# United Stat es Court of Appeals For the First C ircuit

No. 02-2135 UNITED STATES, Appellant,

v. ERNEST B. WEIDUL, Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge ] [Hon. David M. Cohen, U.S. Magistrate Judge ]

Before Lynch, Circuit Judge , Bownes, Senior Circuit Judge , and Howard, Circuit Judge .

F. Mark Terison , Senior Litigation Counsel, with whom Paula D. Silsby , United States Attorney, were on brief for appellant. David R. Beneman with whom Levenson, Vickerson & Beneman was on brief for appellee.

March 31, 2003-2-

Bownes, Senior Circuit Judge . The defendant-appellee, Ernest Weidul ("Weidul"), was charged with being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g). The police found the firearmafter conducting a warrantless search of the home of Trisha Malloch ("Malloch"), Weidul's fiancee. We idul moved to suppress the firearm. A Magistrate Judge found that Malloch did not voluntarilyconsent to the search of her home and recommended that Weidul's motion be granted. The district court adopted the M agistrate Judge's recommendation and granted the motion t o suppress. The government appealed. We affirm. I. BACKGROUND We take the fa cts f rom the Magistrate-Judge's recommended decision, which the district court adopted. See United States v. Weidul , 227 F. Supp.2d 161, 162-65 (D. Me. 2002). When motions to suppress are at issue, we review a district court's factual findings for clear error. See United State s v. Palmer , 203 F.3d 55, 60 (1st Cir. 200 0). The ultimate conclusion as to whether there is a Fourth Amendment viol ation is r eviewed de novo . See Ornelas v. United States , 517 U.S. 690, 691 (1996). On the evening of Jan uary 1 1, 2001, Weidul called the emergencydepartment of Southern Maine Medical Center ("SMMC") and threatenedto "blow his head off" with a l oaded.22 caliber gun. Th e crisis-response worker who answered Weidul's phone ca l l overheard a female voice in the background screaming, "Oh my God,1 It can be i nferred from the record that Weidul was staying

or living with Malloch. Therefore, he had an expectation of privac y in h er home and standing to challenge the warrantless search. See Minnesota v. Olson , 495 U.S. 91, 99-100 (1990) (overnight guests have a legitimate expectation of privacyin their host's home). -3- don't do it, don't do it." The crisis-response worker asked Weidul to identify the person yelling and he r eplied that it was his fiancee, Malloch. Weidul refused to let the crisis-response worker speak with Malloch. The worker also observed that Weidul was slurring his words and seemed to be intoxicated. Following protocol, the crisis-response worker signaled for her colleague to phone the police. The colleague ascertained that the call was coming from a residence in Ken nebu nk, Maine, and phoned the Kennebunk Police Department. She told the police dispatcher that Weidul was suicidal, had a loaded gun in his hand "two inches from his mouth," hadbeen drinking, had two boxes of ammunition, and was threatening to sh oot police officers. She also reported that Weidul was at Malloch's home and that Weidul refused to let Malloch speak with the crisis-response workers. 1 After five minutes, Weidul repeated that there was nothing that could stop him from killing himself and hung up the phone. While officers were en route to Malloch's residence, the Kennebunk police dispatcher received a phone call from Malloch. Malloch reported that Weidul had passed out and was asleep, that-4-

there was no gun involved, that Weidul was just a little depressed, and there was nothing more to the situation. The dispatcher, who

was in simultaneous communication with the officers en route, asked Malloch to meet the officers outside her home and she obliged. One of the officers, Keith Mills ("Mills"), knew Weidul from two previous domestic violence incidents in which he had threatened to s hoot his mother and sister, and had assaulted his father and

s ister. Mills considered Weidul to have a "propensi ty fo r violence" and knew that he had a history of mental instability. Another officer, Zachary Brooks Harmon ("Har mon") , recalled an incident in July, 2000, when Weidul pointed a gun at Malloch. Both officers considered Weidul to be very dangerous. Mills also knew Mallo ch fro m her work in Kennebunkport and from minor traffic stops. Harmon knew Malloch from her previous traffic infractions andchance encounters. He characterized her as a "cop nut" who was fascinated by the police. When the officers arrived at the scene, they met Malloch who

was outside her house. They spoke to Malloch as they went into the house and asked her where bot h Weidul a nd the gun were located. Malloch cooperated with police by telling them that Weidul was upstairs sleeping in the bedroom; she did not protest them entering her home. She did, however, deny that t here w as a gun in the house. The officers found Weidul upstairs, but found no weapon. They-5-

