holding that where “officers specifically asked if they could come in,” and defendant “was not threatened, coerced, or tricked,” opening the door in response and standing aside to allow officers’ entry was nonverbal consent
How later courts described this case
- holding that where “officers specifically asked if they could come in,” and defendant “was not threatened, coerced, or tricked,” opening the door in response and standing aside to allow officers’ entry was nonverbal consent
- concluding that a defendant’s consent to a police search of his motel room was voluntary in part because the defendant “was not threatened, coerced, or tricked when he chose to let the officers into his room”
- finding consent “considering th[e] testimo *977 ny and all [of] the circumstances” where an ordinary citizen would have recognized that assent had been given
- concluding, after consulting several dictionary definitions, that the district court “explicitly used ‘acquiescence’ to mean ‘permission’—that is, consent”
Written by the judges who cited it.
The opinion
GILMAN, Circuit Judge,
dissenting.
Although I agree with the conclusion of the majority regarding Carter’s implied consent to the entry by the police officers, I share Judge Martin’s view that the seizure of the blunt in Carter’s hotel room cannot be justified under the “plain view” exception to the prohibition against a war-rantless search. The very fact that the majority opinion of Chief Judge Boggs and the dissenting opinions of Judges Martin and Moore can persuasively reach opposite conclusions about whether Carter gave implied consent to the officers’ entry demonstrates to me that the district court’s finding of consent was not “clearly erroneous.” As the majority points out, it is well-settled that “[wjhere there are two permissible views of the evidence, the district court’s conclusions cannot be clearly erroneous.” United States v. Worley, 193 F.3d 380, 384 (6th Cir.1999) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573 , 105 S.Ct. 1504 , 84 L.Ed.2d 518 (1985)). Because “[i]t is not enough that this Court might give the facts another construction [or] resolve the ambiguities differently ...West v. Fred Wright Constr. Co., 756 F.2d 31 , 34 (6th Cir.1985), I believe that we should give deference to the conclusion of the district court regarding Carter’s consent to entry by the police.
I also agree with the majority that the holding in Bumper v. North Carolina, 391 U.S. 543 , 88 S.Ct. 1788 , 20 L.Ed.2d 797 (1968), is not applicable to the case before us. Judge Moore’s dissent emphasizes that, in light of Bumper , the government’s burden to show that consent was freely and voluntarily given “cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” Id. at 548-49 , 88 S.Ct. 1788 . But Bumper dealt with the defendant’s grandmother who, informed by police officers that they possessed a valid search warrant for her home, allowed them to come in. The critical point to take from Bumper is that “[w]hen a law enforcement offic'er claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion.... Where there is coercion there cannot be consent.” Id. at 548 , 88 S.Ct. 1788 . In the present case, as the majority correctly observes, the police officers “made no such overpowering claim of authority.” I am therefore of the opinion that Judge Moore’s reliance on Bumper’s language, completely divorced from its factual context, is misplaced as applied to the facts before us.
Despite my agreement with the above portions of the majority opinion, I am persuaded that the seizure of the blunt from Carter’s hotel room cannot be justified under the “plain view” exception for all of the reasons set forth in Judge Martin’s dissent. The majority, in reaching the opposite conclusion, relies on United States v. Calloway, 116 F.3d 1129, 1133 (6th Cir.1997), to support its argument that the plain view exception applies because “the blunt was in plain view; there was probable cause to consider it incrimi *596 nating on its face; Hart was lawfully in position to see it; and Hart had a lawful right of access to the item.” I respectfully disagree that the facts of this case satisfy the Calloway factors. In particular, I do not believe that there was probable cause to consider the blunt “incriminating on its face” or that Hart had a “lawful right of access to the item.”
The most relevant case on point, in fact, is not Calloway , but United States v. McLevain, 310 F.3d 434 (6th Cir.2002). McLevain is mistakenly relied on by the majority for the proposition that the blunt in question was immediately incriminating. But the actual facts in McLevain involved a narcotics detective who seized certain items — a cut cigarette filter, a prescription bottle with fluid, a spoon, and a twist tie— that were, in his experience, commonly associated with the use of methamphetamine. Yet this court held that “[t]he connection between these items and illegal activities ... is not enough to render these items intrinsically incriminating.” Id. at 442 (emphasis added).
In view of the ruling that the McLevain facts were insufficient to satisfy the “plain view” exception to the prohibition against a warrantless search, how can the object that Hart conceded looked like a regular cigar from where he initially stood be considered “incriminating on its face”? There is no way. I would therefore suppress the seizure of the blunt and thus REVERSE the judgment of the district court.