       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Carter                     No. 01-5338
    ELECTRONIC CITATION: 2004 FED App. 0263P (6th Cir.)
                File Name: 04a0263p.06                    Appellant. Charles P. Wisdom, Jr., Ron L. Walker, Jr.,
                                                          ASSISTANT UNITED STATES ATTORNEYS, Lexington,
                                                          Kentucky, for Appellee.
UNITED STATES COURT OF APPEALS
                                                            BOGGS, C. J., delivered the opinion of the court, in which
              FOR THE SIXTH CIRCUIT                       KRUPANSKY, BATCHELDER, DAUGHTREY,
                _________________                         GIBBONS, ROGERS, SUTTON, and COOK, JJ., joined.
                                                          MARTIN, J. (pp. 10-13), delivered a separate dissenting
 UNITED STATES OF AMERICA , X                             opinion, in which MOORE, COLE, and CLAY, JJ., joined,
             Plaintiff-Appellee, -                        with MOORE, J. (pp. 14-18), also delivering a separate
                                   -                      dissenting opinion in which COLE and CLAY, JJ., joined.
                                   -   No. 01-5338        GILMAN, J. (pp. 19-21), delivered a separate dissenting
            v.                     -                      opinion.
                                    >
                                   ,                                          _________________
 SEAN CARTER ,                     -
          Defendant-Appellant. -
                                                                                  OPINION
                                  N                                           _________________
       Appeal from the United States District Court
    for the Eastern District of Kentucky at Lexington.      BOGGS, Chief Judge. Defendant Sean Carter pleaded
   No. 00-00058—Henry R. Wilhoit, Jr., District Judge.    guilty to possession of crack cocaine with intent to distribute
                                                          and to aiding and abetting his cohort Calvin Holliday in the
                 Argued: June 11, 2003                    same crime. The district court denied his motion to suppress
                                                          evidence gained from a warrantless search by police of his
          Decided and Filed: August 6, 2004               hotel room, and he now challenges that ruling.

     Before: BOGGS, Chief Judge; and MARTIN,                 A divided panel of this court previously affirmed the
    KRUPANSKY, BATCHELDER, DAUGHTREY,                     district court ruling, on the grounds that exigent
     MOORE, COLE, CLAY, GILMAN, GIBBONS,                  circumstances had justified the police officers’ entry into
    ROGERS, SUTTON, and COOK, Circuit Judges.             Carter’s hotel room. We granted rehearing en banc to
                                                          consider whether the circumstances truly qualified as exigent.
                  _________________                       2003 U.S. App. LEXIS 3371. We need not reach that
                                                          question because we now conclude that the district court
                       COUNSEL                            correctly found that Carter consented to the officers’ entry.

ARGUED: Robert L. Abell, Lexington, Kentucky, for                                        I
Appellant. Charles P. Wisdom, Jr., ASSISTANT UNITED
STATES ATTORNEY, Lexington, Kentucky, for Appellee.         The facts in this case appear in greater detail in the panel
ON BRIEF: Robert L. Abell, Lexington, Kentucky, for       decision at 315 F.3d 651. We repeat the salient points here.

                            1
No. 01-5338                      United States v. Carter      3    4     United States v. Carter                      No. 01-5338

  On March 21, 2000, in Lexington, Kentucky, a confidential          A federal grand jury indicted Carter and Holliday on five
informant informed law enforcement officials that Carter and       counts of cocaine trafficking, in violation of 21 U.S.C.
Holliday were in the process of leaving a “crack house” to         § 841(a)(1). The district court conducted an evidentiary
obtain more crack cocaine for sale. The confidential               hearing and denied Carter’s motion to suppress the evidence
informant provided a description and license plate number for      found in the hotel room and on his person. At the hearing,
the vehicle in which Carter and Holliday were traveling.           Detective Hart testified in detail as to the circumstances of his
                                                                   entry into Room 119. The district court found the officers’
  Law enforcement officers followed the vehicle to a Red           entry justified by exigent circumstances, namely that once
Roof Inn and observed Carter and Holliday enter Room 119.          Carter was alerted to the presence of law enforcement
They monitored the room until Holliday left it and returned to     personnel he could have quickly disposed of the evidence; in
his vehicle. When Holliday began to drive out of the parking       the alternative, the court found that Carter had validly
lot, the officers executed a traffic stop, detected the odor of    consented to the officers’ entry into his hotel room. Carter
marijuana emanating from the vehicle, and observed                 thereupon conditionally pled guilty, reserving the right to
marijuana in the vehicle. They arrested Holliday and               challenge his conviction based on the outcome of the
searched his person and vehicle, finding seventeen grams of        suppression hearing. Following sentencing, Carter timely
crack cocaine. The validity of this arrest is not challenged.      brought this appeal.
