United States District Court, M.D. Florida, Jacksonville Division
REPORT AND RECOMMENDATION 
R. KLINDT UNITED STATES MAGISTRATE JUDGE.
cause is before the Court on Defendant's Amended Motion
to Suppress Fruits of Search of 6680 Bennett Creek Drive,
Apartment 617 (Doc. No. 44; “Motion”), filed
October 26, 2018. The Government filed a response in
opposition to the Motion on November 7, 2018. See
United States' Response to Defendant's Amended Motion
to Suppress (Doc. No. 49; “Response”). An
evidentiary hearing on the Motion was held on November 14,
2018. See Clerk's Minutes (Doc. No. 51;
“Evidentiary Hearing Minutes”); Transcript of
November 14, 2018 Evidentiary Hearing (Doc. No. 57;
“Tr.”), filed December 7, 2018. Thereafter, the
parties filed supplemental memoranda in support of their
respective positions. See Motion to Suppress
Supplemental Memorandum (Doc. No. 63; “Def.'s Supp.
Mem.”), filed December 28, 2018; United States'
Supplemental Memorandum in Response to Defendant's Motion
to Suppress (Doc. No. 64; “Govt.'s Supp.
Mem.”), filed January 17, 2019.
was charged on January 31, 2018 in a one-count indictment
with possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
See Indictment (Doc. No. 1). On the same date, the
Government filed a Motion for Capias (Doc. No. 2) that the
Court granted. See Order (Doc. No. 3), entered
January 31, 2018. On June 5, 2018, a Writ of Habeas Corpus Ad
Prosequendum (Doc. No. 7) was issued. On June 18, 2018,
Defendant made his initial appearance and was arraigned.
See Clerk's Minutes (Doc. No. 9). He pleaded not
guilty. Id. On September 4, 2018, Defendant filed a
Motion to Suppress (Doc. No. 23; “Original
Motion”). The Government filed its Response to
Defendant's Motion to Suppress (Doc. No. 29) on September
20, 2018. The undersigned held a status hearing on September
24, 2018 at which Defendant was present. See
Clerk's Minutes (Doc. No. 31). At that hearing, an
evidentiary hearing on the Original Motion was scheduled for
October 11, 2018. See id.; Notice of Hearing (Doc.
No. 32), entered September 24, 2018. On October 9, 2018,
Defendant filed an Unopposed Motion to Continue Motion to
Suppress Hearing Set for October 11, 2018 (Doc. No. 39) that
the undersigned granted. See Order (Doc. No. 40),
entered October 10, 2018. As a result, a status hearing was
scheduled for October 11, 2018 in place of the suppression
hearing. See Order (Doc. No. 40).
the October 11, 2018 status hearing, at which Defendant was
present, counsel for Defendant represented that Defendant
intended to file an amended motion to suppress. See
Clerk's Minutes (Doc. No. 41). The undersigned entered an
Order (Doc. No. 42) directing Defendant to file the amended
motion to suppress no later than October 26, 2018.
the instant Motion and Response were filed, the evidentiary
hearing was held, and the supplemental memoranda were filed.
The Court heard oral argument on February 20, 2019.
See Clerk's Minutes (Doc. No. 69); Transcript of
Oral Argument (Doc. No. 70; “OA Tr.”), filed
February 22, 2019. At oral argument, Defendant raised an
alternative ground for suppression relying mainly on
United States v. Hernandez-Penaloza, 899 F.Supp.2d
1269 (M.D. Fla. 2012). See Tr. at 42-48.
light of this new ground for suppression, the Court directed
the parties to submit supplemental memoranda addressing
Hernandez-Penaloza. See Clerk's Minutes
(Doc. No. 69); OA Tr. at 92. On March 7, 2019, the Government
filed its Supplemental Memorandum (Doc. No. 78). On March 29,
2019, Defendant filed a memorandum in response. See
Defendant's Memorandum in Response to Government's
Supplemental Memorandum (Doc. No. 83). The Motion is now ripe
Summary of Issues and Recommendation
case involves a January 16, 2018 warrantless search of the
apartment (“the Apartment”) of Carllisa Williams,
with whom Defendant was in a casual relationship at the time.
