Answering and Not Answering Questions That Aren’t Asked

United States v. Staggers is a case out of New Orleans involving three defendants who were jointly indicted and tried on charges relating to a conspiracy to distribute heroin. One defendant (Morrison) was acquitted of the conspiracy charges, but found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). His Guidelines range was 235 to 293 months in prison (or about 20 to 24 years), but the district court varied downward to the mandatory minimum of 15 years. On appeal, Morrison made two arguments for vacating his conviction:

  1. That the Government was required to but failed to prove that he knew he was a felon, in violation of Rehaif v. United States, 139 S.Ct. 2191 (2019);
  2. That the evidence supporting his conviction was obtained in violation of the Fourth Amendment because the police did not properly obtain consent to search his home.

The Fifth Circuit rejected his first argument, but accepted his second, vacating the conviction and remanding for a determination of whether the police had consent to enter his home without a warrant.

Rehaif and Knowledge of Felon Status

Section 922 defines a crime: “It shall be unlawful for any person . . . who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce, any firearm or ammunition . . . .” 28 U.S.C. § 922(g)(1). This is often short-handed to being a “felon in possession.” Section 924 provides for punishment: “Whoever knowingly violates subsection . . . (g) . . . of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” 28 U.S.C. § 924(a)(2). But if that person “has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another,” the ten-year minimum is enlarged to fifteen years. 28 U.S.C. § 924(e)(1).

In Rehaif, the Supreme Court broke down the crime defined by sections 922(g) and 924(a)(2) and (e)(1) as having four elements:

  1. a status element (here, having been convicted of a crime punishable by imprisonment for a term exceeding one year),
  2. a possession element,
  3. a jurisdictional element (the part about “in or affecting commerce”), and
  4. a firearm element.

The Court then held that to prove that a defendant “knowingly violate[d]” section 922(g), and therefore is subject to punishment under section 924, the Government must prove that the defendant had knowledge of the first, second, and fourth elements. Rehaif, 139 S.Ct. at 2195-96.

In Morrison’s case, however, the jury was only asked whether Morrison had knowledge of the second and fourth elements — not whether he knew he had the relevant status. (This may sound like a dumb thing to ask a jury, but the relevant status is being convicted of a crime punishable by more than a year in prison, not whether he was actually punished by more than a year in prison. Someone sentenced to less than a year or even right at a year in prison might not know he could have been sentenced longer.)

That should be the end of the case, right? The Government failed to prove its case beyond a reasonable doubt on all the required elements. Not quite. Morrison didn’t raise the issue, so the Govenment’s failure to carry its burden is reviewed for “plain error.”

To obtain reversal under the plain error standard, an appellant must show three elements and convince the court of appeals to exercise its discretion to correct the error. Puckett v. United States, 556 U.S. 129, 135 (2009). Here, the Fifth Circuit declined to exercise its discretion for three reasons. First, Morrison never argued that he “actually lacked knowledge of his status as a felon.” Second, the “record before us . . . shows that Morrison must have known that he was a convicted felon.” And third, the panel is “confident” that if the knowledge-of-felon-status element had been in play, “Morrison would have stipulated” to it. In other words, if the jury had been asked to determine whether Morrison knew he had the relevant status, the jury would have said yes. No need to send this case back to the jury to ask a question we all know the answer to.

It seems unfair on some level to put the burden of objecting on Morrison. Rehaif came out after Morrison’s trial but before the appeal was decided. If Rehaif changed the rules, which it seemed to do, how could Morrison know he was supposed to object? On the other hand, if Rehaif did change the rules, how was the Government supposed to know what it had to prove under the new, not-yet-announced rules? It seems to me that the plain error standard is a bit of a compromise between the two positions. It allows the court of appeals to look at the issue in this case, in these circumstances, and decide whether it affected things in a fundamentally unfair way. Sometimes, it operates as a safety valve to let courts address deeply unfair situations. Usually, it lets the the court of appeals shrug and move on.

Consent to be Searched

The Fourth Amendment is pretty clear:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .

U.S. Const. amend. IV.

A search with a valid warrant is reasonable, but searching “a person’s home [without a warrant] is presumptively unreasonable, and it is the government’s burden to bring the search within an exception to the warrant requirement.” United States v. Aguirre, 664 F.3d 606, 610 (5th Cir. 2011). Here, the Government claimed to have consent — that Morrison or somebody with authority consented to the search of his home. To show consent, the Government had to prove (1) that it received consent, (2) that was voluntarily given, (3) by someone with actual or apparent authority to consent, and (4) that the search did not exceed the scope of the consent given. United States v. Freeman, 482 F.3d 829, 831-32 (5th Cir. 2007). Morrison denied each of the first three elements.

