          RECOMMENDED FOR FULL-TEXT PUBLICATION
               Pursuant to Sixth Circuit Rule 206                         2    United States v. Jones                       No. 01-6036
     ELECTRONIC CITATION: 2003 FED App. 0227P (6th Cir.)
                  File Name: 03a0227p.06                                  ON BRIEF: James W. Bell, Knoxville, Tennessee, for
                                                                          Appellant. David P. Folmar, Jr., ASSISTANT UNITED
UNITED STATES COURT OF APPEALS                                            STATES ATTORNEY, Knoxville, Tennessee, for Appellee.
                  FOR THE SIXTH CIRCUIT                                      GILMAN, J., delivered the opinion of the court, in which
                    _________________                                     SARGUS, D. J., joined. KENNEDY, J. (pp. 9-12), delivered
                                                                          a separate dissenting opinion.
 UNITED STATES OF AMERICA , X
                                                                                              _________________
             Plaintiff-Appellee, -
                                   -                                                              OPINION
                                   -   No. 01-6036                                            _________________
            v.                     -
                                    >
                                   ,                                         RONALD LEE GILMAN, Circuit Judge. Richard Jones,
 RICHARD JONES, JR.,               -                                      Jr. entered a conditional plea of guilty to possession of more
          Defendant-Appellant. -                                          than 50 grams of cocaine base with intent to distribute, in
                                  N                                       violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and to
       Appeal from the United States District Court                       possession of a firearm after having been convicted of a
    for the Eastern District of Tennessee at Knoxville.                   felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
     No. 00-00131—James H. Jarvis, District Judge.                        Pursuant to Rule 11(a)(2) of the Federal Rules of Criminal
                                                                          Procedure, Jones reserved the right to appeal the decision of
                  Argued: December 12, 2002                               the district court denying his motion to suppress evidence
                                                                          seized at his residence during a search by federal and state
               Decided and Filed: July 10, 2003                           law enforcement authorities.

    Before: KENNEDY and GILMAN, Circuit Judges;                             On appeal, Jones argues that the entry into his residence
              SARGUS, District Judge.*                                    was unlawful after he refused a request by law enforcement
                                                                          officers that he voluntarily consent to a search. Jones asserts,
                      _________________                                   as part of this contention, that the two persons on the premises
                                                                          that day never gave the officers permission to enter, and, in
                            COUNSEL                                       any event, that they were without authority to do so. For the
                                                                          reasons set forth below, we agree that the officers lacked
ARGUED: James W. Bell, Knoxville, Tennessee, for                          lawful authority to enter the residence. We therefore
Appellant. Perry H. Piper, ASSISTANT UNITED STATES                        REVERSE the judgment of the district court and REMAND
ATTORNEY, Chattanooga, Tennessee, for Appellee.                           the case for further proceedings consistent with this opinion.


    *
      The Honorable Edmund A. Sargus, Jr., United States District Judge
for the S outhern District of O hio, sitting by designation.

                                  1
No. 01-6036                       United States v. Jones      3    4    United States v. Jones                       No. 01-6036

                    I. BACKGROUND                                  to ensure that the dogs did not attack. According to Gilreath,
                                                                   James Teasley answered the door. Gilreath identified himself
  In the summer of 2000, a federal task force composed of          and asked Teasley his identity. After Teasley gave his name,
agents of the Federal Bureau of Investigation (FBI) and the        Gilreath asked him his purpose in being there. Teasley
Bureau of Alcohol, Tobacco and Firearms (ATF), together            advised that he was there to clean up the house. Gilreath then
with officers of the Knoxville Police Department, began            asked if he could come in and talk to Teasley. The district
surveillance of Jones’s residence. Law enforcement officers        court found that Teasley told the officer that he could come
had obtained information that Jones was residing in                inside the door of the residence. Jones argues, however, that
Knoxville, Tennessee and was in possession of firearms and         Teasley never gave the officer permission, but simply stepped
drugs. The agents and officers subsequently determined that        back from the front door.
Jones was wanted on an outstanding federal arrest warrant.
                                                                      After stepping inside the residence, Gilreath observed a
  On August 9, 2000, members of the task force pulled Jones        second male sitting to his left in the living room. Gilreath
over in his car and arrested him on the federal warrant. The       began a conversation with the male, who identified himself as
arresting officers asked Jones for permission to search his        Thomas Dickason. Officer Gilreath questioned Dickason
residence, which he refused to give. Jones was then placed in      about why he was working on the car and removing the door
custody and transported to the local police station.               panel. He also asked Dickason about his relationship to
                                                                   Jones. During the course of their conversation, Gilreath
  As a result of the surveillance conducted prior to Jones’s       recognized prison tattoos on Dickason. Dickason told
arrest, the officers knew that two other individuals were at his   Gilreath that he had served a prison sentence but was now
residence. The officers had observed a male working on a           straight.
motor vehicle in the driveway and had seen him take off one
of the door panels. A second person was observed bringing             He also advised Gilreath that his identification (ID) was in
food and water to dogs that were living at the residence.          a duffel bag in the back bedroom together with his clothes and
                                                                   tools. Gilreath then asked Dickason for permission to look
  FBI Special Agent Steven Fisher testified that, after            for the ID in the bedroom. Dickason told Gilreath that he
arresting Jones, he and two Knoxville police officers went         could and pointed to the back bedroom where the duffel bag
back to the residence, even though they had been denied            containing the ID was located.
consent to search by Jones. Fisher testified that their purpose
was not to seek consent for a search, but instead to determine       Gilreath walked to the room and found the duffel bag.
the identity of the two individuals at the residence. He and       While there, he observed a rifle leaning up in the corner of the
the two Knoxville police officers ultimately went to the front     bedroom and what appeared to be two other firearms and a
door and asked to speak to the occupants. Fisher testified         crossbow. When the duffel bag was opened, Gilreath saw a
that, had the individual answering the door refused to speak       pipe apparently used to smoke crack cocaine.
to them, he and the police officers would have left the
premises.                                                            The residence was then secured while the officers sought a
                                                                   federal search warrant. Special Agent Steven Fisher
 Officer Kenneth Gilreath of the Knoxville Police                  submitted an affidavit in conjunction with the application for
Department knocked on the door, while Fisher waited outside        a search warrant, expressly noting that Jones had denied
No. 01-6036                      United States v. Jones      5    6    United States v. Jones                     No. 01-6036