On that date, law enforcement arrived at the Apartment to
execute a state arrest warrant for Defendant. After Defendant
was arrested, law enforcement searched the Apartment and
found a number of items allegedly belonging to Defendant,
including a firearm, ammunition, and illegal drugs. The
search was based solely on Ms. Williams's consent, which
was given after she and Defendant exited the Apartment.
Motion, Defendant seeks to suppress all evidence obtained
from the search, contending it violated the Fourth Amendment
because Ms. Williams's consent was not given voluntarily.
Alternatively, relying on Hernandez-Penaloza,
counsel for Defendant asserted at oral argument that Ms.
Williams was illegally detained because the officers did not
have the authority to order her out of the Apartment without
a search warrant. OA Tr. at 43-44. Counsel also suggested
that the officers did not have the authority to order
Defendant out of the Apartment to arrest him without a search
warrant. OA Tr. at 44. Thus, argued counsel, the illegal
seizures tainted Ms. Williams's consent. OA Tr. at
Government first challenges Defendant's standing to
contest the search. As to the voluntariness of the consent,
the Government argues that the testimony of the law
enforcement officers should be credited over Ms.
Williams's, which, according to the Government, would
support a finding that Ms. Williams's consent was
voluntary. As to Defendant's alternative ground for
suppression, the Government contends that Ms. Williams was
not illegally detained because she was not coerced to exit
the Apartment and that the officers lawfully arrested
Defendant at the Apartment because they reasonably believed
he was present at the Apartment.
initial matter, the undersigned concludes that Defendant has
standing to challenge the search of the Apartment. Regarding
Ms. Williams's consent, the undersigned finds that it was
not voluntary. In making the voluntariness finding, various
portions of the testimony of the law enforcement officers are
discredited and Ms. Williams's testimony is credited in
all material respects. As to the parties' arguments
regarding Hernandez-Penaloza, they are more
appropriately addressed in relation to Defendant's Motion
to Suppress Evidence Recovered Through Tracking of Cellular
Telephone Based upon a Defective Warrant (Doc. No. 81;
“Second Motion to Suppress”), filed March 21,
Evidentiary Hearing/Findings of Fact
Government presented five witnesses during the evidentiary
hearing: Michelle Wooden; Sergeant Matthew
Doherty; Detective Isaiah Fields; Officer
Christopher Bailey; and Ms. Williams. In addition, the
Government submitted seven exhibits that were received into
evidence with no objection from Defendant. See
Evidentiary Hearing Minutes at 2. Defendant presented no
witnesses and submitted no exhibits. See id.
credibility of Ms. Williams and the law enforcement officers
is at the heart of the voluntariness issue. A detailed
discussion of that testimony is necessary to determine
whether Ms. Williams's consent was voluntarily given. For
ease of discussion and by way of background, the undersigned
initially summarizes Ms. Williams's testimony regarding
her relationship with Defendant at the time of the search.
Then, the witnesses' testimony on the circumstances
surrounding the arrest of Defendant, Ms. Williams's
consent to search the Apartment, and the search of the
Apartment is set out.
Ms. Williams's Testimony Regarding Relationship with
Williams met Defendant on Facebook a “couple [of]
months” before the day of the search. Tr. at 190;
see also Tr. at 190 (confirming she met Defendant a
“few” months before the day of the search).
Defendant began going to the Apartment in November 2017,
about two months before the day of the search. Tr. at 190. He
did not live with Ms. Williams. Tr. at 192. Only Ms. Williams
lived at the Apartment. Tr. at 186. Defendant did not have a
key to the Apartment, he did not pay rent, he did not receive
mail at the Apartment, and he did not pay for utilities. Tr.
at 193, 195. He went to the Apartment only when Ms. Williams
was there to let him in. Tr. at 195-96.
visited Ms. Williams at the Apartment a “couple nights
out of the week.” Tr. at 192. He sometimes went there
during the day, and he communicated with Ms. Williams via
telephone beforehand. Tr. at 193. “Sometimes he would
stay the night; sometimes he would leave.” Tr. at 193.
