and arrested him based on a federal arrest warrant. O’Brien requested to search Tatman’s house for additional machine guns, marijuana, and evidence of a fugitive whom authorities suspected may have been hiding on Tatman’s property. Tatman agreed to allow a search of his house for these purposes and signed a written consent form. During this fourth search, ATF agents seized a box of gun parts, which included a CZ-26 parts kit.
On December 12, 2006, Tatman was indicted on two counts of unlawful possession of a machine gun and one count of transporting, shipping, or receiving a firearm which has had its serial number removed, in violation of 18 U.S.C. § 922(k) and (o). The district court held an evi-dentiary hearing on Tatman’s suppression motion that lasted three days. Following the hearing, both parties submitted additional briefs. On December 31, 2008,
II. ANALYSIS
A. Jurisdiction and Standard of Review
This Court has jurisdiction over the Government’s appeal of the district court’s suppression ruling on an interlocutory basis because the suppressed evidence provides “substantial proof of a fact material in the proceeding.” 18 U.S.C. § 3731; see United States v. Purcell,
In reviewing a district court’s ruling on a motion to suppress, we review findings of fact for clear error and legal conclusions de novo. Purcell,
B. First Search
The district court found that the first search of Tatman’s home was unconstitutional and accordingly suppressed the evidence discovered based on that search. It reasoned that, although Taresa had apparent authority to consent to Clark’s entry when Clark and Taresa initially arrived at the house, Tatmaris objection to Clark’s entry trumped Taresa’s consent under Georgia v. Randolph,
Both Tatman and Clark testified at the suppression hearing about Clark’s initial entry into Tatman’s home. Their testimony differed on factual issues that are significant in determining whether Clark’s initial entry and search was valid. Where in dispute, the district court credited Tat-man’s testimony over Clark’s testimony. As we have noted, we review these factual findings only for clear error and must draw all factual inferences in favor of upholding the district court’s decision to suppress the evidence discovered during the first search. See Panak,
According to Tatman, after he removed Taresa from the house early in the morning of February 4th, he went upstairs to his bedroom to gather his belongings, but eventually went back to sleep. He woke to shouting downstairs. He stated: “I heard someone yelling in the front door. I could
Q. And [Clark] is actually inside the doorjamb?
A. He is standing in the doorway.
Q. Then who makes the next move, and where do they get to?
A. I asked [Clark] how he got in. He said the door was open. And I told him, I said, No, it was not open. I’d just locked it.
And he told me, he said, Well, [Tare-sa] let me in.
A. I told him that she had no right to let him in, she had no right to be there, she did not live there.
Q. Now, you have an absolute recollection that you made those three statements to that officer?
A. Yes. I was very upset because I’d just throwed her out of the house.
Q. Did you make any comment about his right to be there?
A. I told [Clark] that she had no right to let him in, they had no right to be there.
Q. Now, after you said she had no right to be here, did you have some discussion with him about her having possessions there or not?
A. Yeah. I told him she did not live there. And he said, She don’t have no possessions here?
I said, No, there is nothing here.
I turned on the light, which I had a light switch at the top of the stairway. ... [This] lit up the foyer. I turned it on, and I said, She has no possessions here.
And I kind of told — you know, I said, There ain’t nothing here, which there was nothing in the house. A couple of pieces of furniture, no knickknacks, nothing hanging on the walls.
And he said, She don’t have no clothes or anything here?
And I said, No, she got all that.
(Id. at 111-13.)
Tatman testified that he then walked down a few steps and sat on the stairs. At that time, Clark was standing in the foyer, Taresa was standing a “couple of feet outside the door,” and there was no one else in the house. (Id. at 114.) Tatman stated that “[t]hat’s when [Clark] told me that she — he was there for domestic violence and wanted to know if I throwed her — if we had any confrontation. I said, Yes, I throwed her out. I said, She don’t live here.” (Id. at 114.) Tatman testified that, next, “[Clark] told me that she wanted the possession of the house. She started yelling and screaming that she’d tell, and I told him, I said, If I need to go, I’ll go. And he said, That would be in your best interest.” (Id. at 114.) Tatman then “asked [Clark] about getting my stuff. He said, Yeah, you can get your stuff. He said, Just clothes. I went upstairs and started getting dressed.” (Id.) Tatman testified that he went upstairs unaccompa
Well, I went upstairs. I already had some guns laying out, because I started packing up earlier that night, because I was planning on leaving the next day. I went upstairs, started getting my clothes gathered up, got my pants on, and [Clark] came up, picked up a gun, started looking at it, and cuffed me.
