CA6: Stopping conversation with officer and walking into house is not consent to be followed in

Disengaging from a conversation with an officer and walking in one’s house is not an invitation to the officer to enter. United States v. Little, 431 Fed. Appx. 417 (6th Cir. 2011):

Admittedly, we have found valid consent can occur not just by words but by gesture or conduct as well. United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc). In Carter, officers had suspicion that defendant, who was staying in a Red Roof Inn, was engaged in drug trafficking. They knocked on his door and asked if they could enter. In response, “Carter stepped back and cleared a path for the officers to enter.” Id. at 587. We reasoned as follows when concluding that the totality of the circumstances supported the district court’s conclusion that defendant gave his consent for the officers to enter:

The investigating officers were instantly recognizable as policemen when Carter opened the door. They properly asked permission to enter, and Carter stepped back, letting them in. Any ordinary caller, under like circumstances, would understand assent to have been given, and the police are not held to a higher standard in this regard than an ordinary person.

Id. at 588 (citation omitted) (emphasis added). By contrast, in this case Harper neglected to ask for permission to enter and instead, as the district court found, “merely followed Defendant into the house when Defendant went in to get additional clothing.” Moreover, he conceded at the suppression hearing that his objection was to secure the cell phone. While this circuit has not considered whether the totality of the circumstances can ever support a finding of implied consent in the absence of an explicit request for permission, the Eleventh Circuit has held that consent cannot be inferred by the simple act of disengaging from conversation with an officer and walking into the house. Bashir v. Rockdale Cnty., Ga., 445 F.3d 1323, 1329 (11th Cir. 2006). As explained earlier, we agree with this approach. Officer Harper had two alternative ways that he could enter the residence in compliance with the Fourth Amendment: obtain a search warrant or request and obtain consent from defendant. He did neither and therefore his entry violated the Fourth Amendment and the evidence acquired as a result of that unlawful entry – defendant’s cell phone and his subsequent written statements based upon possession of the cell phone – must be suppressed.