  The officers then returned to Room 119. They knocked on                                          II
the door four times, the first two times identifying themselves
as housekeeping personnel. Carter finally opened the door,           This court reviews “a district court’s factual findings
and saw two officers wearing vests bearing the word                regarding motions to suppress for clear error and its legal
“POLICE” over civilian clothes, and a third in a police            conclusions de novo.” United States v. Blair, 214 F.3d 690,
uniform. None of the officers had their firearms drawn or          696 (6th Cir. 2000) (citation omitted). Where a district court
otherwise behaved in a threatening manner. The officers            denies that motion, we consider the evidence “in the light
identified themselves. As they did so, they smelled marijuana      most favorable to the government.” United States v.
from inside the room and observed what appeared to be, and         Wellman, 185 F.3d 651, 654-55 (6th Cir. 1999) (citation
was, the stub of a mostly-consumed marijuana cigar, or             omitted).
“blunt,” in plain sight in an ashtray on a table adjacent to the
door.                                                                It is well-settled that a person may waive his Fourth
                                                                   Amendment rights by consenting to a search. Davis v. United
   It is undisputed that at this point the officers asked Carter   States, 328 U.S. 582, 593-94 (1946). Consent to a search
if they could enter the hotel room and speak to him. In            “may be in the form of words, gesture, or conduct.” United
response, Carter stepped back and cleared a path for the           States v. Griffin, 530 F.2d 739, 742 (7th Cir. 1976). In
officers to enter. Detective Edward Hart immediately               whatever form, consent has effect only if it is given freely and
proceeded to the table, picked up the “blunt” stub, and            voluntarily. Bumper v. North Carolina, 391 U.S. 543, 548
quickly confirmed by sight and scent his initial belief that it    (1968).
contained marijuana. The officers then placed Carter under
arrest. Carter proved to be carrying twelve grams of crack          Whether consent was free and voluntary so as to waive the
cocaine and $ 1,749 in cash on his person.                         warrant requirement of the Fourth Amendment is “a question
No. 01-5338                     United States v. Carter     5    6      United States v. Carter                    No. 01-5338

of fact to be determined from the totality of all the                A. Yes. I was going to seize that item.
circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218,
227 (1973). Thus, our review is for clear error. United States      We hold that the district court did not clearly err,
v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc). Carter    considering this testimony and all the circumstances, in
did not testify at the suppression hearing, so our information   finding that Carter’s actions as described constituted valid
as to the exact sequence of events after Carter opened the       consent.     The investigating officers were instantly
door to Room 119 comes by way of Detective Hart’s                recognizable as policemen when Carter opened the door.
testimony:                                                       They properly asked permission to enter, and Carter stepped
                                                                 back, letting them in. Any ordinary caller, under like
  Q. Okay. And again, you testify that Mr. Carter told you       circumstances, would understand assent to have been given,
     all to come on in. You all just entered the room on         and the police are not held to a higher standard in this regard
     your own; right?                                            than an ordinary person. Robbins v. MacKenzie, 364 F.2d 45,
                                                                 49 (1st Cir. 1966) (“An ordinary person who knocks on a
  A. We asked if we could come in and speak to him. At           door and receives assent may properly consider himself an
     this time he moved away from the door and backed up.        invited guest . . . . Similarly, the fourth amendment . . . does
                                                                 not require [a police officer] to be clairvoyant.”).
  Q. Did he say yes?
                                                                    A number of cases with superficially similar fact-patterns
  A. I don’t recall him saying yes. But as he was doing          have held that the confrontation between police and suspect
     that, I went on to retrieve the suspected marijuana.        was impermissibly tainted by “duress, coercion [or] trickery.”
                                                                 United States v. Jones, 641 F.2d 425, 429 (6th Cir. 1981)
  Q. Okay. So as he was standing, stepping back, you were        (search not consented to, where police officers pounded and
     proceeding on in any way?                                   kicked on door, barged in with firearms drawn before any
                                                                 words were exchanged, and claimed to have a warrant). Even
  A. Yes. Based on the odor that I smelled and what I was        a spoken assent to search may be too ambiguous to establish
     observing, I went in to obtain [the blunt].                 consent in certain circumstances. E.g., United States v.
