                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0321n.06
                              Filed: June 5, 2008

                                             No. 07-5655

                           UNITED STATES COURT OF APPEALS
                                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
                                                           )
WILLIAM ABLES,                                             )                          OPINION
                                                           )
       Defendant-Appellant.                                )




BEFORE:        ROGERS, COOK, McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. After a law enforcement search of defendant William Ables’

residence revealed ammunition, a federal grand jury returned a one-count indictment that charged

Ables with being a felon in possession of ammunition. The district court subsequently denied Ables’

motion to suppress the evidence and statements resulting from that search, finding that Ables’ live-in

girlfriend had actual authority to consent to the search and that her consent was voluntary. During

the course of Ables’ trial, the district court also denied his motion for a mistrial, finding that the

government’s question about whether Ables’ son was in the hallway of the courthouse did not

provide sufficient grounds for a mistrial.

       Subsequently, a jury convicted Ables of being a felon in possession of ammunition as

charged in the indictment. The district court sentenced Ables to 48 months’ imprisonment followed
No. 07-5655
United States v. Ables

by three years of supervised release. On appeal, Ables argues that the district court erred in denying

his motions to suppress and for a mistrial.

                                          BACKGROUND

        In April 2005, Agent Steve Wiley of the Bureau of Alcohol, Tobacco, Firearms and

Explosives received information that Ables had firearms and sold drugs from his residence, a trailer.

In May 2005, Wiley conducted a criminal history search and determined that Ables previously had

been convicted of a felony.

        In November 2005, Wiley decided to act on the previously acquired information about Ables.

Specifically, on November 2, 2005, he and four other officers went to Ables’ residence at

approximately 7:15 p.m. When the officers arrived at the residence, a dog was running around the

yard and a woman named Cheryl Jobe met them at the front door.1 The officers asked to enter the

residence to get away from the dog, and immediately upon entering the trailer, Wiley noticed a

shotgun shell sitting on a stereo speaker.

        Wiley asked Jobe what her connection was to the trailer and she explained that she had lived

with Ables in the trailer for seven or eight months as Ables’ girlfriend. She explained that she

seldom left the residence, kept her belongings at the residence, frequently spent the night in the

master bedroom with Ables, and had access to all areas of the trailer. Jobe also indicated to the




        1
         Because Wiley and Jobe were the only witnesses who testified at the suppression hearing,
this account of the facts is based on a combination of their testimony, testimony that the district court
and the parties acknowledged was factually largely similar.

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officers that the residence belonged to Ables, that she did not pay the bills, and that she did not have

a set of keys for the residence.

       Because Ables was not present at the time and Jobe had control of the residence, the officers

requested Jobe’s consent to their search of the trailer. Wiley presented Jobe with a consent to search

form and asked her to sign it. She proceeded to read the form aloud to the officers, but she was

hesitant to sign it. Jobe told the officers that she was nervous because officers were present, that she

had made bad decisions in the past, and that if she did not consent to the search then the officers

would just return with a search warrant anyway. However, Jobe ultimately signed the form.

       Wiley testified that Jobe appeared sober at the time of consent. He also testified that while

Jobe might have seen holstered weapons on officers, the officers’ guns were only drawn when the

officers felt it necessary to check a room. While the officers searched, Jobe remained in the front

room with an officer in the event she decided to stop the search.

       On August 28, 2006, a federal grand jury indicted Ables on one count, charging him with

being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). After

holding a hearing on Ables’ motion to suppress on November 7, 2006, the district court issued an

oral ruling denying his motion to suppress. The district court also entered a written order, adopting

its oral findings and rulings on the motion to suppress.

       At trial, Wiley testified to essentially the same facts as he did at the suppression hearing. He

stated that immediately upon entering the house, he saw what appeared to be a 12-gauge shotgun

shell sitting on a speaker and later seized another round of 12-gauge ammunition inside a breadbox.