permission for a consensual search of the residence. The             The Supreme Court has clearly stated that “the Fourth
affidavit further described the interview of Teasley conducted    Amendment has drawn a firm line at the entrance to the
by Officer Gilreath in the foyer of the residence. Fisher         house.” Payton v. New York, 445 U.S. 573, 590 (1980)
further averred that, while in the foyer, the officers observed   (holding that the Fourth Amendment prohibits the police from
Dickason. After questioning Dickason, the affidavit noted         making a warrantless and nonconsensual entry into a suspect's
that Dickason gave Gilreath permission to retrieve his duffel     home in order to make a routine felony arrest). In addition,
bag from a bedroom that Dickason had occupied the night           a prior decision of this court notes that “the Supreme Court
before.                                                           has firmly and repeatedly rejected the proposition that the
                                                                  Fourth Amendment offers no protection against government
  Jones contends that after he refused consent to search,         entry into a home unless the entry is for the purpose of
neither Teasley nor Dickason, both of whom had lesser             performing a traditional ‘search’ or ‘seizure.’” United States
possessory rights to the premises than Jones, could give          v. Rohrig, 98 F.3d 1506, 1511 (6th Cir. 1996) (holding that
lawful consent for the officers to enter the premises. For the    although police officers entered a home for the sole purpose
reasons set forth below, we agree.                                of turning down the stereo, Fourth Amendment protections
                                                                  were triggered). This means that even if we were to accept
                      II. ANALYSIS                                the contention that Officer Gilreath entered the residence
                                                                  solely for the purpose of continuing his conversation with
  This court reviews the district court’s findings of fact in a   Teasley, his conduct would not be insulated from Fourth
suppression hearing under the “clearly erroneous” standard,       Amendment analysis.
while the district court’s conclusions of law are reviewed de
novo. United States v. Pennington, 328 F.3d 215, 216-17 (6th         The district court found that Teasley affirmatively gave
Cir. 2003). In order to uphold the ruling of the district court   Gilreath permission to enter the residence. Because we
that denied Jones’s motion to suppress, we must find that         believe that this is a ruling that could have gone either way,
Officer Gilreath was lawfully admitted to the residence by        it was not clearly erroneous. Anderson v. Bessemer County,
Teasley, and also that his subsequent progression through the     470 U.S. 564, 570 (1984) (“Where there are two permissible
house once inside was within the bounds of the Fourth             views of the evidence, the factfinder’s choice between them
Amendment.                                                        cannot be clearly erroneous.”). We therefore turn to the
                                                                  question of whether Teasley had the authority to give that
  As an initial matter, we note that the magistrate judge         permission. The question of when an employee’s consent is
referred to both Teasley and Dickason as overnight guests         sufficient for entry into a residence has not been treated
throughout his analysis. Dickason admitted that he had slept      uniformly by the courts. 3 Wayne R. LaFave, Search and
in the residence, but there is no evidence in the record          Seizure: A Treatise on the Fourth Amendment, §8.6(c) (3d
suggesting that Teasley was anything more than a handyman.        ed. 2002). Some have relied on a theory of agency, while
Because this factual finding of the magistrate judge was          others depend entirely on whether the employee had apparent
clearly erroneous, we refer to Teasley below as an employee       authority. Id. In general, the cases have engaged in a fact-
of Jones. Even labeling Teasley as an overnight guest,            specific analysis of the level of responsibility given to the
however, would not change what we conclude is the proper          employee. If the employee’s job duties include the granting
outcome of this case.                                             of access to the premises, authority to consent is more likely
                                                                  to be found. A caretaker left in charge of a home for several
No. 01-6036                       United States v. Jones       7    8    United States v. Jones                      No. 01-6036

