United States District Court, D. Montana, Billings Division
OPINION AND ORDER
P. WATTERS UNITED STATES DISTRICT JUDGE.
the Court is Defendant Brandon James Lynn's Motion to
Suppress evidence found during a warrantless search of the
apartment where Lynn resided with his girlfriend, Jami Nava.
(Doc. 41). For the foregoing reasons, the Court GRANTS
morning of November 16, 2014, while at City Hall, Billings
Police Officer Andrew Sanders saw that an officer had posted
photos of two men suspected of stealing a television. Officer
Sanders recognized the two men as Brandon Lynn and Bradley
Champagne. Due to prior dealings with Lynn, Officer Sanders
knew Lynn resided with his girlfriend, Jami Nava, in an
apartment in South Billings. Officer Sanders also knew there
was an active probation violation warrant for Champagne's
arrest. Officer Sanders decided to go to Lynn's apartment
to speak with Lynn about the theft and to see if Champagne
was staying there.
Sanders requested Billings Police Officer Ben Beck accompany
him as back up. The two officers met in the parking lot
outside the apartment. The apartment was located on the
ground floor. Officer Beck followed Officer Sanders as they
approached the apartment's front door. Officer Sanders
covered the door's peep hole and knocked heavily on the
minute or two, Nava answered the door, opening it all the
way. Officer Sanders, standing on the front porch, asked Nava
if Champagne was in the apartment. Nava said "no."
Officer Sanders asked Nava if he could speak with Lynn. Nava
said "yes, I will go get him, " and turned around.
Nava did not give verbal consent for the officers to come in,
nor did she gesture to the officers to follow her inside.
Nava walked down a small hallway to the back bedroom where
Lynn was sleeping.
Nava turned around, Officer Sanders followed her into the
apartment. Inside the apartment, Officer Sanders observed and
seized drug paraphernalia. Based upon the drug paraphernalia
seized, a search warrant was applied for, granted, and
executed on the apartment, which uncovered more drug
paraphernalia and related evidence.
filed a motion to suppress the evidence seized from the
Standard of review
motion to suppress, the Ninth Circuit reviews legal
conclusions de novo and factual findings for clear error.
United States v. Basher, 629 F.3d 1161, 1167 (9th
searches and seizures inside a home are presumptively
unreasonable. Payton v. New York, 445 U.S. 573, 586
(1980). Evidence recovered following an illegal entry of the
home is inadmissible and must be suppressed. United
States v. Arreguin, 735 F.3d 1168, 1174 (9th Cir. 2013)
(citing United States v. Shaibu, 920 F.2d 1423, 1425
(9th Cir. 1990)).
search conducted pursuant to a valid consent is a
well-recognized exception to the warrant requirement.
Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).
To prove consent, the government must show the consent was
(1) unequivocal and specific and (2) freely and intelligently
given. Basher, 629 F.3d at 1167 (citing
Shaibu, 920 F.2d at 1426). The defendant's
failure to object to entry does not establish consent.
Shaibu, 920 F.2d at 1427. In limited circumstances,
the court may infer from nonverbal actions that the consent
was unequivocal and specific. United States v.
Impink, 728 F.2d 1228, 1232 (9th Cir. 1984). But rarely
may the Court infer consent when the police do not verbally
request permission to enter. Lopez-Rodriguez v.
Mukasey, 536 F.3d 1012, 1017 (9th Cir. 2008). The
government's burden of proof is heavier where consent is
not explicit because consent "is not lightly to be
inferred." Impink, 728 F.2d at 1232. Whether
consent was given is based on the totality of the
circumstances. Impink, 728F.2datl234.
argues Officer Sanders illegally entered the apartment
because he did not have a warrant and a warrant exception did
not exist. The government responds Officer Sanders had valid
consent to enter the apartment. The government offers no
other argument justifying ...