                      NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 File Name: 07a0498n.06
                                   Filed: July 16, 2007

                                                   Case No. 06-1835

                                  UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                 )
                                          )
      Plaintiff-Appellee,                 )                                 ON APPEAL FROM THE
                                          )                                 UNITED STATES DISTRICT
             v.                           )                                 COURT FOR THE EASTERN
                                          )                                 DISTRICT OF MICHIGAN
KEITH EARL EDGERSON,                      )
                                          )
      Defendant-Appellant.                )
                                          )
________________________________________ )

BEFORE: BATCHELDER and COLE, Circuit Judges; PHILLIPS,* District Judge.

         ALICE M. BATCHELDER, Circuit Judge.                               On April 14, 2005, Keith Edgerson

voluntarily surrendered to Detroit police outside the apartment of his girlfriend, Torrina Manley,

where he had been staying for at least two weeks. Officers arrived at the apartment on a tip that

Edgerson was armed and had been dealing marijuana. They knocked at the door and, after a delay

of 25 minutes, Edgerson exited the house with two other men. The police determined that none was

armed or carried any contraband, and arrested Edgerson pursuant to a warrant.

         The police then made a brief warrantless entry into the home under the auspices of a

“protective sweep.” Approximately 25 minutes later, Ms. Manley arrived and identified herself as

the sole leaseholder. She signed a handwritten “consent to search” at the scene, and minutes later

signed another, this time on an official form. At the time she gave consent, Ms. Manley did not

         *
             The Honorable Thomas W. Phillips, United States District Judge for the Eastern District of Tennessee, sitting
by designation .
know that the protective sweep had occurred, although she could see that Edgerson had been

arrested.

       The subsequent search revealed 288.1 grams of marijuana, and Edgerson directed police to

a handgun hidden under the stove. The federal grand jury indicted Edgerson for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g); possession of a stolen firearm, in

violation of 18 U.S.C. § 922(j); possession of marijuana with intent to distribute, in violation of 21

U.S.C. § 841(a)(1); and possession of a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c). Edgerson filed a motion to suppress, claiming that the police

performed the search and seizure at the apartment without a warrant or valid consent, and therefore

violated his Fourth Amendment rights.

       At the evidentiary hearing, the district court found the police testimony credible and

“remain[ed] unpersuaded” by Manley’s affidavit that the police had intimidated her into giving

consent. The court therefore denied the motion. Edgerson pleaded guilty to all counts, reserving his

right to appeal the denial of his motion to suppress. We review the district court’s legal

determinations de novo, but examine “findings of historical fact only for clear error and [] give due

weight to inferences drawn from those facts by resident judges and local law enforcement officers.”

Ornelas v. United States, 517 U.S. 690, 699 (1996).

       A protective sweep of a residence, conducted after an arrest has been made outside the

residence, is justified only if the officers can demonstrate an articulable basis for their reasonable

belief “that someone else inside the house might pose a danger to them.” United States v. Colbert,

76 F.3d 773, 777 (6th Cir. 1996). Here, the government contends that the police had an articulable

fear because one officer saw movement inside the house before Edgerson surrendered and because


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the tip contained information that Edgerson was armed. The dangerousness of an individual already

in custody, however, “is not germane to the inquiry whether the police may conduct a protective

sweep.” Id. Consequently, the government has not demonstrated any articulable facts that would

lead to the rational inference of a threat after Edgerson had surrendered, unarmed. See id.; Maryland

v. Buie, 494 U.S. 325, 334 (1990). We therefore disagree with the district court’s conclusion that

the initial “protective sweep” was lawful, and must consider the effect of Ms. Manley’s consent.

       When the prosecution seeks to justify a warrantless search with proof of voluntary consent,

it need not demonstrate that the defendant gave consent if it can show that a co-tenant with “[her]

own right” to permit the inspection consented to the search, and no present co-tenant objects. United

States v. Matlock, 415 U.S. 164, 171-72 (1974). Like the defendant in Matlock, Edgerson was in

custody, and was not present when Ms. Manley gave her consent. Edgerson argues that the taint of

the initial illegal entry invalidates Ms. Manley’s consent. See United States v. Buchanan, 904 F.2d

349, 355-56 (6th Cir. 1990). Although the protective sweep was unlawful, Ms. Manley was not

aware that it had occurred when she gave her consent, and she was not facing arrest herself.

Moreover, the district court expressly found that the drugs and the gun were “discovered without

reference to the police error or misconduct,” and “there is no nexus sufficient to provide a taint.”

See Nix v. Williams, 467 U.S. 431, 448 (1984). Edgerson has failed to demonstrate clear error.

       Based on the foregoing, we hold that, because the search was conducted pursuant to Ms.

Manley’s valid consent, the evidence obtained is admissible. We AFFIRM the district court’s denial

of Edgerson’s motion to suppress.




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