weeks, for example, might have authority to permit entry,              Officer Gilreath knew that the individual who opened the
while a worker who is present on a more limited basis would         door was simply a handyman. This fact, combined with
not. Id.                                                            Jones’s prior denial of consent to a search, made it impossible
                                                                    for a “man of reasonable caution” to believe that Teasley had
   In this case, Teasley, a handyman, clearly lacked actual         the authority to consent to a search of the residence, or even
authority to permit Officer Gilreath to enter the residence. His    to permit entry. Because Teasley had neither actual nor
authority, even assuming that he had any, would have ceased         apparent authority to admit Officer Gilreath to the residence,
at the point that Jones denied consent to a search, which had       the warrantless entry was unlawful. This means that all of
to be understood by Officer Gilreath to include a denial of         Officer Gilreath’s conversations and discoveries after he
entry. Although it is true that an employee does in some            entered must be excluded under the “fruit of the poisonous
instances have sufficient authority to consent to entry into or     tree” doctrine. Northrop v. Trippett, 265 F.3d 372 (6th Cir.
a search of his employer’s residence, the lesser, and               2001) (“[T]he fruit of the poisonous tree doctrine provides
necessarily derivative, interest of the employee cannot             that evidence discovered as the indirect result of a Fourth
override the greater interest of the owner. When the primary        Amendment violation is inadmissible . . . .”). We therefore
occupant has denied permission to enter and conduct a search,       need not reach the propriety of Officer Gilreath’s actions once
his employee does not have the authority to override that           inside the residence.
denial. See United States v. Impink, 728 F.2d 1228, 1234 (9th
Cir.1984) (stating that “when the police intentionally bypass                           III. CONCLUSION
a suspect who is present and known by them to possess a
superior privacy interest, the validity of third party consent is     For all of the reasons set forth above, we REVERSE the
less certain”). An individual with an equal interest in the         judgment of the district court and REMAND the case for
residence, such as a spouse or cotenant, would presumably           further proceedings consistent with this opinion.
have such authority, but that is not the case here. LaFave,
§ 8.6(c).
  We next turn to the question of whether any reasonable
person would have believed that Teasley had apparent
authority to consent to Gilreath’s entry into the residence.
This court has previously held that “[w]hen one person
consents to a search of property owned by another, the
consent is valid if the facts available to the officer at the
moment . . . warrant a man of reasonable caution in the belief
that the consenting party had authority over the premises.
Thus, there is no violation of the Fourth Amendment if, under
the totality of the circumstances, the officer performing the
search has relied in good faith on a person’s apparent
authority.” United States v. Campbell, 317 F.3d 597, 608 (6th
Cir. 2003) (internal quotation marks and citations omitted).
No. 01-6036                       United States v. Jones      9    10   United States v. Jones                      No. 01-6036

