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United States v. Powell

United States District Court, M.D. Florida, Jacksonville Division

July 16, 2019

UNITED STATES OF AMERICA
v.
DONJUAN POWELL

          REPORT AND RECOMMENDATION [1]

          JAMES R. KLINDT UNITED STATES MAGISTRATE JUDGE.

         I. Status

         This 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.

         II. Procedural Background

         Defendant 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).

         During 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.

         Thereafter, 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.

         In 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 for consideration.

         III. Summary of Issues and Recommendation

         This 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.

         In the 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 43-45.[2]

         The 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.

         As an 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, 2019.[3]

         IV. Evidentiary Hearing/Findings of Fact [4]

         The Government presented five witnesses during the evidentiary hearing: Michelle Wooden;[5] Sergeant Matthew Doherty;[6] Detective Isaiah Fields;[7] Officer Christopher Bailey;[8] and Ms. Williams.[9] 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.

         The 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.

         A. Ms. Williams's Testimony Regarding Relationship with Defendant

         Ms. 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.

         Defendant 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.

         Defendant 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.

         B. The Arrest, Consent to Search, and Search

         On 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).

         In late 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.

         On the 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.

         Sergeant 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.

         After 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.

         Sergeant 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.

         Sergeant 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.

         Detective 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.

         Detective 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.

         Sergeant 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.[10] Ms. Williams testified she looked outside her window and saw “guns pointed at the [Apartment].” Tr. at 215-16.

         Thereafter, 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.[11] 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 115.[12]

         According 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.

         Again, 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.

         While 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.

         Ms. 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.

         Sergeant 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.[13] 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.

         When 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 170.

         Ms. 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.

         Ms. 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.[14] 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.

         Ms. 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.

         As to 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.

         According 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.

         Ms. 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 222.

         The 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 situation.

         In 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.

         Sergeant 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.

         Officer 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).[15] 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.

         Sergeant 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 116.

         Detective 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.

         Detective 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.

         Eventually, 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 ...


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