(Id. at 116.) Tatman testified that Clark then led him into a police cruiser thirty or forty feet from the front door. Tatman observed the ongoing activity in his house from the backseat of the cruiser.
Clark testified to a much different version of events. According to Clark, as he approached, he shined his flashlight into Tatman’s house through the windows on the front door. He stated:
I can’t really recall what exactly happened at that point. Next thing that I’m a hundred percent sure that happened was I shined my light. I’m not sure if [Taresa] opened the door a crack or if [Tatman] came down and opened the door, but I shine my light at one point, and he was on a loft. And I let him know I could see him, and I spotlighted him with my light to let him know I could see him, and he came down and opened up the door, and I explained who I was and why I was there, and I stepped in the house, but he opened the door.
Now, whether or not [Taresa] unlocked it and cracked it so I could yell in or not or was getting ready to go in, I can’t say for sure, because I just can’t remember.
(R.E. 39, vol. 1, at 32-33.) Clark testified that, after introducing himself, he told Tat-man that he was there investigating the domestic-violence incident. According to Clark, Tatman never protested his or Taresa’s entry into the house, never told him that he did not have a right to be in the house, and never told him to leave the house. Clark testified that they then had a conversation in which Taresa informed him that there were fully automatic weapons in the house and Tatman “confirmed that there were weapons.” (Id. at 40.) Clark stated that Tatman acted cooperatively and led him upstairs to look at the weapons. When he saw the weapons on the blanket on the floor of the upstairs bedroom, Clark testified that he placed Tatman in handcuffs and arrested him for domestic violence.
As noted above, the district court resolved the factual disputes based on Tat-man’s and Clark’s conflicting testimony in Tatman’s favor, concluding that Tatman’s testimony about both the entry and whether he objected to Clark’s presence was more credible than Clark’s testimony. In doing so, the court noted that Tatman’s version of events was corroborated by sworn affidavits from Taresa and Fletcher and was consistent with the undisputed story of what had taken place earlier that night — Tatman had physically removed Taresa from the house after she threatened to report his possession of illegal guns to the police. Accordingly, the court concluded that Tatman did not consent, and in fact objected, to Clark’s initial entry. The district court’s factual findings regarding Clark’s entry are supported by Tatman’s testimony and the Government does not contend that the court clearly erred in making these findings. Therefore, we adopt these findings for our analysis.
The question for this Court to resolve is whether Tatman’s objections to Clark’s entry invalidated Taresa’s consent
The search in Randolph arose under similar circumstances. The Randolph defendant’s wife had moved out of their house roughly a month earlier, but had returned the morning that the search took place and called the police based on a domestic dispute. Id. at 106-07,
The Court concluded that the search of the Randolph defendant’s home was unlawful based on his contemporaneous refusal to consent. In doing so, the Court analogized to social invitations:
[I]t is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant’s invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, ‘stay out.’ Without some very good reason, no sensible person would go inside under those conditions.
