                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0412n.06
                                                                                              FILED
                                            No. 09-5368
                                                                                         Jun 27, 2011
                           UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )         ON APPEAL FROM THE
        Plaintiff-Appellee,                                )         UNITED STATES DISTRICT
                                                           )         COURT FOR THE WESTERN
v.                                                         )         DISTRICT OF TENNESSEE
                                                           )
FRANKIE JOE LITTLE,                                        )                  OPINION
                                                           )
        Defendant-Appellant.                               )



BEFORE: MARTIN, NORRIS, and SILER, Circuit Judges.


        ALAN E. NORRIS, Circuit Judge. Defendant Frankie Joe Little appeals his conviction

for the sexual exploitation of a minor, 18 U.S.C. § 2251(a). Defendant was accused of taking four

nude photographs of a fourteen year-old girl with the camera of his cell phone. After his motion to

suppress evidence was denied by the district court, defendant entered a guilty plea which preserved

the right to appeal that decision. He now contends that the district court erred in two respects: first,

in holding that he consented to the investigating police officer’s warrantless entry into the home of

his mother; and, second, in finding that exigent circumstances justified the officer’s seizure of his

cell phone.



                                                   I.
No. 09-5368
United States v. Little

       On October 21, 2007, the victim, identified only as I.W., and her guardian arrived at the

Lexington, Tennessee police department and spoke with Lieutenant Michael Harper. According to

Harper’s testimony at the suppression hearing, the guardian, whom he initially misidentified as

I.W.’s mother, “wanted to report that her daughter had had some sexually explicit photographs made

of her.” The guardian indicated that defendant had taken the photographs at his mobile home while

I.W. was lying naked on his bed. While speaking to Harper, the victim sent a text message to

defendant “that she wanted him to forward the pictures that he had taken of her for her to . . . let a

friend observe.” Defendant responded via text that he had already deleted them.

       Harper went to defendant’s home to speak with him; he was not there. He then went to the

home of defendant’s mother. The officer testified that he knew defendant and his mother. Harper

found defendant at his mother’s house and explained his purpose while standing on the front porch:

       I advised him that Investigator Scottie Kizer was wanting to speak with him at the
       police department, and he asked me what about, and I told him I would rather Scottie
       explain it to him. At that point, he asked me if he did have to go over here, could he
       drive himself, and I advised him he could drive himself, I would follow him there.

Suppression hearing transcript, July 17, 2008 at 17.

Defendant asked if he could put on a shirt. Harper agreed and followed defendant into the house

without asking permission to enter. Defendant’s mother and a few children were also present.

       According to Harper, he intended to ask for defendant’s cell phone. Before he did so, the

phone rang and Harper “advised him not to answer the phone, that I wanted to take the phone into

my presence [sic] and take it with me.” Defendant handed him the phone. Harper did not tell him

that he could refuse to give up the phone, nor did he read defendant his Miranda rights.


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United States v. Little

       Defendant and Harper drove separately to the police department. After they arrived, Harper

directed defendant to Investigator Kizer. He also gave Kizer defendant’s cell phone. Later, Kizer

summoned Harper back to his office and defendant “brought the pictures up” while the two officers

stood nearby to make sure that defendant did not delete them. The pictures were as described by

I.W. For his part, Kizer testified that defendant was cooperative throughout the interview and

“pulled up” the photographs for Kizer without objection.

       As outlined below, the district court denied the motion to suppress. After accepting

defendant’s guilty plea, it sentenced him to 180 months of incarceration and eight years of supervised

release.

                                                 II.

       We review the district court’s factual findings for clear error and we may affirm the denial

of a motion to suppress on any grounds supported by the record; conclusions of law are reviewed de

novo. See United States v. Quinney, 583 F.3d 891, 893 (6th Cir. 2009); United States v. Allen, 106

F.3d 695, 700 n.4 (6th Cir. 1997). Evidence supporting the district court’s determination must be

seen “in the light most likely to support the district court’s decision.”           United States v.

Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999) (internal quotation marks omitted). Whether

a defendant gave his consent to a search is a factual issue and is therefore reviewed for clear error.

United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc).

       It is axiomatic that valid consent to search constitutes an exception to the Fourth

Amendment’s warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). The

government bears the burden of showing by a preponderance of the evidence that the totality of the

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No. 09-5368
United States v. Little

circumstances supports a conclusion that consent was given voluntarily.             United States v.

Mendenhall, 446 U.S. 544, 557 (1980). Even when a defendant initially declines to consent, her

subsequent actions, such as opening the trunk of her car, may indicate consent. United States v.

Flores, 48 F.3d 467, 468-69 (10th Cir. 1995).

       The district court gave the following reasons for its conclusion that defendant consented to

Harper’s entry into the house:

               Voluntariness is assessed by looking at the totality of the circumstances,
       including: the age, intelligence and education of the accused; knowledge of the right
       to refuse consent; and the coercive nature of the police behavior. Courts also
       consider the degree to which the accused cooperated with the police. United States
       v. Elkins, 300 F.3d 638, 648 (6th Cir. 2002). Voluntary consent must be
       “uncontaminated by duress, coercion, or trickery.” United States v. Jones, 641 F.2d
       425, 429 (6th Cir. 1981).

