The officer’s subjective belief in implied consent was unreasonable. There was no implied consent, and the motion to suppress is granted, despite the R&R. “Here, it is undisputed that neither Officer Tackett nor Officer Stevens asked for permission to enter the Defendants’ home. … Rather, in response to and in compliance with the officers’ demand for the Defendants’ identification and the social workers’ request for a ‘pill count,’ Defendants walked into their home to retrieve the requested items. … The officers simply followed behind them.” United States v. Blackaby, 2018 U.S. Dist. LEXIS 22204 (E.D. Ky. Feb. 12, 2018):
The Defendants’ objections to the R&R’s finding of implied consent are well taken. First, a “determination of consent to enter must be “judged against an objective standard.” Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990). The proper inquiry, therefore, is: “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991). The question is not whether the officers believed they had consent to enter, and the officers’ subjective beliefs about their permission to enter the Defendants’ home are irrelevant. Thus, in this respect, the R&R, which appears to apply a subjective, rather than an objective, standard, is unsound.
Second, “[w]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntary given” and “[t]his burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” Bumper, 391 U.S. at 548-49. Because the Government bears the burden of proof, the R&R’s repeated mentions of the Defendants’ failure to produce evidence—regarding their failure to object to the officers’ entry, their lack of knowledge of their ability to refuse consent, or any coercion or duress—indicate an improper focus. It is not the Defendants’ burden to establish that they did not provide consent; it is the Government’s burden to prove that they did.
Third, and most importantly, the R&R’s reliance on Carter is misplaced. In Carter, officers knocked on the door of the defendant’s hotel room. After the defendant opened the door, “the officers asked Carter if they could enter the hotel room and speak to him.” Carter, 378 F.3d at 587. “In response, Carter stepped back and cleared a path for the officers to enter.” Id. On these facts, the Sixth Circuit found that the defendant had impliedly consented to the officers’ entry into his hotel room. Id. at 588.