      ***** **                                                   Worley, 193 F.3d 380, 386 (6th Cir. 1999)(“you’ve got the
                                                                 badge, I guess you can [search]” is not consent where context
  Q. [Y]ou said that you are not certain if he responded         was intimidating and defendant testified that he felt he had no
     either yes or no to Detective Carter’s asking about –       choice.) But each such determination is “fact-specific,” and
     asking permission to come in?                               there is no “‘magic’ formula or equation” for determining
                                                                 consent in the abstract. Id. at 387.
  A. That’s correct.
                                                                   Here, the officers specifically asked if they could come in,
  Q. But regardless of what he said, you had already             and Carter was not threatened, coerced, or tricked when he
     ascertained the odor of marijuana, and seeing this blunt    chose to let the officers into his room. Nothing in the record
     that you were going to seize that and arrest him for        indicates that he was unaware of his well-known right to
     possession of marijuana regardless?                         refuse entry, which he might have done simply by standing
                                                                 pat, saying “no,” or closing the door. His decision may have
No. 01-5338                      United States v. Carter      7    8    United States v. Carter                      No. 01-5338

been rash and ill-considered, but that does not make it invalid.   implied consent”); Ballentine’s Law Dictionary (3d ed. 1969)
The Fourth Amendment does not require police officers to           (“acceptance, perhaps without approval . . . . Conduct from
counsel a suspect to consider his options with care.               which may be inferred assent with a consequent estoppel or
                                                                   quasi-estoppel” (citations omitted)). Here, the district judge
   Carter makes much of the fact that Hart apparently intended     explicitly used “acquiescence” to mean “permission”—that is,
in any event to enter the room to seize the blunt. What Hart       consent.
might have done had consent not been given is, of course,
irrelevant. But Carter urges that consent was not given              Fundamentally, Carter asks us to hold as a matter of law
because Hart carried out his intent and barged ahead to seize      that consent must be given verbally, perhaps by some “magic
the blunt, and Carter merely jumped out of the way. This is        words” formula. This we decline to do. Although a man’s
one possible reading of Hart’s testimony, and such a scenario      home is his castle, trumpets need not herald an invitation.
would not amount to consent. See Robbins, 364 F.2d at 48           The police may be kept out or invited in as informally as any
(stepping back in fear is not consent). But precisely because      other guest. Carter invited the police in and cannot undo his
testimony often becomes more ambiguous when reduced to             act in court.
toneless words on a page, we defer to the district court’s
factual finding. See Anderson v. City of Bessemer City, 470                                       III
U.S. 564, 574 (1985) (“[w]here there are two permissible
views of the evidence, the factfinder’s choice between them           Once invited into Carter’s hotel room to talk, Detective
cannot be clearly erroneous”).                                     Hart had the latitude of a guest in the room unless restricted
                                                                   by Carter himself. Thus, there was nothing improper in
  Carter further contends that the district court judge never      Hart’s decision to take the few steps to the table which, he
actually found that consent was given, so there is no occasion     testified, was “near the door, between the door and the wall,”
for deferential review. Carter relies on the judge’s exact         and visible even from outside the room. Once he had arrived
words at the suppression hearing: “I believe the officer has       there, the smell and appearance of the blunt, coupled with the
testified without contradiction here now that he has               knowledge that Holliday had confessed to having smoked
permission to enter the room. And the defendant did not say        marijuana a short time ago in that room, “warrant[ed] a man
anything but stepped back, which indicates to the Court that       of reasonable caution in the belief” that it was a blunt and not
there was at least acquiescence.” Focusing on the word             a legal cigar filled with tobacco. Texas v. Brown, 460 U.S.
