                            In the

United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-3613

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

C HRISTOPHER D ARON H ICKS,
                                            Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
            No. 07 CR 56—J. P. Stadtmueller, Judge.
                        ____________

      A RGUED A PRIL 8, 2008—D ECIDED A UGUST 20, 2008
                        ____________



 Before K ANNE, W ILLIAMS, and T INDER, Circuit Judges.
  T INDER, Circuit Judge. On March 6, 2007, a grand jury
in the Eastern District of Wisconsin returned a two-count
indictment against the defendant, Christopher Hicks,
alleging (1) possession of a firearm by a felon, violating
18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (2) possession of
a firearm not registered to him in the National Firearms
Registration and Transfer Record, violating 26 U.S.C.
§§ 5861(d) and 5871. The firearms had been seized in a
2                                               No. 07-3613

search conducted by Milwaukee police officers. On March
27, 2007, Hicks filed a motion to suppress physical evi-
dence. The magistrate conducted an evidentiary hearing
on April 12, 2007, and recommended on May 1, 2007, that
the motion be denied. Hicks filed his objections to the
recommendation on May 11. The district court adopted
the magistrate’s recommendation and denied the motion
to suppress in an order issued June 1, 2007. Hicks filed a
motion for reconsideration on June 15, 2007. Also on
June 15, the parties filed a plea agreement. On June 18, the
judge denied the motion to reconsider and accepted
Hicks’s guilty plea. The plea reserved the right to appeal
the denial of the motion to suppress. The sentencing
hearing was held on October 18, 2007, where the court
sentenced Hicks to 37 months’ imprisonment to be fol-
lowed by three years’ supervised release and a $100
special assessment. Hicks is now appealing the denial of
his suppression motion.


                 I. Factual Background
  We outline the basic facts here and delve into the specif-
ics below, as necessary, in our analysis. Detective Wayne
Armon of the Milwaukee Police Department was con-
ducting an investigation of a shooting that occurred on
October 11, 2006. On December 24, 2006, Armon asked
Detective Donald Brown to go to Hicks’s flat at 944B North
37th Street, Milwaukee, Wisconsin and instructed Brown
to get consent to search. According to Brown, Armon told
him there was enough to get a warrant, but Brown him-
self did not have knowledge of any facts that would
No. 07-3613                                            3

establish probable cause. In addition to a suspected
connection to the October 11 incident, there were two
municipal warrants for Hicks’s arrest. After establishing
that Hicks’s residence was the upper rear flat of the
duplex, Brown and other officers went up and knocked.
Hicks answered and was immediately handcuffed and
placed under arrest. The officers conducted a protective
sweep and discovered Hicks’s girlfriend, Samella Smith,
and four children, all of whom had been asleep. Smith,
upon request, got clothes for Hicks who was in the
kitchen, and then Smith and the children were told to
wait in the living/dining area. During all of this, Hicks
was upset and vocal, asking why the police were there
and so on. After getting dressed, Hicks was removed
from the residence and taken out to the squad car. At
some point relatively soon thereafter, he was taken down-
town to the police station.
   After Hicks’s removal, Detective Brown sought consent
to search from Smith. Smith resisted, telling Brown that
the police should get a warrant. Brown continued talking
with her and at some point in the conversation, Brown
told her that he could obtain a search warrant, but that
it could take some time. He told her it was Christmas Eve
and that with her cooperation he would not destroy her
house in the search. He also told her he believed there
were guns in the residence with children in the home.
Smith told Brown to “go ahead.” Nevertheless, she refused
to sign a consent statement in his memo book. In the
search, officers found, in Smith and Hicks’s bedroom, a
loaded Smith and Wesson, .40 caliber, semi-automatic
handgun, additional ammunition, and a loaded sawed-off
Mossberg .12 gauge shotgun, with a pistol grip.
4                                                 No. 07-3613

                II. Analysis & Discussion
   Hicks is presently appealing the denial of his motion to
suppress because he believes that the warrantless search
was unlawful. He raises three particular issues: (1) whether
the district court erred in finding that Hicks did not
object to the search and that the removal of Hicks to the
squad car was not intended to prevent him from ob-
jecting to the search; (2) whether the district court erred in
concluding that Smith consented to the search; and (3)
whether the district court erred in determining that the
police had a genuine belief that a warrant could be ob-
tained. We will address each in turn, although they do
overlap considerably. Our review of the legal questions
is de novo and the factual findings for clear error. United
States v. DiModica, 468 F.3d 495, 498 (7th Cir. 2006).
  Hicks argues that his comments (along the lines of “What
are you doing here?”) made to the officers while they
were all in his flat prior to his removal constitute an
objection to the search. He explains that as an overnight
guest his right to object is clearly established, see Minnesota
v. Olson, 495 U.S. 91, 98 (1990), and that as a physically
present co-occupant his stated refusal to permit entry
renders the search invalid as to him, nullifying any con-
sent from Smith, see Georgia v. Randolph, 547 U.S. 103, 109
(2006). In support, he focuses on the following testimony
from Detective Brown:
    Q: He objected to your being present?
    A: Probably did, yes, he did.
The district court, however, concluded otherwise, finding
that “there was no evidence that he objected to a search
No. 07-3613                                                   5