Some days, if Defendant spent the night at the Apartment and
Ms. Williams had to go to work in the morning, she would
leave Defendant a key so he could put it under the mat for
her when she came back from work. Tr. at 194. Defendant could
not have visitors at the Apartment when Ms. Williams was not
there. Tr. at 196-97. Defendant did not usually bring clothes
with him when he spent the night. Tr. at 200. He kept a
“few items” at the Apartment, “but not
many.” Tr. at 200. Ms. Williams specified it was
“[p]robably a shirt or pants, something.” Tr. at
200. Defendant kept no toiletries at the Apartment. Tr. at
200-01. He used one of Ms. Williams's “extra
toothbrushes.” Tr. at 201.
went to the Apartment about 10:00 PM or 11:00 PM the night
before the day of the search. Tr. at 196. He did not bring a
change of clothes that night. Tr. at 200. He spent the night
at the Apartment and was still there when law enforcement
officers arrived the next morning. Tr. at 196.
The Arrest, Consent to Search, and Search
October 9, 2017, a state circuit judge issued an arrest
warrant for Defendant based on Defendant's alleged
violations of his conditions of probation. Tr. at 32;
see Govt.'s Ex. 1B (Doc. No. 51-3) (arrest
warrant). That warrant was recalled because two of the
offenses for which Defendant was on probation (Counts III and
IV) were incorrect on the warrant. Tr. at 38-41. An amended
arrest warrant was then issued on December 11, 2017 with the
correct alleged violations. See Tr. at 42;
Govt.'s Ex. 2B (Doc. No. 51-5) (amended arrest warrant).
December 2017 or early January 2018, Detective Fields
listened to a jail telephone call between an inmate and
Defendant. Tr. at 119-20. Listening to jail calls is a way
for detectives to “gain intelligence.” Tr. at
119. Detective Fields decided to “check[ ] on
[Defendant, ] and [he] observed he had a warrant in the
system.” Tr. at 119. After that, Detective Fields began
to “put together information” about Defendant,
“where to find him” and “how to track
him.” Tr. at 119. Detective Fields did not check the
specifics of the arrest warrant, but he “knew it was
for violation of probation . . . .” Tr. at 149.
morning of January 16, 2018, Detective Fields was informed of
Defendant's location by the Florida Department of Law
Enforcement (“FDLE”). Tr. at 151-52.
Defendant's location was determined via electronic
surveillance. Tr. at 150. Because Detective Fields was aware
of Defendant's criminal history and because he believed
Defendant was a gang member, carried a gun, and had been
involved in shootings, Detective Fields “recognized
this would be a job for the SWAT team, the criminal
apprehension team, to help in apprehending him.” Tr. at
121-22. Detective Fields testified that the gang unit calls a
SWAT team “[o]nly on high-profile, high-risk”
gang members. Tr. at 143-44. On that day, January 16, 2018,
Detective Fields spoke with Sergeant Doherty and asked for
the SWAT unit's assistance in arresting Defendant. Tr. at
122 (Detective Fields's testimony); Tr. at 76-77
(Sergeant Doherty's testimony). According to Detective
Fields, he relayed to the SWAT unit the information he had
gathered on Defendant, including that Defendant was a gang
member and possessed firearms. Tr. at 123.
Doherty testified he was “not familiar with the
particulars of the case that led [them] there; only that [the
SWAT unit was] notified [its] assistance was required.”
Tr. at 97. According to Sergeant Doherty, Detective Fields
informed him that Defendant had previously been “listed
as” a person of interest in a homicide. Tr. at 99-100.
Sergeant Doherty was notified of the basis for the arrest
warrant, but he did not recall “the specifics of
it.” Tr. at 96. He knew Defendant was on probation at
the time, but he did not know “the specifics” of
that either. Tr. at 97. Sergeant Doherty testified that
Defendant's arrest was considered a high-risk arrest for
several reasons, including Defendant's criminal history,
that he was known to be armed, and that he was a person of
interest in a homicide. Tr. at 97-98.
speaking with Detective Fields, Sergeant Doherty
“gathered up multiple different detectives from
different squads that [were working] on the same day”
to form the team that would assist in arresting Defendant.