“acquiescence,” Carter reminds us that consent will not be         730, 742 (1983) (quoting Carroll v. United States, 267 U.S.
found upon mere “acquiescence to a claim of lawful                 132, 162 (1925)). The “plain view” exception to the warrant
authority.” Bumper, 391 U.S. at 548-49 (1968).                     requirement applies: the blunt was in plain view; there was
                                                                   probable cause to consider it incriminating on its face; Hart
  Carter’s verbal quibble is bootless. Bumper dealt with           was lawfully in position to see it; and Hart had a lawful right
acquiescence to the execution of an improperly-issued              of access to the item. United States v. Calloway, 116 F.3d
warrant. Ibid. The officers here made no such overpowering         1129, 1133 (6th Cir. 1997).
claim of authority, in the face of which any consent would
have been mere acknowledgment.              “Acquiescence”            As some of our colleagues note, Hart did testify that a
commonly indicates assent, however grudging. Black’s Law           blunt closely resembles an ordinary cigar. But this does not
Dictionary, 23 (7th ed. 1999)(“tacit or passive acceptance;        mean, contrary to Judge Martin’s dissent (page 12), that “the
No. 01-5338                        United States v. Carter   9    10    United States v. Carter                      No. 01-5338

fact that the cigar was a ‘blunt’ was not immediately                                   ______________
incriminating.” If Hart was reasonable in believing the object
was a blunt based on what he lawfully observed, then it was                                DISSENT
immediately incriminating. United States v. McLevain, 310                               ______________
F.3d 434, 441 (6th Cir. 2002)(“marijuana . . . on a table in
plain view” would obviously be immediately incriminating).           BOYCE F. MARTIN, JR., Circuit Judge, dissenting. Of
A “blunt” is a marijuana-filled cigar. Hart testified that this   the various justifications that have been used to sanction the
particular ‘cigar’ smelled like burnt marijuana, and that as an   warrantless search in this case, in my view none satisfies
experienced drug-interdiction officer, he was very familiar       constitutional standards. The district court found that Sean
with that scent. See Brown, 460 U.S. at 743 (1983) (officer       Carter consented to the search of his room and person. On
who used his “trained eye” to identify dual-use drug              appeal, a divided panel did not reach the issue of consent,
paraphernalia had probable cause). As he got closer to the        finding instead that exigent circumstances justified the search.
‘cigar,’ he testified, the scent got stronger, and when he        The majority now chooses not to reach the issue of exigent
looked closely at the stubbed-out end, he could see “the green    circumstances, and upholds the district court’s decision on yet
leafy substance in the end.” See id. at 740 (officer whose        another alternative basis. From the hat of uncertain
suspicions are aroused may shift angle of view and shine light    jurisprudence, the majority hand-picks anomalous
on suspect objects to see them better); compare Arizona v.        justifications to rationalize unlawful police action in
Hicks, 480 U.S. 321, 325 (1987) (officer relying on plain         retrospect, concluding that Carter may not have consented to
view doctrine may not “expose[] to view concealed portions”       the search, but he did consent to the officers’ entry, and,
of homeowner’s property). Unlike the officers in McLevain,        because marijuana was in “plain view,” the subsequent search
Hart did not have to conduct “further investigation” (e.g.,       of his room and person was valid. Of all of the proffered
chemical testing of commonplace objects). McLevain, 310           justifications for the police action in this case, the majority’s
F.3d at 443. He had probable cause “on the facts then             is particularly repugnant, and I necessarily dissent.
available.” United States v. Beal, 810 F.2d 574, 577 (6th Cir.
1987).                                                               On the night that Carter was arrested, the officers were
                                                                  pursuing a confidential informant’s tip that Carter and his
  Carter does not argue that there was anything improper          friend, Calvin Holliday, were going to a motel to resupply
about his consequent arrest or the search of his person           their crack cocaine inventory. While surveilling the motel for
incident to that arrest, except insofar as the further search     over an hour and a half, the officers had time to summon a
would be the ‘fruit of the poisonous tree’ had the initial        narcotics detection dog and handler to the scene, but failed to
seizure been improper. Because the initial seizure was            obtain a warrant to search Carter’s motel room. In the
proper, the tree is untainted, and in the absence of any other    absence of any urgency, the police had additional time to
reason to suppress the resulting evidence, it was properly        obtain a search warrant after they stopped Holliday, who, in
admitted.                                                         combination with the informant’s tip, provided the officers
                                                                  with probable cause to believe that they would find more
                              IV                                  contraband in the motel room. Though they had plenty of
                                                                  time to obtain a warrant, the officers proceeded inside without
  For these reasons, we AFFIRM the order of the district          one.
court.
No. 01-5338                      United States v. Carter     11    12    United States v. Carter                      No. 01-5338

  Arriving at Carter’s motel room door, they knocked twice         met the stringent requirements for consent that we have
and deceptively called out that they were motel housekeeping       articulated in our Fourth Amendment jurisprudence.
personnel. After two more knocks, Carter opened the door.