Id. at 113,
In so holding, the Court was careful not to overturn the holdings of two earlier cases, United States v. Matlock,
Tatman, like the Randolph defendant, clearly and unequivocally objected to the police officer’s presence before the search began. While Clark was standing in Tat-man’s front doorway, Tatman stated that neither Clark nor Taresa had any right to be in his house. Moreover, Tatman informed Clark that, contrary to her earlier assertions, Taresa did not live in the house and attempted to show Clark that she had no belongings in the house. These statements not only made clear that Tatman was not consenting to Clark’s entry but also called into question Taresa’s apparent authority to consent to Clark’s entry. As we have stated, “if a potential defendant with self interest in objecting to the search is present and actually objects, then a third party’s permission does not suffice for a reasonable search.” United States v. Ayoub,
The Government attempts to distinguish Randolph because, by the time Tatman made his way from his bed to the top of the stairs where he voiced his objection, Clark already had opened the door and was standing in the doorway. But the distinction that the Government urges us to make stands at odds with the Randolph’s holding. The Government relies heavily on Randolph’s description of a successfully objecting co-tenant as someone who “is in fact at the door and objects,” rather than “the potential objector, nearby but not invited to take part in the threshold colloquy.” Id. However, we note that the Court varied the language it used to describe a person in the Randolph defendant’s position, indicating that it did not intend the “at the door” language to be talismanic. See, e.g., Randolph,
This separates Tatman’s case from a number of our past cases that rejected Randolph- based suppression challenges where the defendant did not object, but argued that the search was unconstitutional because the police failed to provide a fair opportunity to do so. These arguments are based on Randolph’s warning against upholding searches where there is “evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.” Randolph,
Further, even if we were to find that Tatman’s objections to Clark’s entry came too late or from too far a distance to invalidate the search under Randolph, Tat-man’s objections would operate as a withdrawal of Taresa’s consent. A person who consents to a warrantless search has the right to restrict the scope of the search. See Florida v. Jimeno,
Because of Tatman’s objections, Clark’s warrantless entry into and subsequent search of Tatman’s home was unconstitutional. The Government presents three additional arguments as to why the search was legal, all of which fail because Clark’s entry was unconstitutional under Randolph. The Government first argues that the search was legal because it was a search incident to a lawful arrest. This argument fails because the arrest was not legal; although Clark may have had probable cause to arrest Tatman for domestic violence, Clark was not permitted to enter Tatman’s home to arrest him without a warrant or exigent circumstances. See Kirk v. Louisiana,
Based on the foregoing analysis, we conclude that the first search of Tatman’s home violated Tatman’s Fourth Amendment rights. Therefore, the district court was correct in suppressing the evidence obtained based on that search.
C. Second Search
The district court concluded that the second search of Tatman’s home, conducted the same night as the first search but after Tatman had been arrested and Tare-sa had signed a written consent form, also was unlawful because Taresa’s consent was not voluntary and, even if her consent had been voluntary, she no longer had apparent authority to consent to the search. The Government contests both findings. We conclude that the district court’s conclusions were correct in both regards. Therefore the court properly suppressed the evidence discovered based on this search.
1. Voluntariness
“Whether consent is voluntary is a question of fact determined from the totality of the circumstances.” United States v. Lopez-Medina,
The Government presents three arguments for why the district court’s finding that Taresa’s consent was involuntary was clearly erroneous. First, the Government contends that Taresa’s consent was voluntary because the consent form she signed included a clause stating that she had a right to refuse to consent to the search and a right to refuse to sign the form. Although “ ‘knowledge of the right to refuse consent is one factor to be taken into account,’ ” United States v. Worley,
Second, the Government points to the fact that Taresa never testified that her written consent was given involuntarily
[Clark] asked if Taresa would consent to him searching the residence. She answered she didn’t know what to do. She stated she was not living there. She stated that the house was subject to divorce proceedings and she did not want to lose it because it was important to her and to the children. The deputy told her that if she did not consent he would go back and obtain a search warrant. It was in her interest to sign a consent.
(Id. at 2.) The Government filed a stipulation with the district court specifically agreeing not to object to the admissibility of these affidavits. Therefore we reject the Government’s argument that these statements are insufficient because they were presented by way of affidavits rather than live testimony. Cf. United States v. Kellogg,
Finally, the Government points to the fact that Taresa was the person who called the police and informed them about Tat-man’s weapons, and argues that “[i]t would be exceedingly strange for her to tell the police about the guns, but then not want to permit them to find the guns.” (Gov’t Br. 30.) However, intervening between these first two acts and her signing of the consent form, Taresa saw her husband handcuffed, led outside by police, and placed in the back of a police cruiser. Regardless of her earlier actions, seeing this may have given her pause about permitting the police to search further.
Based on the foregoing analysis, we conclude that the district court’s factual finding that Taresa’s written consent was given involuntarily was not clearly erroneous.
2. Apparent Authority
Even if the Government were able to show that the district court clearly erred in finding that Taresa’s consent was involuntary, the second search of Tatman’s home still would be illegal because Taresa lacked apparent authority to consent to the search at the time she signed the consent form.
“The apparent-authority doctrine excuses otherwise impermissible searches where
When police are conducting a search pursuant to a person’s consent and circumstances arise that create ambiguity as to whether the person who consented actually had authority to consent to the search, the police have a duty to take affirmative steps to confirm that the person who consented actually had such authority. United States v. Waller,
Once ambiguity erases any apparent authority, it is not difficult for the searching officers to reestablish the would-be-consenter’s authority. The options for searching officers are simple: either they may get a warrant, or they may simply ask the would-be-consenter whether he or she possesses the authority to consent to the search....