Tr. at 76-77. Once the SWAT team was selected and organized,
Detective Fields informed its members that Defendant was in
an apartment at 6680 Bennett Creek Drive, Jacksonville,
Florida. Tr. at 80; see Motion at Ex. A (Doc. No.
44-1) (arrest and booking report indicating the
Apartment's address). Sergeant Doherty knew that this was
not Defendant's address and that Defendant resided
elsewhere. Tr. at 101.
Doherty and the SWAT team deployed to the apartment complex.
Tr. at 78. They “set up a perimeter” around the
area where they believed Defendant was located. Tr. at 78;
see also Tr. at 80-81. The uniform for the SWAT team
consists of “jeans and a T-shirt, ” but when a
team goes to a scene, they “don a black vest with
‘Police' markings on the front and back.” Tr.
at 95-96; see also Tr. at 111. The vest
“typically has a magazine or two on the front with a
radio pouch, a gun belt, a pistol, extra magazines,
handcuffs, [a] Taser, and then a slung rifle.” Tr. at
96. The rifle is a “variant of the AR-15, ” and
it is semiautomatic. Tr. at 96. According to Sergeant
Doherty, “probably” ten or fifteen SWAT members
participated in the arrest. Tr. at 78; see also Tr.
at 96, 152-53. Detective Fields testified he believed there
were only two sergeants there that day: Sergeant Doherty and
Sergeant Billy Irvin. Tr. at 124.
Doherty testified that after determining the specific
apartment where Defendant was located, Sergeant Irvin and
“a group of SWAT operators set up an apprehension unit
down the hallway from the [A]partment.” Tr. at 78.
According to Sergeant Doherty, the apprehension unit
consisted of four to five officers. Tr. at 110. These
officers had “[t]heir pistols . . . in their holsters
and they ha[d] their hands on the rifles.” Tr. at 109.
They held their rifles in a “low ready” position,
pointing the barrel down to the ground at a forty-five-degree
angle, so they could see any person exiting the Apartment and
ensure the person was not armed. Tr. at 108-11.
Fields stated he was in an unmarked unit and “stayed
parked near the front office [of the apartment complex],
which would be more like an outer perimeter . . . .”
Tr. at 124-25. According to Detective Fields, there were
“one or two unmarked units” in his vicinity. Tr.
at 125. Officer Bailey stated he was in a marked unit with
“a few other units, ” and they “functioned
as an outer perimeter of the outside of the apartment complex
over off Bennett Creek.” Tr. at 169.
Fields contacted the manager of the apartment complex and
asked her for information on the person living in the
Apartment. Tr. at 123-24. The manager told him the Apartment
was rented by Ms. Williams. Tr. at 123-24. Detective Fields
“asked [the manager] if she minded giving [them] a
phone number so [they] could contact [Ms. Williams], ”
and the manager gave him Ms. Williams's cellphone number.
Tr. at 124. Detective Fields then “passed [the phone
number] on [the] radio channel to the SWAT unit.” Tr.
at 124; see also Tr. at 82, 165-66.
Doherty's testimony regarding how Ms. Williams was asked
to exit the Apartment was somewhat contradicted by both
Detective Fields's and Ms. Williams's testimony.
Sergeant Doherty testified that Sergeant Irvin and the
apprehension unit “called out to the [A]partment
through the breezeway.” Tr. at 82; see Tr. at
81. According to Sergeant Doherty, this was done “by
voice” and no public address (“PA”) system
was used. Tr. at 82-83. Detective Fields testified he assumed
they contacted Ms. Williams by phone because he had gotten
her phone number from the apartment complex manager. Tr. at
166-67. Ms. Williams stated that at about 11:30 AM or 12:00
PM, a sergeant (apparently Sergeant Doherty) called her
cellphone, told her there was a suspect in the Apartment, and
asked her to exit. Tr. at 187-88. Ms. Williams testified
she looked outside her window and saw “guns pointed at
the [Apartment].” Tr. at 215-16.