Detective Edward Hart testified that at that moment, he               Supplementing its conclusion that Carter consented to the
spotted a cigar on a table inside and noticed that Carter was      officers’ entry, the majority utilizes the “plain view”
there alone. Accompanied by officers who were wearing              exception to the Fourth Amendment’s warrant requirement to
official identification and were presumably armed, Detective       legitimize the warrantless search. The majority’s holding is
Hart requested permission to enter the room. Upon this show        wholly indefensible. This Court has explained that to invoke
of force, Carter stepped back, but did not respond. In the         the plain view doctrine, the evidence must be “(1) in plain
same moment, Detective Hart walked past Carter to examine          view; (2) of a character that is immediately incriminating;
the cigar and determined that it was a “blunt”—a hollowed-         (3) viewed by an officer lawfully located in a place from
out cigar filled with marijuana.                                   where the object can be seen; and (4) seized by an officer who
                                                                   has a lawful right of access to the object itself.” United States
  The trial court found that Carter voluntarily “acquiesced”       v. Roark, 36 F.3d 14, 18 (6th Cir. 1994) (citing Horton v.
to the search by “stepping back” from the door upon                California, 496 U.S. 128 (1990)). See also United States v.
Detective Hart’s request to enter, and that Carter’s               Morgan, 743 F.2d 1158, 1167 (6th Cir. 1984). The “plain
“acquiescence” signaled consent. The majority partially            view” exception is inapplicable in this case because the fact
agrees, finding that Carter’s “acquiescence” signaled his          that the cigar was a “blunt” was not immediately
consent to the officer’s entry, though not necessarily to the      incriminating. See United States v. McLevain, 310 F.3d 434,
search. In that sense, the majority concludes, Carter “invited”    443 (6th Cir. 2002) (“[W]hen an item appears suspicious to an
the officer in as he would “any other guest.” This conclusion      officer but further investigation is required to establish
lacks any foundation in fact or law. A police officer is not       probable cause as to its association with criminal activity, the
“any other guest.” Consent to entry in this case must satisfy      item is not immediately incriminating.”) (citation omitted).
the requirements of the Fourth Amendment.
                                                                     Detective Hart’s own testimony supports this conclusion.
  We studied those requirements in United States v. Worley,        Hart explained: “From the door frame I could look in, and
193 F.3d 380, 386 (6th Cir. 1999), where we held that consent      there was a small table . . . between the door and the wall. On
exists only when it is “unequivocally, specifically, and           that I saw a--what I thought was a blunt--it’s a hollowed out
intelligently given, uncontaminated by any duress and              cigar that marijuana is then put into.” Detective Hart later
coercion.” Consent is a “free and voluntary” statement of          acknowledged, however, that whether a cigar is truly a
acceptance, and not “merely a response conveying an                “blunt” can only be verified by close examination. This
expression of futility in resistance to authority or acquiescing   exchange followed:
in the officers’ request.” Id. at 386. Carter’s motion of
“stepping back” upon a show of police force hardly signals an        Q. From the outside it looks like a regular cigar?
unequivocally free or voluntary response. Rather than an
invitation, Carter’s “stepping back” was more likely futile          A. Yes.
resignation or an effort to get out of harm’s way. On this
record I simply cannot conclude that Carter’s “acquiescence”
No. 01-5338                      United States v. Carter      13    14   United States v. Carter                      No. 01-5338

  Q. Okay. So if I am looking across--if one was sitting on                              _______________
the table over there,    it might very well be filled with
marijuana, but it would look like a regular   cigar?                                        DISSENT
                                                                                         _______________
  A. That’s correct.
                                                                      KAREN NELSON MOORE, Circuit Judge, dissenting. I
From this testimony, it is clear that the fact that the cigar was   join fully in Judge Martin’s persuasive dissent. I separately
a “blunt” was not immediately apparent; rather, that fact was       and respectfully dissent from the majority because the
only discoverable upon closer inspection. Because the item          government has failed to prove by a preponderance of the
that Detective Hart observed was not immediately                    evidence that Sean Carter (“Carter”) “unequivocally”
incriminating from where he stood, the “plain view”                 consented to the police officers’ entry into his hotel room. I
exception to the warrant requirement cannot apply.                  concur neither with the majority’s quiet adoption of a
                                                                    principle that implied consent will suffice to justify a
  The United States has established neither consent nor the         warrantless entry nor with its application of this standard to
applicability of the “plain view” exception. And certainly          the entry of Carter’s hotel room.           Such a holding
there were no exigent circumstances—the officers had plenty         unnecessarily upends the precedent of this circuit in a manner
of time to secure a warrant after they stopped Calvin               that contradicts the law established by the United States
Holliday. Still, the majority inexplicably makes a determined       Supreme Court.