Two other officers testified that more ammunition was found in the master bedroom. Seven days

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United States v. Ables

after the search, on November 9, 2005, Ables voluntarily came to talk with Wiley at his office.

Wiley testified that Ables said that the ammunition found at his house was his and that while he was

aware that he was prohibited from possessing firearms, he was not aware that he was prohibited from

possessing ammunition.

        During the course of the trial, Ables testified in his own defense. On direct-examination,

Ables claimed that the ammunition was his son’s, not his. On cross-examination, the government

questioned Ables about his son. When the government asked a question about whether it was Ables’

son in the hallway of the courthouse, defense counsel objected and later made a motion for a mistrial

on the basis of that question. During the arguments to the district court regarding the motion for a

mistrial, the district court asked whether defense counsel’s ground for the mistrial was “[t]he fact

that the jury may have seen the defendant’s son in the building?” J.A. 190. Defense counsel

responded that:

               Not the fact that they may have seen him, Your honor, but the fact that Mr.
       Powell made reference to him and his description and his location in his questioning
       brings up -- Since the child did not testify, that brings in -- He was able to ask Mr.
       Ables about how big his son was and how old his son was, and I think all that was
       [fine] -- but to refer to a particular child that was not brought in, that was not a
       witness, that their observation of him would have no bearing on this case and should
       have no bearing on this case because he was not part of the proof in this case. There
       were no pictures presented. He was not brought in as a witness; yet, you know, Mr.
       Ables described him and he was mentioned, and that’s fine.

               But to refer to a particular child with glasses in the hallway and he has been
       here, number one, I submit that puts in the mind to the jury they’re to -- now they’re
       going out in the hallway and they’re going to look at him, which is exactly what the
       court has instructed them they can’t do, which is go outside and do additional
       research, similar to going to the scene, I would submit.



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               And also it may raise in their mind, well, if he was here, why didn’t he testify,
        which, of course, puts an additional burden on the defendant that should not be there
        and was, in essence, inferred, I would submit, by the questioning.

J.A. 190-91. The district court denied the motion for a mistrial, finding that it had no indication that

any of the jurors saw Ables’ son and, in any event, its instruction to consider the evidence presented

in the courtroom should suffice.

        The jury subsequently convicted Ables as charged in the indictment. In May 2007, the

district court sentenced Ables to 48 months’ imprisonment followed by three years of supervised

release. This timely appeal followed.

                                             ANALYSIS

Motion to Suppress

        We review a district court’s denial of a motion to suppress under two “complementary

standards.” United States v. Miller, 314 F.3d 265, 267 (6th Cir. 2002) (citation omitted). Findings

of fact are reviewed for clear error while conclusions of law are reviewed de novo. See United States

v. Dillard, 438 F.3d 675, 680 (6th Cir. 2006) (citation omitted). A factual finding is clearly

erroneous when, after reviewing the entire evidence, this court is left with the definite and firm

conviction that a mistake has been committed. See United States v. Navarro-Camacho, 186 F.3d

701, 705 (6th Cir. 1999).

        On appeal, Ables argues that the district court erred in two ways with respect to its denial of

his motion to suppress by finding that (a) Jobe’s consent to search Ables’ residence was voluntary

and intelligent; and (b) the police officers had a reasonable basis to conclude that Jobe had the

authority to consent to the search.

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       Voluntary and intelligent consent

       The determination of “whether a consent to a search was in fact ‘voluntary’ or was the

product of duress or coercion . . . is a question of fact to be determined from the totality of all the

circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). Accordingly, “the district

court’s decision regarding consent will not be overturned unless it is clearly erroneous.” United

States v. Bueno, 21 F.3d 120, 126 (6th Cir. 1994) (citation omitted).

       To determine if consent was voluntary, a district court must look at the totality of the

circumstances and examine the following factors: “the age, intelligence, and education of the

individual; whether the individual understands the right to refuse to consent; whether the individual

understands his or her constitutional rights; the length and nature of detention; and the use of

coercive or punishing conduct by the police.” United States v. Worley, 193 F.3d 380, 386 (6th Cir.