Purcell,
Tatman informed Clark that Taresa did not live in the house, had no right to be in the house, and had no authority to let Clark into the house. Further, he told and visually demonstrated to Clark that Taresa no longer had any possessions in the house. At the very least, these statements made it unclear as to whether or not Tare-sa had authority to consent to a search of the house. See Rodriguez,
Two days after the first two searches, the Ross County Sheriffs Office obtained a search warrant for Tatman’s house based on an affidavit made by Detective David G. Bower and conducted a third search of Tatman’s house the same day. The district court concluded that this search was unconstitutional because the supporting affidavit was tainted by the fruits of the two previous, illegal searches and, after excising the tainted portions of the affidavit, the statements remaining were insufficient to establish probable cause. Based on the same reasoning, the district court found that the warrant also could not be used to admit the fruits of the first two searches under the inevitable-discovery doctrine. The Government challenges both of these findings.
“Whether a search warrant affidavit establishes probable cause to conduct [a] search is a legal question that this Court reviews de novo.” United States v. Brooks,
The facts set forth in Bower’s affidavit read as follows:
1. The Affaint [sic] is a ten-year veteran of law enforcement and is currently assigned as a Detective within the Ross County Sheriffs Office Detective Division. The Affiant received initial training through the Ohio University Southern Ohio Police Officer Training Academy and has received advanced training through the Ohio Police Officer’s Training Academy.
2. On February 4, 2005, the Ross County Sheriffs Office was summoned to 401 Tabernacle Rd. reference [sic] a complaint of Domestic Violence. The responding Deputy obtained information from the victim and an arrest was made stemming from the complaint.
3. While at the scene, the Deputy was advised by the victim that the suspect was in possession of fully automatic firearms. The victim gave consent and a search was conducted for the alleged firearms.
4. During this search a number of non-registered fully automatic weapons were discovered, these weapons*169 where [sic] concealed in the attic of this residence. Also a number of other weapons were located throughout this residence.
5. While checking the non-modified weapons it was discovered and confirmed that one weapon had been reported stolen from Clark County 111 [sic] in 1996. This weapon is described as being a Diawa .12 gauge shotgun. Confirmation of this stolen weapon was obtained from law enforcement from 111.
6. Affaint [sic] additionally discovered technical drawings and instructions to assist in the conversation [sic] of semi automatic weapons to fully automatic weapons.
7. Affaint [sic] later learned that a workshop had been used to manufacture and alter parts and weapons to convert them into fully automatic weapons.
(Gov’t app. 6.) However, the majority of this information is tainted because it was obtained during the previous illegal searches. Therefore, “[t]he critical question to be determined is whether the affidavit, apart from the tainted information that is either inaccurate or illegally obtained, provides the requisite probable cause to sustain a search warrant.” United States v. Hammond,
Looking to the four corners of the excised affidavit, we conclude that it was not sufficient to establish probable cause to search Tatman’s home for fully automatic weapons because (1) there is no indication as to the reliability of the source of the information nor is there any independent corroboration of the information, and (2) the information is too vague and generalized to establish the requisite nexus between the place to be searched and the items sought.