effort to legalize unlawful police conduct and lead us through
the gates of legitimacy, down the steep slope of retrospective         One must begin with the constitutional imperative against
rationalization, to where, even in this day of technological        warrantless entries ensconced in the Fourth Amendment.
sophistication, we carelessly allow the expansion of police         Because “[t]he right of the people to be secure . . . against
powers beyond what the Constitution allows. See United              unreasonable searches and seizures[] shall not be violated,”
States v. Carpenter, 360 F.3d 591, 604 (6th Cir. 2004). I           U.S. Const. Amend. IV, warrantless searches and seizures are
would suppress and therefore I dissent.                             “presumptively unreasonable.” Payton v. New York, 445 U.S.
                                                                    573, 586 (1980); see United States v. Haddix, 239 F.3d 766,
                                                                    767 (6th Cir. 2001) (“As a practical matter, [the Fourth
                                                                    Amendment] normally requires the police to have a warrant
                                                                    whenever their conduct compromises an individual’s privacy
                                                                    in his or her personal affairs.”). “[P]hysical entry of the home
                                                                    is the chief evil against which the wording of the Fourth
                                                                    Amendment is directed.” Payton, 445 U.S. at 585 (quotation
                                                                    and citation omitted). Nonetheless, consent is “one of the
                                                                    specifically established exceptions to the requirements of both
                                                                    a warrant and probable cause.” Schneckloth v. Bustamonte,
                                                                    412 U.S. 218, 219 (1973). Given that the consent exception
                                                                    is “jealously and carefully drawn,” Jones v. United States,
                                                                    357 U.S. 493, 499 (1958), it is no surprise that, “[w]hen a
                                                                    prosecutor seeks to rely upon consent to justify the lawfulness
No. 01-5338                             United States v. Carter           15     16   United States v. Carter                      No. 01-5338

of a search, he has the burden of proving that the consent was,                  synonymous with “implied consent,” Maj. Op. at 7 (citing
in fact, freely and voluntarily given.” Bumper v. North                          Black’s Law Dictionary 23 (7th ed. 1999)), and it is well-
Carolina, 391 U.S. 543, 548 (1968) (emphasis added). “This                       settled that acquiescence to authority is not enough to
burden cannot be discharged by showing no more than                              demonstrate consent.       Bumper, 391 U.S. at 548-49.
acquiescence to a claim of lawful authority.” Id. at 548-549                     Consequently, we have required that consent be unequivocal,
(emphasis added).1 The strong aversion to warrantless entries                    specific, and intelligent. United States v. Haynes, 301 F.3d
has led us to hold that “not any type of consent will suffice,                   669, 682 (6th Cir. 2002); Worley, 193 F.3d at 386; Tillman,
but instead, only consent that is ‘unequivocally, specifically,                  963 F.2d at 143. We have not been alone. See United States
and intelligently given, uncontaminated by any duress and                        v. Gonzalez, 71 F.3d 819, 830 (11th Cir. 1996); United States
coercion.’” United States v. Worley, 193 F.3d 380, 386 (6th                      v. Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1989). This is not to
Cir. 1999) (quoting United States v. Tillman, 963 F.2d 137,                      say that unequivocal consent need always be verbally given
143 (6th Cir. 1992)).2                                                           or formally delivered. A nod, a terse “okay” in response to a
                                                                                 request to enter, or a hand gesture, may constitute
  Applying the above principles, I am left with the definite                     unequivocal consent depending on the particular
and firm conviction that the district court reached the wrong                    circumstances.
