UNITED STATES of America, Plaintiff-Appellee, v. Jason Wayne WHITE, Defendant-Appellant.
No. 12-5124.
United States Court of Appeals, Tenth Circuit.
Jan. 29, 2013.
506 F. App‘x 837
Even if we assume, as the district court did, that anise oil is capable of causing injuries similar to those Howell complained of, he has provided no evidence that the anise oil was the actual cause of those injuries. Indeed, Howell’s own testimony shows that anise oil was not the only oil he has been applying under his nose. “[W]here an injury has multiple potential etiologies, expert testimony is necessary to establish causation.” Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004) (Jones Act case); see also Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 674 (6th Cir. 2010) (rejecting expert’s opinion that defendants’ welding products caused plaintiff’s Parkinson’s disease because, among other things, expert provided only speculation to rule out other possible causes). Further, Howell’s “treating physicians” appear to be the prison’s nurse and two physician’s assistants—none of whom have opined that anise oil caused his injuries.2 Because Howell failed to provide any evidence of specific causation, summary judgment was appropriate. Cf. Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 676-77 (6th Cir. 2011) (stating that toxic tort cases require expеrt scientific assessments concerning general and specific causation); Junk v. Terminix Int‘l Co., 628 F.3d 439, 450 (8th Cir. 2010) (holding that expert testimony was required to show insecticide compound was the general and specific cause of a newborn’s injuries). And given that he failed to remedy that deficiency in his
CONCLUSION
The judgment of the district court is affirmed for substantially the same reasons identified in that court’s September 27, 2011, and March 28, 2012, orders.
UNITED STATES of America, Plaintiff-Appellee, v. Jason Wayne WHITE, Defendant-Aрpellant.
No. 12-5124.
United States Court of Appeals, Tenth Circuit.
Jan. 29, 2013.
Terry Lee Weber, Esq., Weber & Associates, P.C., Tulsa, OK, for Defendant-Appellant.
Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.
ORDER AND JUDGMENT*
SCOTT M. MATHESON, JR., Circuit Judge.
In February 2012, Jason Wayne White was charged in a three-count indictment with firearm- and drug-related offenses. Mr. White unsuccessfully moved to suppress evidеnce seized from his home, entered a conditional guilty plea, and was sentenced to 53 months of imprisonment. He now appeals from the district court’s denial of his motion to suppress.
Exercising jurisdiction pursuant to
I. BACKGROUND
A. Factual History
The district court held a hearing on Mr. White’s motion to suppress. Mr. White presented one witness, his mother Loretta Webster. Her testimony of the events leading up to Mr. White’s arrest differed from the testimony of officers who testified for the Government. The district court
On December 12, 2011, officers from the Claremore Police Department respоnded to a report that a male was attempting suicide with a handgun. Sergeant Stephen Cox, Officer David Thirion, and Officer Lance Jenson arrived at the residence and encountered Ms. Webster on the front lawn. She told the officers that Mr. White’s friend, Laura Dorsch, had called her at work to tell her that Mr. White was suicidal and had pointed a handgun to his head. Ms. Webster told the officers that Ms. Dorsch had secured the handgun, given it to Ms. Webster, and left the home.
Ms. Webster led the officers into her home and showed them the location of Mr. White’s upstairs bedroom. Sergeant Cox called up to his bedroom from the bottom of the stairs and instructed Mr. White to show his hands. Mr. White did so and was handcuffed.
Sergeant Cox asked where the gun was, and Mr. White directed him to a safe. Sergeant Cox located the safe, which had its door open, and saw that it was empty. Officers Thirion and Jenson also entered Mr. White’s room to retrieve his clothing. The officers noticed drug paraphernalia in plain view on Mr. White’s nightstand, and Officer Jenson took possession of it. When asked about the drug parаphernalia, Mr. White admitted to drug use.
Captain Milburn Litterell then arrived at the home. He spoke with Ms. Webster, who said she had taken and hidden the handgun. Captain Litterell asked whether he could have the gun. Ms. Webster agreed, and he followed her into her bedroom, where she retrieved a Springfield XD .45 caliber handgun from the far side of the bed and handed it to Captain Litterell. Mr. White was then transported to a nearby hospital.
B. Procedural History
On February 7, 2012, Mr. White was indicted on three charges: possession of a firearm and ammunition by a felon in violation of
The district court denied the motion to suppress, concluding that thе officers’ warrantless entry into the home was justified because Ms. Webster consented to their entry. Alternatively, the district court found exigent circumstances justified a warrantless entry.
Mr. White entered a conditional guilty plea to the third count, possession of a firearm and ammunition after conviction of a misdemeanor crime of domestic violence, reserving his right to appeal the denial of the motion to suppress. On July 27, 2012, Mr. White filed a timely notice of appeal.
