CA8: Implied consent given when arrested defendant asked to go in and change clothes

Defendant was arrested in pajamas outside her house. She asked to be able to change into other clothes before leaving, and the officers agreed. It was understood, without asking, that they would have to accompany her to the bedroom while she changed. The SKS rifle in the corner was thus in plain view. United States v. Reid, 2014 U.S. App. LEXIS 20135 (8th Cir. October 20, 2014):

The officers did not have a search warrant for the house, so the question is whether they had a basis to enter without a warrant. The arrest of a person outside a home does not by itself justify a warrantless search of the residence. United States v. DeBuse, 289 F.3d 1072, 1074 (8th Cir. 2002). Here, however, Graham was clad only in pajamas, and the district court found that “the deputies allowed Graham to reenter 712 Thrush to change her clothes.” When an arrestee chooses to reenter her home for her own convenience, it is reasonable for officers to accompany her and to monitor her movements. Illinois v. McArthur, 531 U.S. 326, 335 (2001); Washington v. Chrisman, 455 U.S. 1, 6-7 (1982); DeBuse, 289 F.3d at 1074-75. Officers permissibly accompanied Graham to her bedroom where she changed from pajamas into clothes, and a deputy observed the assault rifle in plain view in the bedroom. The seizure of the firearm was thus permissible under the Fourth Amendment.

Reid argues that accompaniment of Graham did not justify the warrantless entry because Graham did not request to reenter her home. It is true that there is no testimony directly quoting Graham as making such a request. But the district court found that the deputies “allowed” Graham to reenter, and this finding is best understood in ordinary usage as a grant of permission. A grant of permission implies a request. The district court likely would have used different language if the court had found that the officers ordered Graham back into the house.

The record supports the inference that Graham wanted to get dressed and that the officers permitted her to reenter the home for that purpose. The lead deputy marshal testified that after arresting Graham, he was going “to allow her to get clothes,” and that she was “allowed” to go into her bedroom and change clothes. He explained that this was one of the “courtesies” that he extended to Graham. Hr’g Tr. 7-8, 19. We therefore conclude that our decision in DeBuse is controlling and deem it unnecessary to explore when police may bring an arrestee into a home to change clothes or to dress without a request by the arrestee. Cf. United States v. Gwinn, 219 F.3d 326, 333 (4th Cir. 2000); United States v. Butler, 980 F.2d 619, 621 (10th Cir. 1992); United States v. Di Stefano, 555 F.2d 1094, 1101 (2d Cir. 1977).