result because the government failed to prove by a
preponderance of the evidence that Carter consented to the                          Carter took no such action, however, and his recession into
officers’ entry. We have never previously established that                       the room did not signal an unequivocal consent to a
implied consent justifies an otherwise illegal warrantless                       warrantless entry. The police knocked loudly four times,
entry. As even the majority recognizes, “acquiescence” is                        identifying themselves the first two times as housekeeping
                                                                                 staff. Joint Appendix (“J.A.”) at 74 (Det. Hart Test.). When
                                                                                 Carter opened the door, he saw three police officers, two
    1
       The test for consent established in Bumper v. North Carolina, 391         wearing “POLICE” vests and one in full uniform. The
U.S. 543 (1968), is certainly germ ane he re. The Suprem e Co urt in             officers identified themselves and asked to enter. Detective
Bumper established a general test that when a prosecutor relies on consent       Hart (“Hart”) testified that Carter “moved away from the door
to justify a search, the burden to pro ve that such co nsent was 1) actually     and backed up,” J.A. at 76, but Hart never stated that Carter
given and 2 ) freely and voluntarily given “cannot be discharged by
showing no more than acquiescence to a claim of lawful authority.” Id.           “cleared a path for the officers to enter,” as the majority
at 548-49. Tha t Bum per dealt primarily with the sec ond part of the            depicts. Maj. Op. at 2. Furthermore, Hart made clear that
inquiry — whether consent was voluntary when law enforcement officers            regardless of whether Carter gave consent, the officers
asserted that they possessed a warrant— do es not negate the applicability       planned to enter the hotel room and seize the “blunt” once
of the Supreme Court’s general statement about acquiescence to cases             they had smelled the marijuana. J.A. at 79.
assessing the threshold question of whether consent was even given in the
first place.
                                                                                   The only possible signal of consent is Carter’s act of
    2
      There is a distinction between consent to entry and consent to search
                                                                                 stepping back into the hotel room. Carter did not say
in the sense that when a de fendant con sents to the entry of police officers,   anything while he retreated, such as “okay” or “fine,” after the
he or she does not automa tically consent to a search. See United States         police asked to enter the room. See United States v. Garcia,
v. Ivy, 165 F.3d 39 7, 401-04 (6th Cir. 1998) (analyzing first whether           997 F.2d 1273, 1281 (9th Cir. 1993) (holding that consent
consent to entry was given before assessing whethe r consent to search was       existed when defendant said “okay,” nodded, and stepped
given and was voluntary). We apply the same standards for consent when
analyzing either issue. Id. at 401-02.
                                                                                 back in response to officers’ request to enter). Carter did not
No. 01-5338                      United States v. Carter     17    18   United States v. Carter                     No. 01-5338

nod or gesture so as to indicate an affirmative response to        at least acquiescence.” J.A. at 82. The district court’s belief
their request. Moreover, this is not a situation in which Carter   that acquiescence is enough highlights its error. Because the
refused entry to the officers on one occasion but then stepped     Supreme Court has ruled that acquiescence does not equal
back after the officers made a second request to enter, such       consent, the district court clearly erred by holding that the
that his silence on the second attempt could constitute consent    officers were justified in entering the room on the basis that
in juxtaposition with his first response. See United States v.     “there was at least acquiescence.”
Griffin, 530 F.2d 739, 743 (7th Cir. 1976) (holding that when
defendant had first responded “no” to a request to enter,            Without more, the government has failed to meet its burden
slamming his door in the officers’ faces, but then had stepped     of proving consent. The inability to demonstrate consent
back and left his door open without explicitly refusing to         precludes the need to assess whether such consent was
grant entry after the officers repeated the request several        voluntary. Without voluntary consent, the warrantless entry
minutes later, the defendant’s actions constituted consent         and search of Carter’s room was illegal, and the fruits of that
because of the disparity between the defendant’s two different     search are tainted. Accordingly, I would reverse the district
reactions). Instead, Carter simply stepped back and did not        court.
say a word to the officers, one of whom testified that he
would have entered the room to seize the blunt no matter
Carter’s response. Cf. United States v. Albrektsen, 151 F.3d
951, 955 (9th Cir. 1998) (ruling that defendant did not
consent when both the officers and the defendant recalled that
“entry was going to made with or without permission,” and
the defendant stepped back from the door because he felt that
he would have been knocked down if he did not move).
