CA4: Request to remove a man with a gun implicitly consents to search for the gun after he’s found without it

The police were called over a domestic dispute where a woman complained that defendant threatened her with a gun. Defendant was handcuffed and removed from the basement. The gun wasn’t found, and the officer returned to the basement to look for it. He searched and didn’t find it, and reported back to the other officer. He went back to the basement, and he noticed that a ceiling tile was ajar. He looked up there and found a gun. The woman’s consent to go look for him implicitly included looking for the gun, too, and her suppression hearing testimony to the contrary was rejected. United States v. Toyer, 414 Fed. Appx. 584 (4th Cir. 2011) (unpublished):

We found, in Hylton, implicit consent to search the apartment in which the defendant and his girlfriend lived based on the circumstances and the girlfriend’s words. 349 F.3d at 786. This court found that the girlfriend gave the police consent to search the apartment to enable her to return to the apartment safely, and that the officers reasonably inferred that she authorized them to retrieve the gun that had put her at risk. Id. We were also persuaded by the fact that the girlfriend had advised the officers of the specific circumstances inside the apartment, concluding that “when a tenant calls police for assistance … expressing fear about the presence of a gun, and describing precisely where the gun is located, it can be inferred that she is authorizing the police to enter the apartment and retrieve the gun.” Id. at 786-87.

The situation here — one of a domestic dispute involving threats of violence with a gun — is similar to the situation in Hylton, and even if Ballard and Elliot did not give express consent to search the house for weapons, the officers reasonably inferred that such implicit consent had been given. The government’s burden is heavier where consent is not explicit, since consent is not lightly to be inferred. Neely, 564 F.3d at 350 (citing United States v. Impink, 728 F.2d 1228, 1232 (9th Cir. 1984)). But the government meets the burden in this case. In their testimony, both officers stated that Ballard and Elliot seemed concerned and scared that Toyer had threatened Elliot with a gun, and told the officers that Toyer was in the basement of the house with the weapon. Additionally, Elliot told Officer Adams that the gun was on a shelf, but then later told another officer that the gun may have been in the drop ceiling. Though she did not explicitly state “I consent for you to search the basement area for the gun,” it is reasonable to believe that a rational officer would find her statements about the whereabouts of the gun to be consent to search for the gun. Furthermore, it is reasonable for the officers responding to the frantic 911 call to believe that both Ballard and Elliot were giving consent for the officers to enter the house, search for Toyer and his weapon, and diffuse the potentially dangerous situation.