              In this case, there is no evidence that the police used coercion or trickery in
       an effort to enter the house. By all accounts, Officer Harper merely followed
       Defendant into the house when Defendant went in to get additional clothing. It was
       Defendant, not Officer Harper, who asked to go back into the house.

               Furthermore, the search was limited in both scope and duration. This is not
       a case in which officers sought entry to a suspect’s home for the purposes of
       searching for evidence or making an arrest . . . . Defendant’s own testimony
       indicates that Officer Harper followed right behind Defendant with a flashlight and
       watched him from the open doorway to the bedroom as Defendant finished getting
       dressed and gathered his belongings.

              The parties agree that Defendant was cooperative. In Elkins, the court’s
       finding of voluntary consent was based in part on th[e] fact that Defendant was
       cooperative and got police a ladder so they could search the attic. In the present case,
       Defendant was similarly cooperative. He did not resist Harper’s entry into the home.
       Furthermore, Defendant testified that he retrieved his cell phone from the bedroom
       while Harper stood in the doorway. He did not attempt to conceal the phone but led
       Harper directly to it. Like the defendant in Elkins, therefore, Defendant’s cooperation
       with the police suggests that he consented to Harper’s presence in the home.


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No. 09-5368
United States v. Little

               This is not a case in which Defendant conveyed “an expression of futility in
       resistance to authority” or merely “acquiesced” to the officer’s claim of authority.
       (Def.’s Mem. 15 (citing United States v. Worley, 193 F.3d 380 (6th Cir. 1999)). In
       Worley, consent was not voluntary because defendant’s response “you’ve got the
       badge, I guess you can” indicated a mere acquiescence to the police’s claim of lawful
       authority. 193 F.3d at 38[7]. In the present case, however, there was no dialogue
       whatsoever about Harper’s entry into the house. . . . Neither Defendant nor his
       mother protested, resisted, or commented.

Order Denying Motion to Suppress, October 2, 2008 at 16-18 (citation omitted).

       We agree with the district court’s legal analysis in almost every respect. Several factors

support its finding that defendant impliedly consented to Officer Harper’s entry into the house: 1)

he knew the officer; 2) he was cooperative throughout the encounter; 3) he raised no objection when

Harper followed him inside, and 4) the intrusion was limited in scope. Had Officer Harper asked

for permission to enter and had defendant behaved in the same manner, we would have no difficulty

affirming the district court’s finding of implied consent. Unfortunately, Harper neglected to do so

and logic dictates that a person cannot consent to a request that has not been made – particularly in

light of the fact that the government bears the burden of showing that consent was given voluntarily.

       Admittedly, we have found valid consent can occur not just by words but by gesture or

conduct as well. United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc). In Carter,

officers had suspicion that defendant, who was staying in a Red Roof Inn, was engaged in drug

trafficking. They knocked on his door and asked if they could enter. In response, “Carter stepped

back and cleared a path for the officers to enter.” Id. at 587. We reasoned as follows when

concluding that the totality of the circumstances supported the district court’s conclusion that

defendant gave his consent for the officers to enter:


                                                -5-
No. 09-5368
United States v. Little

       The investigating officers were instantly recognizable as policemen when Carter
       opened the door. They properly asked permission to enter, and Carter stepped back,
       letting them in. Any ordinary caller, under like circumstances, would understand
       assent to have been given, and the police are not held to a higher standard in this
       regard than an ordinary person.

Id. at 588 (citation omitted) (emphasis added). By contrast, in this case Harper neglected to ask for

permission to enter and instead, as the district court found, “merely followed Defendant into the

house when Defendant went in to get additional clothing.” Moreover, he conceded at the

suppression hearing that his objection was to secure the cell phone. While this circuit has not

considered whether the totality of the circumstances can ever support a finding of implied consent

in the absence of an explicit request for permission, the Eleventh Circuit has held that consent cannot

be inferred by the simple act of disengaging from conversation with an officer and walking into the

house. Bashir v. Rockdale Cnty., Ga., 445 F.3d 1323, 1329 (11th Cir. 2006). As explained earlier,

we agree with this approach. Officer Harper had two alternative ways that he could enter the

residence in compliance with the Fourth Amendment: obtain a search warrant or request and obtain

consent from defendant. He did neither and therefore his entry violated the Fourth Amendment and

the evidence acquired as a result of that unlawful entry – defendant’s cell phone and his subsequent

written statements based upon possession of the cell phone – must be suppressed.

       Finally, because we conclude that Officer Harper was in the residence in violation of the

Fourth Amendment, we need not reach the second issue: whether seizure of the cell phone was

justified either by exigent circumstances or the “plain view” exception to the Fourth Amendment.

The government concedes that exigent circumstances did not justify the initial entry and, that being

the case, the subsequent seizure of evidence was tainted.

                                                 -6-
No. 09-5368
United States v. Little

                                               III.

       The judgment of the district court is vacated.




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