Ms. Williams exited the Apartment. Tr. at 83. According to
Ms. Williams, the officers had “[b]ig guns.” Tr.
at 219. Sergeant Doherty testified that when Ms. Williams
exited the Apartment, the members of the apprehension unit
were holding their rifles in a low ready position. Tr. at
108-11. One member of the apprehension unit “walked
[Ms. Williams] over to [him].” Tr. at 83, 114. Sergeant
Doherty testified that Ms. Williams was not handcuffed, but
she was not free to go. Tr. at 114. Sergeant Doherty asked
Ms. Williams whether Defendant was in the Apartment, and she
said he was. Tr. at 83. Sergeant Doherty then explained to
Ms. Williams that Defendant had a “felony warrant for
his arrest, ” and according to Sergeant Doherty, she
“was obviously unaware of that.” Tr. at 83. He
also asked her whether there were any firearms, other people
besides Defendant, or animals in the Apartment. Tr. at 89;
see also Tr. at 94. Ms. Williams told him that her
personal firearm was in the Apartment. Tr. at
89-90. She described the firearm and its
location. Tr. at 89-90. Ms. Williams also stated there was no
one in the Apartment other than Defendant. Tr. at 89.
Sergeant Doherty testified that “at some point”
during this conversation, Ms. Williams “might have
gotten a phone call, ” but Sergeant Doherty
“asked her to hang up the phone because [he] was busy
talking to her about what was going on inside.” Tr. at
to Sergeant Doherty, Defendant then called Ms. Williams's
cellphone while she and Sergeant Doherty were talking. Tr. at
83-84. Sergeant Doherty asked Ms. Williams for the cellphone,
and she gave it to him. Tr. at 84. Sergeant Doherty told
Defendant over the phone, “I'm Sergeant Doherty
with the [JSO] SWAT team. You have a felony warrant for your
arrest. You have five minutes to exit the structure[, ] and
I'll guarantee your safety.” Tr. at 84. Sergeant
Doherty gave him this instruction because Defendant had a
warrant for his arrest and because Sergeant Doherty was aware
that Defendant “was known to be armed” and that
at some point “he was a person of interest in a
homicide.” Tr. at 86. The other law enforcement
officers on the scene also knew this information. Tr. at 86.
Sergeant Doherty's testimony regarding how Defendant was
directed to exit the Apartment is inconsistent with both
Detective Fields's and Ms. Williams's testimony. Ms.
Williams testified that when she met with Sergeant Doherty,
he asked her if Defendant was in the Apartment, and when she
responded that he was, Sergeant Doherty “called him out
on the bullhorn.” Tr. at 198. According to Ms.
Williams, Sergeant Doherty used the name “Marlow”
(apparently Defendant's “Facebook name”) to
call him. Tr. at 199. Detective Fields also testified that
from “what [he] could hear” from his vehicle, he
thought they used the PA system to call out Defendant. Tr. at
164, 166. Neither of them testified that Defendant was asked
on the phone to exit.
Sergeant Doherty waited for Defendant to exit, he and the
other SWAT officers had their pistols in holsters and their
rifles slung across their bodies. Tr. at 88. Sergeant Doherty
testified this is standard procedure for executing a felony
arrest warrant when individuals with a background like
Defendant's are involved. Tr. at 88.
Williams testified that while Sergeant Doherty was calling
Defendant on the bullhorn, she was “sitting on the side
of the curb.” Tr. at 199; see also Tr. at 198.
Ms. Williams talked on the phone with her cousin and her
mother while she was sitting there. Tr. at 199. Ms. Williams
first called her cousin to ask her to come to the scene
because she lived nearby. Tr. at 200. Ms. Williams then
called her mother to talk to her about what was happening.
Tr. at 200.
Doherty did not recall Ms. Williams's specific location
while the officers were waiting for Defendant to exit the
Apartment, but he stated Detective Fields was “standing
with her.” Tr. at 87. Sergeant Doherty
testified that within “a matter of minutes” after
he spoke with Defendant on the phone, Defendant exited the
Apartment, Tr. at 87, and was “received by the
apprehension squad, ” Tr. at 88-89.