taking place; to be sure, he objected to his arrest and
removal, but he did not specifically object to a search of
the premises.” Hicks disagrees, arguing that it’s more
likely his statements were directed to the police and their
protective sweep, which is a sort of search, and, regardless,
an objection to police presence should be equated to an
objection to a search. He cites a district court case, United
States v. Henderson, No. 04 CR 697, 2006 WL 3469538 (N.D.
Ill., Nov. 29, 2006), rev’d, United States v. Henderson, No. 07-
1014, 2008 WL 3009968 (7th Cir. Aug. 6, 2008), for support.
  We do not agree with Hicks and find that the district
court did not clearly err. At the time of his protestations,
Hicks was being arrested—no officers had even men-
tioned a search to him, and he was not asked to give his
consent at any point. It is likely that many individuals
being arrested are going to object, and many of them
might even be vocal and upset about it. (Especially when
getting arrested in your home, immediately upon
waking, while scantily clad, in front of your girlfriend and
children, on Christmas Eve.) It was reasonable for the
district court to understand his remarks as responsive
to the police who were there arresting him. As a factual
finding, this is only subject to clear error review; it was
not clearly erroneous for the district court to find that
Hicks’s objections were only to his arrest and removal
rather than to the search.
  In contrast, the district court in Henderson found that the
statement “Get the f*** out of my house” “included a
direction that they . . . refrain from searching the resi-
dence.” Henderson, 2006 WL 3469538, at *2; see also United
6                                                No. 07-3613

States v. Henderson, 2008 WL 3009968, at *2 (mentioning
that “the district court reasonably construed [the state-
ment] as an objection to a search”). The district court in
the present case found differently than the court in
Henderson on the particular facts before it, and while it
would not have been precluded as a matter of law from
concluding otherwise, the district court did not clearly
err in finding as it did.
  Alternatively, we also note that even if we had found as
Hicks requests—that his statements amounted to an
express objection to the search — he would still have to
overcome the requirement that one occupant objecting to
the search has to be “physically present” at the relevant
time in order to nullify the other co-occupant’s permission.
See Henderson, 2008 WL 3009968, at *4-9. See Randolph, 547
U.S. at 121-22, where the Court drew a “fine line; if a
potential defendant with self-interest in objecting is in
fact at the door and objects, the co-tenant’s permission
does not suffice for a reasonable search, whereas the
potential objector, nearby but not invited to take part in
threshold colloquy, loses out.” Since Hicks’s alleged
objection took place well before Smith, or anyone, was
approached about consenting to a search, he would not
prevail as he was not “physically present” for the relevant
colloquy. Henderson, 2008 WL 3009968, at *7 (“[W]e see
the contemporaneous presence of the objecting and
consenting cotenants as indispensable to the decision in
Randolph.”); see also Randolph, 547 U.S. at 121-23; DiModica,
468 F.3d at 500; United States v. Hudspeth, 518 F.3d 954, 960-
61 (8th Cir. 2008) (en banc). But see United States v. Murphy,
516 F.3d 1117, 1124 (9th Cir. 2008) (“We hold that when a
No. 07-3613                                                 7