1999) (citation omitted).

       Ables argues that, in permitting the search, Jobe acquiesced to the officers’ authority rather

than voluntarily consented. The district court found that:

       [U]nder the circumstances the consent was, in fact, voluntary while she, Ms. Jobe,
       was reluctant and nervous, she was told the she had a right to refuse consent, she
       gave it anyway. She was told that she could stop them at anytime, she did not do
       that. She read the consent form, she initialed each line, she signed the form, and the
       fact that she now wishes she hadn’t done that is not sufficient to result in a
       suppression of the evidence.

J.A. 78-79. There is no basis in the record to conclude that the district erred in determining that Jobe

was of the proper age, education, and intelligence to understand her rights. Nor is there any evidence

that Jobe did not understand the officers’ questions or the nature of the request to search the


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residence. There is also no evidence that the officers ever threatened Jobe or attempted to coerce her

into giving her consent; rather the testimony from both Wiley and Jobe indicated that, as the district

court described, “they were having a cordial and reasonable conversation with each other.” J.A. 77.

       To the extent Jobe contends that her subjective belief that the officers would search the trailer

anyway, see J.A. 86, is grounds to find that the officers acted coercively, her argument fails. See

United States v. Ivy, 165 F.3d 397, 403 (6th Cir. 1998) (“[A]n ‘agent’s statements to the effect that

he would obtain a warrant if [the suspect] did not consent to the search does not taint [the suspect’s]

consent to a search.’”) (citation omitted). Here, Jobe, not the agents, made a statement that officers

would just return with a search warrant if she did not consent to the search.

       Moreover, Ables’ reliance on Worley to argue that Jobe simply was acquiescing to the

officers’ authority is also unpersuasive. In Worley, we held that “the district court did not commit

clear error in granting Worley’s motion to suppress after determining that his statement, ‘You’ve got

the badge, I guess you can,’ did not indicate consent to the search.” 193 F.3d at 387. In contrast to

Worley, Jobe was informed of her right to refuse to consent to the search as evidenced by her reading

aloud the consent form and signing it, and the officers confronted Jobe in a private residence as

opposed to an airport at issue in Worley where “it [is] easy for implicit threats or subtle coercion to

exert tremendous pressure on an individual to acquiesce to the officer’s wishes.” Id. (citations

omitted).

       Accordingly, it cannot be said the district court erred in finding that Jobe’s consent was made

both voluntarily and intelligently.

       Authority to consent

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        The authority to consent is a question of law to be reviewed de novo. See United States v.

Hudson, 405 F.3d 425, 431 (6th Cir. 2005). The Fourth Amendment generally prohibits warrantless

searches of homes. See United States v. Haddix, 239 F.3d 766, 767 (6th Cir. 2001). This general

prohibition, however, does not apply where the police obtain voluntary consent from the individual

whose property is searched or from a third party who possesses common authority over the premises.

See United States v. Gillis, 358 F.3d 386, 390 (6th Cir. 2004) (citing Illinois v. Rodriguez, 497 U.S.

177, 181 (1990)). “Common authority is not to be implied from a mere property interest that a third

party has in the property, but from ‘mutual use . . . by persons generally having joint access or

control for most purposes.’” Id. (quoting United States v. Matlock, 415 U.S. 164, 172 n. 7 (1974)).

        Here, the district court found that Jobe had actual authority to consent to the search. Ables

first argues that Jobe lacked authority to consent to a search of his residence. Ables next contends

that to the extent the police officers were confronted with an ambiguous situation, they had a duty

to inquire further about Jobe’s authority and failed to do so here.

        Ables’ arguments miss the mark. While Jobe indicated to the officers that the trailer

belonged to Ables and that she did not have a key, she also indicated that she lived with Ables for

seven or eight months as his girlfriend, kept her belongings there, shared the master bedroom with

Ables, seldom left the trailer, and had access to all areas within the trailer.