The first problem with the affidavit is that it contains no information whatsoever about the reliability of Taresa, who is unnamed, as an informant and no independent corroboration of the information she provided. In United States v. Allen,
In a more recent case addressing this issue, United States v. Higgins,
The affidavit in this case does not meet any of the prerequisites that would obviate the need for independent police corroboration. First, Taresa is not named in the affidavit, she is identified only as “the victim,” and there is no indication that she was identified to the magistrate. Second, Bower does not attest to Taresa’s reliability in any way whatsoever, let alone “with some detail.” Allen,
Moreover, even if the affidavit did include the indications of reliability or corroboration needed to make Taresa’s statement adequate to provide probable cause, the statement itself is insufficient to establish a nexus between Tatman’s house and
Similarly, once the tainted information is excised from the supporting affidavit in this case, the only information that it conveys is that Tatman was arrested for a non-weapons crime (domestic violence), and a hearsay statement from the victim of that crime that he possessed illegal weapons. The McPhearson defendant’s actual possession of illegal drugs while he was arrested at his residence was insufficient to establish the requisite nexus to search for drugs in the residence. It follows that Taresa’s unsupported allegation that Tat-man possessed fully automatic weapons when he was arrested unarmed for an unrelated crime was insufficient to establish the requisite nexus between Tatman’s house and illegal weapons. Indeed, with the tainted portions of the affidavit removed, there is not even any indication of where Tatman allegedly possessed these weapons — whether that be his house or anywhere else. See Zurcher,
In sum, taking into account the totality of the circumstances, we conclude that the facts included in the redacted affidavit connecting Tatman’s home to illegal weapons “were too vague, generalized, and insubstantial to establish probable cause.” United States v. Carpenter,
E. Fourth Search: Scope of Tatman’s Written Consent and Plain-View Doctrine
Finally, the Government challenges the district court’s conclusion that the fourth search of Tatman’s home, which resulted in the discovery of a CZ-26 parts kit that the Government contends is an illegal machine gun, was unconstitutional because the evidence seized by police in the search
Roughly eight months after the initial three searches of Tatman’s home, Scott O’Brien, a federal ATF agent working on Tatman’s case, received information from the Ross County Sheriffs Office that Tat-man possibly was in possession of additional machine guns, growing marijuana, and helping harbor John Parsons, a fugitive accused of shooting a police officer. (Tat-man and O’Brien previously had spoken when Tatman was seeking to retrieve what he believe to be non-contraband property seized during the first three searches, including the CZ-26 parts kit, which eventually was returned to Tatman from the sheriffs office.) On October 5, 2006, O’Brien called and asked Tatman to meet him at the Scioto Downs horse racing track in order for them to talk. When Tatman arrived, O’Brien arrested him pursuant to a federal warrant. Tatman then was transported to an ATF field office in Columbus, Ohio.
Once at the ATF office, O’Brien questioned Tatman, focusing on the whereabouts of Parsons, but also raising the possibility that Tatman possessed illegal weapons. The interview included the following exchange:
AGENT O’BRIEN: ... [S]o, there’s no other machine guns in your house? Just semi-automatic ones that you got back from (unintelligble) ...
DANIEL TATMAN: Yea ... I got one semi-automatic, that’s it.
AGENT O’BRIEN: Alright. Would you have a problem, if I went down to your house, to make sure there is no more machine guns or no evidence of you assisting John Parsons?
DANIEL TATMAN: My (unintelligible) and parts kits are there, that’s it.
AGENT O’BRIEN: Okay. Alright. But you wouldn’t have a problem if we went down there just to take, so I could eliminate you off the ... (unintelligible)
DANIEL TATMAN: Uhhh ... I have no connection on John Parsons.
AGENT O’BRIEN: No connection?
DANIEL TATMAN: And I have no machine guns.
AGENT O’BRIEN: Okay.
DANIEL TATMAN: Like I said, there is some parts kits there, that ...
AGENT O’BRIEN: parts kits a parts kit
DANIEL TATMAN: Yea.
(Gov’t app. 47.) Following this conversation, Tatman signed an ATF “consent to search” form that included the following language: “I understand that any contraband or evidence of a crime found during the search can be seized and used against me in any court of law or other proceeding.” (Id. at 2.) It further stated that Tatman authorized the federal agents “to conduct a complete search” of his property at 401 Tabernacle Road. (Id.) After signing the form, Tatman was transported to Franklin County jail.
O’Brien, along with several other law enforcement officials, then went to Tat-man’s residence and conducted a search.
O’Brien seized the gun parts found in Tatman’s closet, but testified that he was not able to determine whether or not they were illegal before doing so. O’Brien stated: “I was not able to identify anything on these firearms. So, we collected these and took photographs of the items that were taken and sent those to our firearms technology branch, where the experts are in identifying machine guns and firearms.” (R.E. 39, vol. 2, at 42.) He stated that these experts were the people “that can tell us if a machine gun is illegal or if it’s not illegal.” (Id. at 51.) These firearms experts determined that, among the items seized, the CZ-26 parts kit was considered an illegal machine gun because “it was readily convertible to be made into a machine gun.” (Id. at 42.) Specifically, Tat-man testified:
Q. You could not, from looking at these parts as they- — as you observed them ... you could not readily ascertain in your own mind that these parts, as you saw them on that day, were machine gun parts, could you?