  Carter’s response cannot be considered consent; there was
no affirmative act, let alone an unequivocal one. Carter’s
reaction to the officers’ request can only be considered
acquiescent behavior, which the Supreme Court has
distinguished from valid consent. I cannot accept the
majority’s characterization of Carter’s citation to established
Supreme Court precedent as a “verbal quibble” that is
“bootless.” Maj. Op. at 7. A focus on the word
“acquiescence” is entirely proper because the Supreme Court
has explicitly held that acquiescence to a claim of lawful
authority, whether overpowering or not, is not sufficient to
satisfy the government’s burden to prove consent. Bumper,
391 U.S. at 548-49. Furthermore, it is not only Carter who
focuses on the term “acquiescence”; in ruling that Carter
consented to the entry, the district court held that Carter’s
motion of stepping back “indicates to the Court that there was
No. 01-5338                      United States v. Carter     19    20    United States v. Carter                      No. 01-5338

                     ________________                              Bumper is that “[w]hen a law enforcement officer claims
                                                                   authority to search a home under a warrant, he announces in
                         DISSENT                                   effect that the occupant has no right to resist the search. The
                     ________________                              situation is instinct with coercion . . . . Where there is
                                                                   coercion there cannot be consent.” Id. at 548. In the present
   RONALD LEE GILMAN, Circuit Judge, dissenting.                   case, as the majority correctly observes, the police officers
Although I agree with the conclusion of the majority               “made no such overpowering claim of authority.” I am
regarding Carter’s implied consent to the entry by the police      therefore of the opinion that Judge Moore’s reliance on
officers, I share Judge Martin’s view that the seizure of the      Bumper’s language, completely divorced from its factual
blunt in Carter’s hotel room cannot be justified under the         context, is misplaced as applied to the facts before us.
“plain view” exception to the prohibition against a
warrantless search. The very fact that the majority opinion of        Despite my agreement with the above portions of the
Chief Judge Boggs and the dissenting opinions of Judges            majority opinion, I am persuaded that the seizure of the blunt
Martin and Moore can persuasively reach opposite                   from Carter’s hotel room cannot be justified under the “plain
conclusions about whether Carter gave implied consent to the       view” exception for all of the reasons set forth in Judge
officers’ entry demonstrates to me that the district court’s       Martin’s dissent. The majority, in reaching the opposite
finding of consent was not “clearly erroneous.” As the             conclusion, relies on United States v. Calloway, 116 F.3d
majority points out, it is well-settled that “[w]here there are    1129, 1133 (6th Cir. 1997), to support its argument that the
two permissible views of the evidence, the district court’s        plain view exception applies because “the blunt was in plain
conclusions cannot be clearly erroneous.” United States v.         view; there was probable cause to consider it incriminating on
Worley, 193 F.3d 380, 384 (6th Cir. 1999) (quoting Anderson        its face; Hart was lawfully in position to see it; and Hart had
v. City of Bessemer City, 470 U.S. 564, 573 (1985)). Because       a lawful right of access to the item.” I respectfully disagree
“[i]t is not enough that this Court might give the facts another   that the facts of this case satisfy the Calloway factors. In
construction [or] resolve the ambiguities differently. . . ,”      particular, I do not believe that there was probable cause to
West v. Fred Wright Constr. Co., 756 F.2d 31, 34 (6th Cir.         consider the blunt “incriminating on its face” or that Hart had
1985), I believe that we should give deference to the              a “lawful right of access to the item.”
conclusion of the district court regarding Carter’s consent to
entry by the police.                                                  The most relevant case on point, in fact, is not Calloway,
                                                                   but United States v. McLevain, 310 F.3d 434 (6th Cir. 2002).
   I also agree with the majority that the holding in Bumper v.    McLevain is mistakenly relied on by the majority for the
North Carolina, 391 U.S. 543 (1968), is not applicable to the      proposition that the blunt in question was immediately
case before us. Judge Moore’s dissent emphasizes that, in          incriminating. But the actual facts in McLevain involved a
light of Bumper, the government’s burden to show that              narcotics detective who seized certain items—a cut cigarette
consent was freely and voluntarily given “cannot be                filter, a prescription bottle with fluid, a spoon, and a twist
discharged by showing no more than acquiescence to a claim         tie—that were, in his experience, commonly associated with
of lawful authority.” Id. at 548-49. But Bumper dealt with         the use of methamphetamine. Yet this court held that “[t]he
the defendant’s grandmother who, informed by police officers       connection between these items and illegal activities . . . is not
that they possessed a valid search warrant for her home,           enough to render these items intrinsically incriminating.” Id.
allowed them to come in. The critical point to take from           at 442 (emphasis added).
No. 01-5338                     United States v. Carter    21

  In view of the ruling that the McLevain facts were
insufficient to satisfy the “plain view” exception to the
prohibition against a warrantless search, how can the object
that Hart conceded looked like a regular cigar from where he
initially stood be considered “incriminating on its face”?
There is no way. I would therefore suppress the seizure of the
blunt and thus REVERSE the judgment of the district court.