co-tenant objects to a search and another party with
common authority subsequently gives consent to that
search in the absence of the first co-tenant the search is
invalid as to the objecting co-tenant.”).
  Intimately related, and crucial to understanding our
conclusions just discussed, is the question of whether
Hicks was removed from the scene in order to prevent him
from objecting. The Court in Randolph elaborated on the
point quoted supra with the following: “So long as there
is no evidence that the police have removed the
potentially objecting tenant from the entrance for the
sake of avoiding a possible objection, there is practical
value in the simple clarity” of the rule. Randolph, 547 U.S.
at 120; see also United States v. Wilburn, 473 F.3d 742, 745
(7th Cir. 2007). Therefore, if officers remove a potential
objector simply in order to avoid his objection, the
Court suggests that the consent obtained as a result is
invalid. In this case, the district court was correct in
determining that Hicks was not removed “for the sake of
avoiding a possible objection.” The officers removed Hicks
in order to execute an arrest. See Henderson, 2008 WL
3009968, at *8 (“Once he was validly arrested . . . and taken
to jail, however, his objection lost its force, and [his wife]
was free to authorize a search of the home.”); DiModica, 468
F.3d at 500 (“The officers did not remove DiModica to
avoid his objection; they legally arrested DiModica based
on probable cause that he had committed domestic
abuse.”); cf. Wilburn, 473 F.3d at 745 (“Wilburn was validly
arrested . . . and he was lawfully kept in place—the back
seat of a squad car—where people under arrest are
usually held.”). Hicks was not removed so that he would
8                                                No. 07-3613

not object; he was removed because he was being ar-
rested. The district court’s fact finding on this point is not
erroneous, and its legal conclusions are correct.
  The Court in Randolph expressed a preference for clear
lines and a distaste for any unnecessary gray area, thus
we take care to read the law closely and consider the
practical consequences for police. See Randolph, 547 U.S. at
121-23; see also, Wilburn, 473 F.3d at 745. It is most reason-
able to view this scenario as one in which the officers
simply put Hicks into the car and took him away in
order to execute an arrest—that process is simply what
happens when someone gets arrested. If we found other-
wise on these facts, then police might feel they have to
start asking arrestees to clarify whether they object to a
search every single time the police escort an arrestee out to
the car, or every angry arrestee’s ranting words would
necessarily be construed as an objection to a search. Such
an outcome from these facts would be unwise, impractica-
ble, and contrary to established law. Cf. Randolph, 547
U.S. 121-23 (“[W]e think it would needlessly limit the
capacity of the police to respond to ostensibly legitimate
opportunities in the field if we were to hold that reason-
ableness required the police to take affirmative steps to
find a potentially objecting co-tenant before acting on the
permission they had already received.”). The rule in
Randolph is clear, and it simply provides Hicks no relief
in these circumstances.
  To address the second issue Hicks presents for our
review, we narrow in on Samella Smith’s consent. You’ll
recall that following some initial resistance, after several
No. 07-3613                                                 9

minutes talking with Detective Brown, an upset Smith
gave an oral “go ahead” for the search. The government
bears the burden of proving that any consent was freely
and voluntarily given. United States v. Johnson, 495 F.3d 536,
541 (7th Cir. 2007). This is based on the totality of the
circumstances, with established relevant factors in-
cluding the age, education, and intelligence of the con-
senting individual; whether the person was advised of
her constitutional rights; how long the person was de-
tained before giving consent; whether consent was im-
mediate or prompted by repeated requests; whether there
was any physical coercion; and whether the person giving
consent was in custody at the time. Id. at 542.
  Hicks focuses on whether the consent was immediate
or prompted by repeated requests. He argues that as
soon as Smith told the officers to get a warrant, the police
should have left and asks us to infer that the police were
“intent” on “overriding” her refusals. We simply do not
find his arguments on this point convincing. The testi-
mony is that Brown continued talking with Smith some-
where between five and twenty minutes after her initial
refusal. Smith was upset at the time, and some portion of
the conversation was spent discussing Hicks. We find no
error in the district court’s determination that talking to
Brown “was not so lengthy as to nullify her consent, nor
does her initial refusal to consent render the search in-
valid.” This is not a case of the police coercing Smith or
too aggressively seeking her consent.
  Hicks’s argument makes too little of the nature of the
analysis—a consideration of the “totality of the circum-
10                                                No. 07-3613

stances.” His arguments focus on a single factor. Yet Smith
was not detained or under arrest; there was never any
physical coercion. She is a 22-year-old adult, with four
children, who is employed as an officer manager. Her
words to “go ahead” were sufficient to indicate her con-
sent. Therefore, aside from the legal issue we take up
next, we do not find error with the district court’s deter-
mination that Smith’s consent was freely given.
  This leads us to Hicks’s final argument: that because
the government did not show that the police threat to
obtain a warrant was based in fact, the district court
clearly erred when it found, without inquiry, that the
police “had a legitimate belief” that they could obtain a
search warrant. We have held that “[b]aseless threats to
obtain a search warrant may render consent to search
involuntary” and “[w]hen the expressed intention to
obtain a warrant is genuine, . . . and not merely a pretext
to induce submission, it does not vitiate consent to search.”
United States v. White, 979 F.2d 539, 542 (7th Cir. 1992); see
also United States v. Duran, 957 F.2d 499, 502 (7th Cir. 1992).
The district court explained in this case that “the court
does not conclude that there actually was probable cause
to obtain a warrant; the court only determines that Brown
appeared to be acting upon a legitimate belief that a
search warrant could be obtained.” The court found
Brown’s expressed intention to get a warrant genuine
and not a pretext to induce submission, and Smith’s
consent, accordingly, not vitiated.
  We disagree. The district court did not err in its fact
finding per se, but rather took an incorrect view of the
law. The district court interpreted our case law to mean
No. 07-3613                                               11