A. No.
Q. You could not reasonably determine that until after the government examined them carefully and gave you a report?
A. Correct.
(Id. at 38-39.) On direct examination from the court, Tatman clarified that he “could not determine whether [the gun parts] were legal or illegal.” (Id. at 54.)
O’Brien stated that he did not ask Tat-man whether he had permission to take the parts kits for voluntary testing, but that he felt he was entitled to seize them based on Tatman’s signing of the consent form.
We determined at that point in time, because it’s not a fully assembled firearm, there is no way we can do a function check by pulling the trigger and the receiver back. So, at that time, we make a field judgment to take the evidence to make sure it’s not a machine gun, have it tested to determine if, in fact, these parts are a machine gun. And if our tests come back they’re not, then the property would be returned.
(Id. at 77.) Indeed, O’Brien stated that he “seized [the gun parts] in an investigation
We conclude that the CZ-26 parts kit did not fall outside of the scope of Tatman’s consent to search. The district court held that because Tatman and O’Brien’s conversation about weapons pri- or to the search focused on additional machine guns, beyond those discovered during the February searches, “a reasonable person would interpret this request to include only those weapons and gun parts that had not already been seized during one of the earlier searches.” (Dist.Ct. Op.42.) It is true that “[t]he scope of a search is generally defined by its expressed object.” Jimeno,
Although we conclude that the federal agents did not exceed the scope of Tat-man’s consent in conducting the fourth search, this does not mean that the Fourth Amendment permitted the agents to seize the gun parts. The Fourth Amendment “protects two types of expectations, one involving ‘searches,’ the other ‘seizures.’” United States v. Jacobsen,
The right to security in person and property protected by the Fourth Amendment may be invaded in quite different ways by searches and seizures. A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property. The ‘plain-view' doctrine is often considered an exception to the general rule that warrantless searches are presumptively unreasonable, but this characterization overlooks the important difference between searches and seizures. If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. A seizure of the article, however, would obviously invade the owner’s possessory interest. If ‘plain view’ justifies an exception from an otherwise applicable warrant requirement, therefore, it must be an exception that is addressed to the concerns that are implicated by seizures rather than by searches.
Horton v. California,
The seizure of the gun parts, including the CZ-26 parts kit, violated Tat-man’s Fourth Amendment rights because they were not immediately incriminating. See United States v. McLevain,
As the district court correctly concluded, “[t]he trigger group was not readily identifiable as a machine gun. Only after Agent O’Brien sent photographs of the gun parts to the firearms technology branch did the experts determine the trigger group was capable of being converted into a machine gun.” (Dist.Ct.Op.39.) O’Brien testified that he could not tell whether the gun
Although O’Brien admitted to never asking Tatman for consent to take the gun parts for testing, he apparently was under the impression that Tatman’s signing of the form meant that “[he] could take any property.” (R.E. 39, vol. 2, at 75.) He was mistaken. The consent form simply stated that Tatman “understood] that any contraband or evidence of a crime found during the search can be seized.” (Gov’t app. 2.) Because the gun parts seized were not immediately incriminating, the ATF agents did not have probable cause to believe they were contraband or evidence of a crime. Thus, their seizure is not covered by the plain view doctrine.
The dissent argues that the seizure of the gun parts was justified because of the consent form’s reference to seizures. However, the seizure language included in
The Government has provided no alternative justification for seizing these gun parts without a warrant.
III. CONCLUSION
Based on the foregoing analysis, we AFFIRM the district court’s ruling granting Tatman’s motion to suppress.
Notes
. O'Brien described a "parts kit" or "trigger group" as a collection of gun parts — springs, triggers, pieces of metal — that can be assembled or reassembled into a firearm. The Gov-eminent alleges that the CZ-26 parts kit itself is an illegal machine gun because of the ease with which it can be reassembled into a fully automatic weapon.
. For example, if Clark had discovered illegal contraband in plain sight before Tatman objected, Clark may have been permitted to remain. Here, however, Tatman objected while Clark was still standing in the front doorway. Moreover, Clark had no reason to believe that Tatman possessed illegal weapons until after their discussion ended and Tatman went upstairs.
. The dissent contends that exigent circumstances did justify this first search of Tatman's home. We note that it is the Government's burden to prove that an exigency existed, Bates,
. Indeed, Taresa never testified at all. Appar-endy, Taresa and Fletcher asserted their Fifth Amendment rights not to testify at the suppression hearing.