II. DISCUSSION
Mr. White challenges the district court’s denial of his motiоn to suppress. He argues that the evidence seized from the
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
“Voluntary consent to search is one such exception.” Id. “Consent may be obtained from the individual whose property is searched, or in certain instances, from a third party who possesses either actual authority or apparent authority to consent to the search.” United States v. Cos, 498 F.3d 1115, 1124 (10th Cir. 2007); see also Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) (voluntary consent can be obtainеd “from a third party who possesses common authority over the premises”). Thus, to establish third-party consent justifying a warrantless entry, the Government must show that (1) the third party had actual or apparent authority to consent to entry into the home, and (2) the consent was freely and voluntarily given. United States v. Sanchez, 608 F.3d 685, 689 (10th Cir. 2010).
Mr. White does not contest that Ms. Webster had actual authority to consent to the officers’ entry into the home. He frequently refers to the residence as “her home” and notes that the firearm was retrieved from “her bedroom.” Aplt. Br. at 5. On severаl occasions, we have held that if family members or other cohabitants have access to the residence, they have actual authority to consent to an entry or search of the home. See United States v. Bass, 661 F.3d 1299, 1305 (10th Cir. 2011) (holding defendant’s girlfriend had authority to consent to search as a joint occupant), cert. denied, --- U.S. ---, 132 S.Ct. 1816, 182 L.Ed.2d 634 (2012); Sanchez, 608 F.3d at 689 (holding defendant’s 15-year-old daughter had actual authority to consent because she “lived full time in the house and had unrestricted access to it”); United States v. Andrus, 483 F.3d 711, 720 (10th Cir. 2007) (holding that officers had a reasonable belief that defendant’s father had authority to consent to the search of his son’s room and computer because he owned the home and had access to the room and computer at will). Accordingly, we see no basis to disturb the district court’s conclusion that Ms. Webster had authority to consent tо the officers’ entry into the home.
Although Ms. Webster had authority to consent to the officers’ entry, the Government must show that she gave voluntary consent. This inquiry “consists of two parts: (1) the law enforcement officers must receive either express or implied consent, аnd (2) the consent must be freely and voluntarily given.” Jones, 701 F.3d at 1317. “Whether a [party] freely and voluntarily gave ... consent to a search is a question of fact and is determined from
Mr. White insists that Ms. Webster never consented to the officers’ entry into the home, arguing:
[Ms. Webster] was met by policе officers at the front door asking where the gun was located. She responded by taking the officer to her bedroom and pointing out the location of the gun. She did not invite the police officers into her home, they just came in. She did not ever give the Claremоre Police Department any consent to search her home. They never asked permission to search.
Aplt. Br. at 5 (emphasis added) (citations omitted). We reject this argument.
Implied consent to enter a home is no less valid than explicit consent. Jones, 701 F.3d at 1320-21. Cоnsent “must be clear, but it need not be verbal. Consent may instead be granted through gestures or other indications of acquiescence, so long as they are sufficiently comprehensible to a reasonable officer.” United States v. Guerrero, 472 F.3d 784, 789-90 (10th Cir. 2007).
Mr. White acknowledges that Ms. Webster resрonded to the officer’s question, made at the front door, by “taking [him] to her bedroom.” Aplt. Br. at 5; see also id. at 10 (“If it was an emergency situation why did Officer Cox follow Mrs. Webster into the house?”). Sergeant Cox and Officer Thirion also testified that after they asked Ms. Webster where Mr. White was, she said hе was upstairs and led them into the house. Under either version of events, Ms. Webster took the affirmative action of leading the officers into the home. Such an affirmative act would lead a reasonable officer responding to a reported suicide attempt in the home to believe that Ms. Webster consented to entry into the home. See Jones, 701 F.3d at 1321 (finding implied consent to enter a home where officers asked to search, the defendant turned and walked toward the back door of the home, and the officers followed the defendant inside). Her act of retrieving the firearm for the officers further indicates she consented to their entry.
The only remaining issue is whether Ms. Webster’s consent was freely and voluntarily given. Consent cannot be “‘coerced, by explicit or implicit means, by impliеd threat or covert force.’” United States v. Kimoana, 383 F.3d 1215, 1225 (10th Cir. 2004) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)). “Consent is voluntary if there is no indication of either force or intimidation.” Id. (quotations omitted). We consider several factors to determine whether an individual has been coerced, including “physical mistreatment, use of violenсe or threats of violence, promises or inducements, deception or trickery.” United States v. Silva-Arzeta, 602 F.3d 1208, 1214 (10th Cir. 2010) (quotations omitted).
Mr. White does not contest that Ms. Webster voluntarily led the officers into the home. And, after reviewing the record, we conclude that Ms. Webster’s consent was not “borne out of durеss or coercion.” Jones, 701 F.3d at 1320. Although multiple officers arrived at the home, which is a factor we consider in assessing voluntariness, see Harrison, 639 F.3d at 1278, nothing in the record indicates their presence made Ms. Webster consent because she “felt coerced, frightened or otherwise thrеatened,” United States v. Iribe, 11 F.3d 1553, 1557 (10th Cir. 1993).
In sum, Ms. Webster had actual authority to consent to the officers’ entry into the home, she gave implied consent to their entry by leading them into the home, and her consent was voluntary. Accordingly,
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of Mr. White’s motion to suppress.
*