        Ables points this court to no authority, and we find none, that suggests it is even relevant that

Jobe “indicated to the officers that she did not believe that she had the authority to consent to a

search.” J.A. 65. Moreover, no precedent suggests that not having a key to a residence should

override all other indicia that Jobe had the requisite control of the residence to consent to the search.

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Indeed, given that Jobe told officers she lived with Ables for seven or eight months, that she seldom

left the trailer, and that she had access to all areas, her not having a key to the residence suggested

to the officers that she did not need a key.

        Here, Jobe’s description of her mutual use of the property was enough for the officers to

establish her actual authority to consent. It was not, as Ables contends, an ambiguous situation that

required further inquiry. See, e.g., United States v. Grayer, 232 F. App’x 446, 449 (6th Cir. 2007)

(finding that “officers were not confronted with an ambiguous situation” about consent when person

consenting was “the homeowner’s live-in girlfriend”); United States v. Moore, 917 F.2d 215, 222-23

(6th Cir. 1990) (finding that live-in girlfriend was a joint occupant of the defendant’s residence that

had common authority over the premises to consent to search of the premises); United States v.

Kirkpatrick, No. 97-5583, 1998 WL 869978, at *3 (6th Cir. Dec. 1, 1998) (finding that girlfriend

could validly consent to search of residence that she shared with the defendant and in which she had

access to all of its areas).

        Accordingly, the district court did not err when it denied Ables’ motion to suppress, and

therefore the evidence and the statements at issue appropriately were not suppressed as fruit of the

poisonous tree.

Motion for a Mistrial

        We employ an abuse-of-discretion standard when reviewing a district court’s denial of a

motion for a mistrial. See United States v. Cope, 312 F.3d 757, 779 (6th Cir. 2002). During the

government’s cross-examination of Ables, counsel asked Ables if his son was “the young man out

in the hallway wearing glasses?” Defense counsel objected on grounds that the “prosecutor is

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testifying,” but the district court overruled that objection. On the basis of that single question, Ables

moved for a mistrial the following day that the district court subsequently denied.

        Ables argues the question was improper for two reasons: (1) it permitted the jurors to rely

upon their own investigation by suggesting they rely upon their observation of Ables’ son in the

hallway and (2) it shifted the burden to Ables by raising in the jury’s mind the question of why a son,

who was available in the hallway, did not testify. His arguments fail.

        We have explained the standards for evaluating such claims:

        We evaluate claims of prosecutorial misconduct using a two-step inquiry. “First, the
        court must determine if the government’s statements were improper.” United States
        v. Abboud, 438 F.3d 554, 584 (6th Cir. 2006). If we determine that the statements
        were in fact improper, then we “must decide whether the statements were flagrant.”
        Id. The “flagrancy inquiry” involves four factors: (1) whether the remarks tended to
        mislead the jury or to prejudice the accused [including whether the trial judge gave
        an appropriate cautionary instruction to the jury]; (2) whether they were isolated or
        extensive; (3) whether they were deliberately or accidentally placed before the jury;
        and (4) the strength of the evidence against the accused. Id. (citation omitted).

United States v. Roach, 502 F.3d 425, 432 (6th Cir. 2007) (alteration in original); see also United

States v. Wiedyk, 71 F.3d 602, 607-08 (6th Cir. 1995) (applying same analysis to review a district

court’s denial of a mistrial with respect to two improper questions asked by a prosecutor).