                    _________________                              whether the officers should go to Jones’ residence and try to
                                                                   identify some of the people who had been observed at the
                        DISSENT                                    residence earlier in the day.
                    _________________
                                                                     When the officers arrived at Jones’ residence, Agent Fisher
  KENNEDY, Circuit Judge, dissenting. Contrary to the              hung back near the street to maintain a clear view toward the
majority, I believe that the facts available to Officer Gilreath   back of the residence to protect Officers Gilreath and
at the time he asked permission to step into the foyer of          Kingsbury’s safety as they went up and knocked on the door.
Jones’ home were such as to warrant a reasonable belief that       The officers were concerned about the large dogs, which
Teasley had sufficient authority over the premises to consent      included some rottweilers, they had seen earlier. Fisher
to Gilreath’s entry for the purpose of continuing the              remained in this position for “short period of time” before
conversation with Teasley, even in light of Jones’ prior denial    approaching the front porch himself.
of consent to search the residence. Accordingly, I
respectfully dissent.                                                Officer Gilreath testified that a black male responded to his
                                                                   knock on the door. Officer Gilreath’s testimony as to the
  When reviewing the denial of a motion to suppress, this          substance of his conversation with the black male is as
Court reviews the district court’s factual findings for clear      follows:
error and its legal conclusions de novo. United States v.
Taylor, 248 F.3d 506, 511 (6th Cir. 2001). I disagree with the       [W]hen he came to the door I identified myself. I
majority that the record supports a finding that Officer             showed him my badge and my ID and I asked him who
Gilreath knew that Teasley was a hired handyman when he              he was. He told me James Teasley and he seemed kind
knocked on the front door of the house, questioned Teasley           of nervous. I asked him, well, Mr. Teasley, what are you
briefly, asked to step inside, and Teasley responded “sure” to       doing here and he said cleaning up. I said, Mr. Teasley,
Gilreath’s request to enter.                                         I said, you are a little nervous, you don’t have any
                                                                     warrants or anything on you, do you, and he says, well,
  Officers Gilreath and Kingbury conducted surveillance of           I don’t know. I said, well, either yes or no and he says,
Jones’ home on the day of, but prior to, Jones’ arrest.              I don’t know. I said, is that a maybe? He says, maybe.
Gilreath testified that he observed a white male working on a        I said, well, can I talk to you for a minute? Can I come in
car in Jones’ driveway and a black male feeding a couple of          and talk to you? He says, sure. He steps back and I step
dogs on a screened-in back porch. Gilreath testified that the        directly inside the door.
black male he observed could have been Teasley. Gilreath
also testified that “[t]here was a lot of activity in and around   The district court credited Gilreath’s testimony that Teasley
the house, with people coming and going.”                          responded “sure,” giving express permission to enter the
                                                                   foyer.
  When Agent Fisher asked Jones if he could search Jones’
residence, he also asked who was at the residence. According         At the moment Officer Gilreath was given permission to
to Fisher, Jones replied that “family members were back at         enter Jones’ dwelling, he knew that Jones had claimed that
the residence.” Fisher then conferred with Officers Gilreath       “family members” were at his home, that Teasley resembled
and Kingsbury, who were present at the arrest scene, as to         the man Gilreath had observed feeding dogs on the back
No. 01-6036                                United States v. Jones          11    12       United States v. Jones                         No. 01-6036

porch earlier in the day, and that Teasley, who was standing                     have the authority to permit the police to enter the residence,
with a mop and bucket, had explained that he was cleaning                        despite Jones’ prior denial. The majority relies solely on the
up, when asked to explain his presence. Under these                              entry to find that all the evidence obtained after entry,
circumstances, a reasonably cautious officer could reasonably                    including the proceeds of the search warrant, should be
assume that Teasley was a member of the household1 and, as                       suppressed. Yet the entry was not a search and no
such, had the authority to at least consent to Officer Gilreath’s                observation of criminal conduct was made upon entering.
entry into the residence for the purpose of completing the                       The majority does not contend that Dickason, known to
conversation. This Circuit has held that in applying the test                    Gilreath as an overnight guest for at least two days, could not
to determine whether a consent to entry was valid, the actual                    consent to the entry of Dickason’s bedroom. As an overnight
relationship between the consenter and owner is not critical;                    guest, Dickason had authority to permit Gilreath to go the
rather, it is how the relationship would appear to the officer                   bedroom to get Dickason’s identification. There Gilreath
that is critical. United States v. Jenkins, 92 F.3d 430, 436 (6th                observed the gun in plain view, which provided the
Cir. 1996). Unless Teasley provided Officer Gilreath with                        information used to secure the search warrant.2 While I agree
additional information that would have altered the default                       that Gilreath’s entry is not isolated from Fourth Amendment
assumption that the consenter has authority over the property,                   analyses, I would hold that each step of the officers’ conduct
a reasonable officer may assume that someone who comes to                        was reasonable under the circumstances. I would, therefore,
the door after the knock has authority to consent to police                      affirm the district court order denying the motion to suppress
entry into the dwelling. Id. at 437.                                             and affirm the conviction.
   Only Agent Fisher testified that Teasley “was there to clean
the house. He was kind of like a hired individual.” Officer
Gilreath did not testify that Teasley identified himself as a
person hired to clean the house or that he otherwise was
aware that Teasley was hired help. It is clear that Fisher was
not present on the porch when Teasley said he was “cleaning
up.” Fisher’s testimony as to Teasley’s employment status
should not be credited in determining what Gilreath knew
when he acted on Teasley’s consent to enter. While Fisher
refers to Teasley as a handyman, the basis for this conclusion
is not established. Family members also can, and do, “clean
up.”
  The fact that Jones had denied the officers’ request to
search his residence does not alter the analysis. As the
majority observes, an individual with an equal interest in the
                                                                                      2
residence, such as a domestic member of the household, could                           Officer Gilreath recognized the gun as contraband because Jones
                                                                                 had just been arrested on an outstanding warrant for po ssession of a
                                                                                 firearm by a convicted felon and, prior to the officer’s entry into the
    1
                                                                                 bedroom, Dickason had admitted to Gilreath that he had spent time in
        Jones is blac k as was the female with him at the tim e of his arrest.   prison.