Officer Bailey was informed that Defendant had been arrested,
he and “the other marked units that were on the
exterior went into the apartment complex . . . .” Tr.
at 169-70. Officer Bailey stated that once they arrived,
Defendant was placed in one of their marked units. Tr. at
Williams credibly testified as follows regarding how she was
asked for her consent to search the Apartment. She stated
that “someone mentioned about searching the
[A]partment, ” but she did not recall who it was. Tr.
at 201. (It was likely Sergeant Doherty because Ms. Williams
later testified that she believed this officer “was the
sergeant.” Tr. at 204.) She stated there were other
officers around her when she was speaking with that sergeant.
Tr. at 203-04. She asked the sergeant why they needed to
search the Apartment. Tr. at 202. While she was on the phone
with her mother, the sergeant was calmly trying to explain to
her the need for the search, but she did not recall what he
said. Tr. at 202, 226.
Williams consistently testified on direct examination, on
cross examination, and again on redirect examination, that
Officer Bailey interrupted the sergeant when he was trying to
explain to her why they needed to search the Apartment and
that Officer Bailey became “irate.” Tr. at 202,
204, 206, 218, 226. According to Ms. Williams, Officer
Bailey yelled at her, “Oh, if you don't let me
search, everything in the house is going to be charged with
you. You're an adult. You can make your own
decision.” Tr. at 205; see also Tr. at 206
(testifying again, “[Officer Bailey] became irate, was
like, you know, ‘You're grown. You can make your
own decisions. If you don't let us search your
house,' you know, blah, blah, blah”); Tr. at 202
(testifying Officer Bailey was “yelling, saying . . .
‘We need to search [the A]partment. If you don't
let us search [the A]partment . . . this is going to happen
to you,' that kind of thing”). Ms. Williams
testified Officer Bailey was “kind of like screaming
and . . . trying to initiate the search.” Tr. at 204.
On cross examination, she confirmed that Officer Bailey also
yelled at her, “I'm tired of you playing
games.” Tr. at 216. Ms. Williams stated
“they” were “yelling in the background,
telling [her] to get off the phone.” Tr. at 202.
Williams did not recall whether Officer Bailey or any other
officer said that if she did not consent, they would get a
search warrant. Tr. at 216-17. Ms. Williams testified she did
not feel free to leave or like she could discontinue the
conversation with the officers. Tr. at 227. According to Ms.
Williams, Detective Fields was not in the area at that time.
Tr. at 218. She did not recall how many officers were around.
Tr. at 218. Ms. Williams testified that the officers
“had guns, but [she did not] believe it was like, you
know, pointing -- like ‘Hands up,' like
that.” Tr. at 222.
the telephone conversation with her mother, Ms. Williams
testified she spoke “very briefly” with her
mother about what was happening. Tr. at 202. Ms. Williams
testified her mother heard the “commotion in the
background[, ] and she could tell that [Ms. Williams] was
nervous, so she said . . . ‘Just let them search. You
don't have anything to hide, so let them go ahead and
search.'” Tr. at 202.
to Ms. Williams, she had “never really dealt with this
so [she] didn't know what to do . . . .” Tr. at
205. She had never had an interaction with law enforcement
like the one she had on that day. Tr. at 201, 205. She had
never been in criminal trouble before. Tr. at 214. She was
embarrassed and humiliated that her neighbors were hearing
and seeing what was happening. Tr. at 219. Ms. Williams felt
pressured, and she testified that the situation was
“[v]ery stressful.” Tr. at 205. She knew
Defendant had marijuana in the Apartment. Tr. at 214. She
testified she was “sure there would have been some
disciplinary action” from her employer had she been
charged with possession of marijuana. Tr. at 214. According
to Ms. Williams, she could risk losing her nursing license if
she were convicted of a drug crime. Tr. at 214.