First, define the search.

The basic circumstances are these. One day, at 6 o’clock in the morning, two police officers (Bordelon and Biondolillo) knocked on the door of Morrison’s house. Morrison’s girlfriend (Shlonda Jupiter) answered the door. What happened next is what really matters.

According to the Government’s witnesses, the three talked for a minute, and Ms. Jupiter “stepped back and opened the door some more . . . kind of moving out the way . . . allowing us in.” At the same time, apparently from the doorway, the police saw Morrison “in the hallway behind” Jupiter, “call[ed] out to him” to ask “whether he could come inside and talk,” and Morrison “answered in the affirmative.” (Slip Op. at 5.)

But according to Ms. Jupiter, she “stood between the door and the doorframe while talking to Bordelon and Biondolillo,” but they “pushed the door open and came bumping in” anyway. Once inside, they waited in the living room until Morrison came out of the bedroom. (Slip Op. at 5-6.)

The police smelled marijuana, read Morrison his rights, and asked him to sign a consent-to-search form. Bordelon either “explained its contents” or threatened to take his kids away and Ms. Jupiter to jail. (Slip Op. at 5-6.) Either way, Morrison signed the form, and the police asked whether there were any guns in the house. Morrison told them about one in his bedroom. They found it, partially loaded. (Slip Op. at 4.) That firearm was the basis of his conviction under section 922(g)(1).

The search here occurred when the police entered the house and started asking questions and looking for things.

Then, look for the consent.

Unlike many other areas of life, consent to be searched by the police “does not need to be explicit” but “may . . . be inferred from actions that reasonably communicate consent,” including “silence or failure to object [that] follows a request for consent.” (Slip Op. at 15.) The Government argued that it received implied consent to enter the house when Ms. Jupiter “kind of mov[ed] out the way.” (Slip Op. at 5, 15.) The Fifth Circuit rejected this argument for two reasons.

First, there was a factual dispute about whether or not Ms. Jupiter in fact “kind of mov[ed] out the way.” The police said she did; she said she didn’t. The district court therefore had to make a credibility determination (i.e., decide whether it believed the police or Ms. Jupiter), which it did not do. Instead, it (wrongly) concluded that both accounts essentially showed consent. In other words, the Government had to prove (i.e., convince the district court) that it had consent to enter the home. Because it did not convince the district court, it did not prove consent.

Second, even if she did “kind of mov[e] out the way,” silence or failure to object can constitute implied consent “only if that silence follows a request for consent.” (Slip Op. at 15.) In other words, the case might be different if the police had asked Ms. Jupiter if they could come in and she had “kind of mov[ed] out the way.” But they didn’t, so her silence is not consent.

Even if consent is actually given, it must also be given voluntarily. This issue turns on the totality of the circumstances, described by a six-factor test. The Fifth Circuit noted that the conversation with Ms. Jupiter at the front door was “peaceful,” that the police “did not shout at or threaten [Ms.] Jupiter,” that their weapons were holstered, and that she had testified that “she ‘was about to shut the door’ on the officers when they barged in.” (Slip Op. at 18-19.) Thus, the Fifth Circuit concluded, assuming consent was in fact given, it was given voluntarily.

The last issue raised by Morrison was that Ms. Jupiter did not have authority to consent to the police entering the home. The Fifth Circuit made short shrift of this argument: “Because [Ms.] Jupiter lived with Morrison, the district court did not clearly err by concluding that she had actual authority” to consent. (Slip Op. at 20.)

No consent + no warrant = no evidence

In sum, the Fifth Circuit found that the Government had not carried its burden of proof on the first element, actual consent. Without actual consent, and without a warrant, the search was unreasonable and violated the Fourth Amendment. But because there was a factual dispute about whether consent was actually given, the Fifth Circuit remanded to the district court to make that determination.

Credits

Senior Circuit Judge Carolyn Dineen King authored the opinion, joined by Circuit Judges Edith Jones and Gregg Costa. It’s interesting to note that while the case came out of New Orleans, all three judges came from Houston.

Public defender Samantha Jean Kuhn signed the brief and made oral argument on behalf of Morrison.

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