that if Brown’s statement reflected a legitimate belief, then
the stated intention to get a warrant did not create a
problem with the consent. We do not question the dis-
trict court’s determination that Brown personally believed
what he said. But we find that it was error to evaluate
whether the stated intention to get a warrant was
genuine or pretextual without considering whether the
police actually had the underlying probable cause for the
search.
  Consider: If the police did not have a reasonable basis to
believe there was probable cause then it follows that any
statement, or “threat,” that a search warrant could be
obtained would necessarily be “baseless” and could only
be “merely a pretext to induce submission.” In that case,
the consent may be involuntary. See White, 979 F.2d at
542. Without determining whether there was probable
cause (or a reasonable factual basis to believe there was
probable cause), the court cannot know whether the
statement was baseless or not. For instance, if instead of
sending Detective Brown, Detective Armon himself had
gone to the flat and made the same remark, whether or
not his statement that he could get a warrant was “genu-
ine” would have to turn on whether he had a reasonable
basis for believing there was probable cause. He could not
just refer to some other officer’s representations to him to
establish “genuineness.”
  In this case, the testimony established that Armon
specifically instructed Brown to go to the 944B flat and get
consent to search. Brown also said that Armon told him
there was enough to get a warrant, but Brown admitted
he had no knowledge of any of the facts that would
12                                              No. 07-3613

establish probable cause. If Brown’s mere “belief” in this
case were enough to establish a genuine statement of
intent to obtain a warrant (a “nonbaseless” threat, if you
will), there is nothing to stop one officer from telling
another officer that there is enough to get a warrant
when there really isn’t, just to get consent. In other
words, since an officer on the scene cannot lie to the
occupant that he’s going to go get a warrant when he
knows there isn’t probable cause, then that same lie
cannot be permitted simply because the police compart-
mentalize who knows what. The way to thwart this
potential cat’s-paw-like circumvention of the rule is to
determine whether there was a reasonable factual basis
on which to conclude there was probable cause. This is
consistent with our previous case law. See White, 979
F.2d at 542 & n.1 (finding no evidence that police in-
tended to coerce with an empty threat and noting that
the police obtained a search warrant for another search
of the residence the following day); Duran, 957 F.2d at 502
(finding the threat to obtain a warrant did not vitiate
consent because it was “firmly grounded” and the police
had probable cause); United States v. Talkington, 843 F.2d
1041, 1049 (7th Cir. 1988) (finding consent invalid where
police lied in claiming that they were in the process of
applying for a search warrant).
  We are not suggesting one way or the other as to
what the officers were truly doing in this case; we are just
saying it was error for the district court not to examine
whether there was a factual basis for the police to believe
they had probable cause to get the search warrant. If there
was, then there was a genuine intention to get a warrant
and the statement did not vitiate consent. On the other
No. 07-3613                                                      13

hand, if, on remand, the district court determines the
police had no reasonable factual basis to believe they had
probable cause then there was necessarily a base-
less/pretextual threat that may render Smith’s consent
involuntary. As it stands, the district court failed to
make a determination (and the prosecution did not
present the relevant evidence) on this issue, thus we
must remand.


                        III. Conclusion
  We V ACATE the order denying the defendant’s motion
to suppress and R EMAND to the district court for treat-
ment consistent with this opinion.1




1
   Let us be clear that our instant decision is not a final determi-
nation on the merits of the district court’s denial of Hicks’s
motion to suppress. We anticipate that on remand the gov-
ernment may seek the opportunity to supplement the sup-
pression hearing testimony to address the probable cause
concern we discussed supra. Regardless of whether the hearing
is reopened for this purpose, we expect that the district court
will consider anew whether the expressed intention to obtain a
warrant was genuine or pretextual in light of this opinion, and
then, accounting for its determination on that question, reassess,
under the totality of the circumstances, whether Smith’s consent
was voluntary. If there is a subsequent appeal, it should be
returned to this panel as a successive appeal under Operating
Procedure 6(b).



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