Williams testified that “once [Officer Bailey] started
yelling and everything, ” she was nervous and did not
“really know what to do[, ] so [she] just said,
‘Go ahead and search.'” Tr. at 204. Notably,
Ms. Williams testified consistently (on direct examination,
on cross examination, and again on redirect examination) that
it was only after Officer Bailey yelled at and threatened her
that she told the officers to “go ahead and
search.” Tr. at 202, 204, 206-07, 218, 226; see
also Tr. at 208. When the Court asked Ms. Williams
whether she consented at the point when Officer Bailey was
yelling at and threatening her, Ms. Williams said,
“[Y]es, because, I mean, he made me feel as though I
had to.” Tr. at 225. She explained, “[O]bviously
I was taking too long for him to agree to consent for them to
search, and so that's when he became irate and
everything, and that's when I was like, ‘Just go
ahead and search the [A]partment.'” Tr. at 226;
see also Tr. at 205 (testifying, “I'm
guessing I was taking too long to give them consent to
search, so he began yelling, saying, ‘Oh, if you
don't let me search, everything in the house is going to
be charged with you. You're an adult. You can make your
own decision'”). Ms. Williams specified no
particular area in the Apartment they could search, she
“just said search.” Tr. at 207. On redirect
examination, Ms. Williams confirmed that aside from Officer
Bailey's hostile tone and threat, the other officers
spoke to her in a “calm tone of voice.” Tr. at
Government asserts that “after discussing it with her
mother, [Ms. Williams] said, ‘Go ahead and
search.'” Govt.'s Supp. Mem. at 16. This is not
necessarily a complete and accurate portrayal of what
happened. As noted above, Ms. Williams spoke “very
briefly” with her mother, who told her to let the
officers search because Ms. Williams had nothing to hide. Tr.
at 202. The testimony at the hearing did not indicate that
Ms. Williams had any meaningful discussion with her mother.
Ms. Williams did not consent because she was following her
mother's advice; rather, Ms. Williams's testimony
shows it was only after Officer Bailey threatened, yelled at,
and pressured her that she told the officers to just
“go ahead and search.” See Tr. at 202,
204, 206-07, 218, 226. Moreover, contrary to the mother's
impression when giving the advice, Ms. Williams did
have something to hide: Defendant's marijuana, which
Officer Bailey essentially threatened would be used to charge
her when he said, “[I]f you don't let me search,
everything in the house is going to be charged with
you.” Tr. at 205. Ms. Williams's mother was
evidently unaware of this, perhaps because of Officer
Bailey's yelling and the officers telling Ms. Williams to
hang up the phone, Tr. at 202, preventing Ms. Williams from
having any meaningful discussion with her mother about the
stark contrast to Ms. Williams's candid, coherent,
detailed, and unwavering testimony about the consent
conversation, Sergeant Doherty's testimony was hesitant
and disjointed; he did not appear to have a good recollection
of that part of the conversation he had with Ms. Williams.
Toward the end of Sergeant Doherty's direct testimony
about his encounter with Ms. Williams, and before he
mentioned anything about the consent part of the
conversation, he was asked whether he had any further
conversation with Ms. Williams after Defendant was taken into
custody, and he responded, “If I did, it wasn't
anything detailed that I would remember.” Tr. at 89.
Then he said, “I'm sorry. I take that back, ”
and he proceeded to testify that he asked Ms. Williams
whether there were any firearms, other people, or animals in
the Apartment, questions that he then indicated were asked
before Defendant was directed to exit the Apartment.
See Tr. at 89, 94.
Doherty did not mention, and appeared not to recall, the
consent conversation until the Government prompted his
recollection by specifically asking him whether he
“ha[d] any conversation with Ms. Williams about whether
or not she would allow law enforcement to search [the
A]partment[.]” Tr. at 90. He responded,
“Yes.” Tr. at 90. When asked to elaborate on the
conversation, he responded, “I asked her if she minded
if we looked in the [A]partment, or searched the [A]partment.
She said no. And then at that point I believe she was --
Detective Fields took over with her and they started working
on a consent to search form.” Tr. at 90. Sergeant
Doherty testified he asked Ms. Williams for her consent to
search after Defendant had exited and been placed in the
marked patrol car. Tr. at 94; see also Tr. at 90-91.