. The Government does not argue that Taresa had actual authority to consent to a search of Tatman’s house.
. Because we conclude that Taresa lacked apparent authority to consent to the search when she signed the consent form, we decline to address whether Tatman's earlier objection to Clark's entry trumps Taresa's subsequent consent after Tatman was taken into police custody and removed from the house. A circuit split has emerged on this issue. The Ninth Circuit has held that the earlier refusal to consent invalidates such a search in regards to the objecting co-tenant. See United States v. Murphy,
. The Government also argues that the district court erred in redacting the affidavit because the earlier searches were legal. This argument fails because, as set forth above, the first two searches were illegal. Before the district court, the Government argued that even if the warrant was technically deficient, the evidence discovered during the third search was admissible because the police relied on the warrant in good faith. The Government has abandoned this good-faith argument on appeal.
. O’Brien testified that, during his conversation with Tatman where Tatman consented to the search, he told Tatman that he wanted to make sure that the parts kits were not machine guns. However, this does not appear in the portion of transcript provided from their interview.
. Consistently, the officers at the Ross County Sheriffs Office apparently did not think that the CZ-26 parts kit was illegal because they returned it to Tatman after they initially seized it during one of the Februaiy searches. It seems that Tatman also thought that the parts were legal as he specifically mentioned to O’Brien that the parts kits were in his house before granting O’Brien consent to search.
. In Szymkowiak, this Court described the significance of this requirement:
The requirement that probable cause be “immediate” from the discovery of the object specifically averts the "danger inherent in such a situation that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.”.... In considering whether probable cause was “apparent” to the executing officers, a reviewing court should be duly mindful of the executing officers’ particular subjective training and experiences. Where an executing officer's probable cause to connect the viewed item with criminal behavior is not both "immediate" and “apparent,” however, the individual's interests in retaining possession of property and in maintaining privacy, and society's interest in lawful enforcement activity, are greatly compromised.
Szymkowiak,
. For example, had the weapons not been fully dissembled and had Tatman been in the house, exigent circumstances may have justified their seizure, at least temporarily. See Flores,
Concurrence Opinion
concurring in part and dissenting in part.
I concur with much that the majority has said, and agree that much of the government’s evidence was obtained in violation of the Fourth Amendment and must be suppressed. However, I disagree with the majority’s analysis on two points. First, I believe that exigent circumstances existed on the night of February 4 that allowed Deputy Clark to advance into the house and enter the upstairs bedroom where Tatman was located because Tatman had been violent earlier in the evening and the officer received credible information that Tatman had access to illegal, fully automatic weapons. Second, I believe that Tatman consented to the seizure of items during the October search conducted several months later even when the plain view doctrine would not allow seizure. Thus, I respectfully dissent on these two points.
On the first point, I would find that exigent circumstances existed on February 4 that allowed Clark to proceed to the upstairs bedroom where Tatman was dressing. “[A]lthough ‘searches and seizures inside a home without a warrant are presumptively unreasonable,’ Groh v. Ramirez,
However, once Tatman had been secured and removed from the house, and the illegal firearm removed, the exigent circumstances rule ends. Cf. United States v. Johnson,
However, I part ways with the majority once more. I believe that the district court erred when it suppressed evidence obtained during the October search, which was conducted pursuant to Tatman’s explicit and written consent. The majority notes that a consent to search is not a consent to seize, thereby requiring that seizing officers satisfy the Fourth Amendment in some other way, say, by invoking the plain view doctrine. I agree that this is the rule, “unless of course the consent goes so far.” 4 W. LaFave, Search and Seizure § 8.1(c), p. 36 (4th ed.2004).
Here, the consent goes so far as to allow a seizure. Tatman did not just consent to a search, but he also explicitly authorized that “any contraband or evidence of a crime found during a search can be seized and used against me in any court of law or other proceeding.” The scope of this consent should be interpreted according to
Accordingly, I would affirm in part and reverse in part the district court’s suppression of evidence. I would allow the admission of (1) evidence relating to the fully automatic weapon seen in plain view in Tatman’s bedroom on the night of February 4 and (2) evidence seized during the October search pursuant to Tatman’s consent. Because the majority affirms the district court’s suppression of this evidence, I respectfully dissent in part.