                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                            FOR THE TENTH CIRCUIT                         October 23, 2018
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 17-6223
                                                      (D.C. No. 5:16-CR-00220-F-1)
 MICHAEL SCOTT MORRIS,                                        (W.D. Okla.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before BRISCOE, KELLY, and McHUGH, Circuit Judges.
                   _________________________________

       Defendant-Appellant Michael Scott Morris entered a conditional plea of guilty to

being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and was sentenced to 60

months’ imprisonment and three years’ supervised release. On appeal, he challenges the

district court’s denial of his motion to suppress evidence discovered during a warrantless

search. He argues that his mother’s consent to search his home was not voluntary and

contends that no exigent circumstances justified a warrantless search. Our jurisdiction

arises under 28 U.S.C. § 1291 and we affirm.




       *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                        Background

       In the early morning hours of June 24, 2016, Officers Clayton Hobbs and Andrew

Peck of the Chickasha Police Department responded to a report of a shooting incident at

Mr. Morris’s home. 3 R. 13. Two witnesses called the police to report that Mr. Morris

had fired shots from his porch in their direction as they passed in their vehicle. Id. at 13,

32, 61. Officer Hobbs reached the scene shortly before 1:30 a.m. Id. at 12. Officer Peck

arrived soon after. Id. at 14–15. Both officers were wearing body cameras. Id.

       After the officers arrived on the scene, Officer Peck announced their presence over

an intercom and ordered Mr. Morris to exit the house with his hands up. 1 Supp. R. 1.

Debra Morris — Mr. Morris’s mother — appeared on the porch after Officer Peck

repeated the command several times. Id. Both officers then directed Ms. Morris to

approach them from the porch. Id.

       Officer Hobbs asked Ms. Morris if she was “ok,” and Ms. Morris responded that

she was, but that she suffers from rheumatoid arthritis and was “real groggy” because she

had taken medication to alleviate her pain before bed. Id. at 2. Ms. Morris moved with

some difficulty because of her arthritis, and Officer Hobbs brought Ms. Morris to Officer

Peck’s patrol car where she leaned on the car for support during questioning. Id.

       In response to questions from Officer Hobbs, Ms. Morris stated that she was the

only person in the house and had not seen her son in roughly an hour. Id. Officer Hobbs

asked for the first time whether he and Officer Peck could enter the house. Id. at 3. Ms.

Morris protested that her dog — a pit bull — would not let the officers enter. Id. Officer
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Hobbs responded that “we’re going to have to get in that house” and explained that he

and Officer Peck had questions for Mr. Morris and needed to clear the house to make

sure Mr. Morris was not inside. Id. Ms. Morris repeated that she had not seen her son

since he left an hour before — she told Officer Hobbs that she had taken pills before

lying down to sleep and had maybe “doz[ed]” for 10 or 15 minutes before the officers

arrived. Id. at 5.

       Officer Hobbs explained again that they needed to search the house and told Ms.

Morris that her son was accused of firing a handgun at a passing car. Id. Once again, she

claimed no one was inside. Id. at 6. When he asked her for the second time whether she

was giving consent to search the house she answered “No.” Id. Officer Hobbs

responded, “Ok, then we’ll get a warrant.” Id. He also told her that “[i]f he’s in there

and you’re not tellin’ me, I’m takin’ you to jail.” Id. Ms. Morris again denied that her

son was in the house. Id.

       Officer Hobbs then asked Ms. Morris for the third time whether she was giving

consent to enter the house and told Ms. Morris that all she had to do was say “yes or no.”

Id. (internal quotation marks omitted). Ms. Morris responded again that her son was not

in the house. Id. at 7. Officer Hobbs reiterated that they could obtain a search warrant

and search the house even without her consent. Id.

       Officer Hobbs reassured Ms. Morris that officers would do their best not to hurt

her dog if they entered the house. Id. Approximately six minutes after the police began

their conversation with Ms. Morris, an officer asked for the final time whether Ms.

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Morris was telling the police that she would give consent to search the house for her son

and she responded “Yeah.” Id. at 8. After giving her consent, Ms. Morris confirmed to

the officer that the consent was “of [her] own free will.” Id.