When asked whether he informed Ms. Williams that she had a
right to refuse consent to the search, Sergeant Doherty
testified, “I don't remember the specific
conversation. I think I just asked her if we could look in
the [A]partment.” Tr. at 105. Sergeant Doherty stated
he did not ask Ms. Williams if he could search for anything
specific. Tr. at 105-06.
Bailey was not confronted with and did not testify about Ms.
Williams's accusation that he interrupted Sergeant
Doherty and yelled at and threatened her to obtain verbal
consent. Although it is now known that the officer
who yelled at and threatened Ms. Williams was Officer Bailey,
the Court and counsel for Defendant were not made aware of
this until Ms. Williams testified (after all the officers had
testified). Upon questioning by the Court,
Sergeant Doherty testified he (Sergeant Doherty) did not tell
Ms. Williams that if she did not consent, he would search
anyway; he did not tell her he could or would get a search
warrant if she did not consent; he did not tell her anything
to the effect that if she did not consent, he would charge
her with everything he found in the Apartment; he did not
tell her he was tired of playing games with her (nor did he
hear any officers say anything to that effect); and he heard
no officer yell or talk to Ms. Williams in an intimidating
voice (as noted below, the undersigned discredits Sergeant
Doherty's testimony on this last point). Tr. at 114-16.
Doherty testified he and Ms. Williams were using
“[j]ust [a] conversational tone” when he asked
for her consent to search. Tr. at 91; see also Tr.
at 116. In describing Ms. Williams's demeanor, Sergeant
Doherty explained that “she was a little shaken and
upset about what was going on, and rightfully so.” Tr.
at 91. He said she was coherent, “[b]ut she just seemed
upset about the event, that the SWAT team was knocking on her
door.” Tr. at 91. He indicated that Ms. Williams
“[a]bsolutely” seemed to understand his request
to search the Apartment. Tr. at 91. Sergeant Doherty thought
Ms. Williams “was in a situation that she was surprised
she found herself in and she was cooperative.” Tr. at
Fields testified that he “started making [his] way
towards the scene” once he was informed that Defendant
had been arrested. Tr. at 126. Defendant was already in a
patrol vehicle when Detective Fields arrived at the scene.
Tr. at 127. When Detective Fields did arrive, he walked over
to where he “saw the sergeant standing and Ms. Williams
standing, ” and Sergeant Doherty informed him he had
obtained verbal consent to search the Apartment from Ms.
Williams. Tr. at 126-27, 153. Detective Fields acknowledged
he did not have probable cause to search the Apartment. Tr.
at 153. Detective Fields testified that he did not witness
the consent conversation between Sergeant Doherty and Ms.
Williams, and he did not know how many officers were around
Ms. Williams during that conversation. Tr. at 153, 155-56.
Detective Fields did not know whether any voices were raised
during this conversation. Tr. at 156. He testified no one
made any threats in his presence. Tr. at 156.
Fields described the scene as follows:
It was -- well, in my opinion, it was casual, a normal -- a
normal police scene, people walking coming and going, no --
you know, no one was in a hurry to do anything. It wasn't
an active situation where, you know, it was dangerous, so
people were just, you know, nonchalantly walking around.
Tr. at 127. Detective Fields stated there were about ten to
fifteen officers, and they were all armed. Tr. at 152-53. He
testified Ms. Williams was wearing “a T-shirt and a
pair of shorts, like ladies' short-shorts that they wear
for comfort to bed.” Tr. at 165.
Detective Fields did speak with Ms. Williams while she was
sitting on a curb. Tr. at 127-28. Ms. Williams was
cooperative. Tr. at 159. Detective Fields told Ms. Williams
that “the reason why all the big presence of the police
was there” was that Defendant was a gang member and had
“active warrants.” Tr. at 128. He told her he was
going to search the Apartment based on her consent. Tr. at
131-33; see also Tr. at 128. Ms. Williams said
nothing in response. Tr. at 128. Detective Fields testified
that “she was open to” the search and that she
had no questions. Tr. at 130. He did not advise Ms. Williams
she had a right to refuse to consent to the search. Tr. at
153. According to Detective Fields, Ms. Williams told ...