        Whether question was improper

        We begin, and end, our analysis of Ables’ prosecutorial misconduct claim by considering

whether the prosecutor’s question was improper. See United States v. Barnett, 398 F.3d 516, 522

(6th Cir. 2005). “It is axiomatic that a defendant in a criminal trial need not testify or produce any

evidence, and that a prosecutor may not comment on the absence of such.” United States v. Bond,

22 F.3d 662, 669 (6th Cir. 1994) (citing United States v. Drake, 885 F.2d 323, 323 (6th Cir. 1989)).

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However, a prosecutor may “summarize the evidence and comment on its quantitative and

qualitative significance.” Id. “Although a prosecutor is entitled to comment on a defendant’s failure

to call witnesses to contradict the government’s case, the prosecutor must avoid commenting in such

a way that he treads on the defendant’s constitutional rights and privileges.” United States v. Clark,

982 F.2d 965, 968 (6th Cir. 1993) (citation omitted). We recognize that improper burden-shifting

is a violation of due process. See United States v. Newton, 389 F.3d 631, 638 (6th Cir. 2004),

vacated on other grounds, 546 U.S. 803 (2005).

       The question at issue was not improper. Ables chose to take the stand and testify on his own

behalf. Ables himself repeatedly raised the issue of his son when he claimed that the ammunition

found in his trailer was his son’s, not his. Both parties agree that the government’s line of

questioning about Ables’ son under such circumstances was permitted as a general matter.

       Here, it is undisputed that the government did not directly comment on Ables’ failure to call

his son to testify, yet Ables argues that the government’s isolated question about whether the son was

in the hallway was itself grounds for a mistrial. That argument fails.

       Read in context, the disputed question came at the end of a series of questions that related

to the size of Ables’ son and did not directly suggest anything about his son not testifying.

Moreover, the question was not intended to shift the burden of proof, suggest the jury rely on

evidence outside the record, or otherwise mislead the jury or prejudice the defendant. Rather, the

disputed question was a part of a line of questioning intended simply to dispel Ables’ own

suggestion that the ammunition was his son’s, not his.



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        Even if the question suggested the son could have testified but did not, it would not have

been improper given that Ables invited the question based on his trial strategy of arguing the

ammunition was his son’s, not his. See Barnett, 398 F.3d at 522-23 (prosecutor’s remarks must be

considered within the context of the trial as a whole, with attention to whether they may have been

invited by defense counsel’s conduct). Indeed, a prosecutor is allowed to comment on the failure

of a defendant to call corroborating witnesses for its theories under such circumstances. See Bond,

22 F.3d at 669 (finding prosecutor’s comments about lack of alibi witnesses did not warrant

reversal); Newton, 389 F.3d at 638 (finding no misconduct in prosecutor’s reply to defense

insinuations that government hid evidence from the jury); United States v. Beddow, 957 F.2d 1330,

1336-37 (6th Cir. 1992) (prosecutor’s comment about failure of defendant’s brother to testify in

support of defendant’s claim that brother loaned him money did not warrant reversal); Traylor v.

Price, 239 F. App’x 235, 242 (6th Cir. 2007) (stating “the prosecutor is permitted to comment on

the improbability of the defendant’s theory once a defendant makes an issue legally relevant by

advancing that theory”); see also United States v. Schultz, 698 F.2d 365, 367 (8th Cir. 1983) (stating

“[t]he prosecutor is free to comment on the failure of a defendant to call an available alibi witness”)

(citation omitted); United States v. Bubar, 567 F.2d 192, 199 (2d Cir. 1977) (holding “[t]he

prosecutor is entitled to comment on the defendant’s failure to call witnesses to contradict the factual

character of the government’s case, . . . as well as his failure to support his own factual theories with

witnesses”) (citations omitted); but see United States v. Hernandez, 145 F.3d 1433, 1439 (11th Cir.

1998) (stating “a prosecutor may not comment about the absence of witnesses or otherwise attempt

to shift the burden of proof”).

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       Accordingly, the question at issue was not improper and therefore the district court did not

abuse its discretion in denying Ables’ motion for a mistrial. There is no need for us to address

whether the question was flagrant because the question was proper in the first instance. On that basis

alone, we affirm the district court’s denial of Ables’ motion for a mistrial.

                                          CONCLUSION

       For all the aforementioned reasons, we AFFIRM the judgment of the district court.




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