       Police then entered the home and found both Mr. Morris and several firearms and

homemade silencers, including the pistol he allegedly fired. 3 R. 139–41. In an oral

ruling denying the motion to suppress, the district court found (1) that the initial consent

given by Ms. Morris to enter the house and look for Mr. Morris was free and voluntary;

(2) that Mr. Morris’s later consent to search the house was free and voluntary; and (3)

that, even in the absence of valid consent, exigent circumstances justified the warrantless

entry into the house. 3 R. 137, 139, 142–43.




                                         Discussion

       We review a district court’s determination that consent to search was voluntary for

clear error. See United States v. Thompson, 524 F.3d 1126, 1133 (10th Cir. 2008). The

evidence is viewed in the light most favorable to the district court’s decision. See United

States v. Najar, 451 F.3d 710, 717 (10th Cir. 2006).

       Warrantless searches are presumptively unreasonable under the Fourth

Amendment. See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). That said, a well-

recognized exception is an occupant’s consent to search. See id. There are two

requirements. First, consent to search must be given by one with actual or apparent


                                              4
authority to consent. See United States v. Cos, 498 F.3d 1115, 1124 (10th Cir. 2007).

Second, the consent must be given freely and voluntarily — in other words the consent

must be the product of the individual’s free will, not of coercion or intimidation on the

part of law enforcement. See United States v. Jones, 701 F.3d 1300, 1317–18 (10th Cir.

2012). Voluntariness is assessed under the totality of the circumstances. See id. The

government bears the burden of proving consent was voluntary. See id. at 1318.

       Here, Mr. Morris argues the consent given by his mother was not free and

voluntary, but rather was the product of coercion on the part of the police. He points to

his mother’s compromised medical condition, her “grogginess,” and the repeated threats

by the police to retrieve a warrant and take her to jail if she did not consent.

       The district court reviewed the transcript of the officers’ interaction with Ms.

Morris and the actual video footage of the encounter. It also observed Ms. Morris when

she testified at the suppression hearing. Under the clear error standard, we may only

overturn the district court’s determination if its decision was unsupported by the factual

record or, after reviewing all of the evidence, we are firmly convinced the district court

erred. See Middleton v. Stephenson, 749 F.3d 1197, 1201 (10th Cir. 2014).

       The district court applied the correct legal standard for determining voluntariness

after considering the totality of the circumstances. 3 R. 137. It noted a disconnect

between the transcript that appeared “noticeably more coercive” than the “noticeably

courteous” interaction captured by the video. Id. at 129. Characterizing Ms. Morris’s

appearance and demeanor in the video as “responsive,” “mentally alert,” “reasonably

                                              5
articulate,” and “discernibly intelligent,” it rejected the contention that Ms. Morris was so

affected by the sleep aid she had taken or so afflicted by arthritis that her will could be

easily overborne. Id. at 130. Ms. Morris did not seem likely to be flustered or

intimidated according to the district court’s observation. Id. at 136.

       As for the argument that Ms. Morris was coerced into consenting by the officers’

threats to get a warrant, the district court found that there was nothing “inappropriate,

misleading, or coercive” in that statement. Id. An officer can express an intention to get

a warrant without rendering consent to search involuntary, as that expression is only one

factor among many in the totality of the circumstances. Cf. United States v. Hicks, 650

F.3d 1058, 1064 (7th Cir. 2011) (“Yet when the officer’s ‘expressed intention to obtain a

warrant is genuine, and not merely a pretext to induce submission, it does not vitiate

consent to search.’” (quoting United States v. Hicks, 539 F.3d 566, 571 (7th Cir. 2008))).

       Finally, Mr. Morris argues that the officers’ threats to take Ms. Morris to jail were

coercive. While significant, it is not inappropriate or coercive for officers to apprise an

individual of the legal consequences of her actions and it is merely one factor among

many in the totality-of-the-circumstances analysis. Cf. United States v. McNeal, 862

F.3d 1057, 1064 (10th Cir. 2017) (rejecting the defendant’s claim that confession was

coerced for this reason in Fifth Amendment context). Here, the district court noted that

the threat of jail was conditioned on Ms. Morris lying about the presence of her son in the

house, not on her failure to consent to a search. 3 R. 118. That is a reasonable

interpretation.


                                              6
       Because the district court’s determination that Ms. Morris’s consent was voluntary

will be affirmed, we need not reach the question whether exigent circumstances existed to

justify the officers’ search.

       AFFIRMED.
                                            Entered for the Court


                                            Paul J. Kelly, Jr.
                                            Circuit Judge




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