did, however, observe a gun cleaning kit on the right side of the bed, along with a small, uncovered plastic box containing medication bottles and .22 caliber ammunition. Weidul was lying on th e b ed, apparently asleep. The police officers put plastic "flexcuffs" on Weidul and placed him in a waiting patrol car, which immediately departed from the Malloch residence to SMMC. Harmon, Mills, andanother officer re-entered Malloch's home. Malloch was in her downstairs' living room, sitting in an armchair speaking to Kennebunk police ca p tain, Mike LeBlanc ("LeBlanc"). The su bstanc e of the conversation between Malloch and LeBlanc is not in the record. LeBlanc had arrived on the scene at some time subsequent to the other officers. A fifth officer was also present. In Malloch's presence, LeBlanc instructed the officers to make sure, for safety reasons, that there were no weapons in the house. Malloch, still sitting in her armchair, did not protest. To Harmon, she appeared "blase" and unconcerned that a search was transpiring. Mills bega n l ooking around the living room and noticedammunition rounds in plain view on shelves and on the floor next to the chair where Malloch was sitting. He found no weapons in the living room. Harmon proceeded from the livin g ro om toward the kitchen, saying to Malloch, "I'm going to look in here, okay?" Malloch gave

no response. Harmon nonetheless entered the kitchen. After a few moments in the kitchen, Harm on moved o n to a small laundry room-6-

adjacent to the kitchen, telling Malloch, whom he could still see, "I'mgoing to look in here. " Malloch responded, "Okay." Harmon enteredthe laundry room. The floor was littered with dirty clothes. Harmon kicked aside some of the clothes and discovered a loaded .22 caliber handgun, the object of the motion to suppress. The officers continued to search the house for an hour after Harmon found the gun. II. DISCUSSION The primary issue in this case is whether Malloch voluntarily gave consent for the police to conduct a warrantless search of her home. No claim is made that this search is warranted by exigent circ umstances. The government initially raises a question about the proper standard of appellate review. It argues that whether Malloch voluntarily gave consent to the sear ch of her home is a question of law that we should review de novo . Our rule has been that voluntariness of consent is a factual matter that is subjected to the clear error standard of review, and we adhere to that rule. See United States v. Laine , 270 F.3d 71, 74 (1st Cir. 2001); United States v. Chhien , 266 F.3d 1, 5 (1st Cir. 2001); United States v. Barnett , 989 F.2d 546, 554 (1st Cir. 1993). Under this standard,

a district court's choice between two plausib le c ompeting interpretations of the facts cannot be clearly erroneous. See Palmer , 203 F.3d at 60. Instead, "the only real question for appellate review is whether the evidence presented at the-7-

suppression hearing fairly supports [the district court's] finding." Laine , 270 F.3d at 75. Turning to the merits, "warrantless search and seizures in the ho me v iolate the Fourth Amendment, absent consent or exigent circumstances." Griffin v. Wisconsin , 483 U.S. 868, 883 (19 87) (Blackmun, J., dissenting). Consent must be voluntary to be valid. See United States v. Perez-Montanez , 202 F.3d 434, 438 (1st Cir. 2000). Whether consent is voluntary is to be determined by examining the totality of the circumstances, including the interaction between the police and the person alleged to have given consent. See Unit ed States v. Esquilin , 208 F.3d 315, 318 (1st Cir. 2000); Perez-Montanez , 202 F.3d at 438. The heart of the government's argument is that Malloch voluntarilyconsented to the s earch when she responded "Okay" to Officer Harmon's statement, "I'm going to look in here." The government argues that the totality of the circumstances demonstrate Malloch's "Okay" was voluntary consent. These circumstances include the fact that Malloch was sitting in a chair in her living room; that Malloch was a "cop nut" and was fascinated bythe police; the fact that Malloch had met Officer Harmon on a prior occasion; the fact that Malloch's demeanor was low-key; and the fact that Malloch did not protest when Captain LeBlanc toldthe other officers to search the house for weapons. The Magistrate Judge examine d the totality of the-8-

circumstances and foundthat Malloch didnot voluntarily consent to the search of her home. The Magistrate Judge held: Under all of these circumstances, Malloch's uttering of the word "okay" as Harmon stated that he was about to search the laundry room (meanwhile walking purposefully in that direction) was not a consent to search--it was a simple acquiescence to what any reasonable person would have perceived, under the circumstances, as police con duct tantamount to a claim of lawful authority t o search for weapons. Weidul , 227 F. Supp.2d at 167-68. We rule that the evidence fairly supports the Magistrate Judge's finding. The critical facts are as follows. After Weidul was removed from the house, Officer Harmon and two other officers re-ente red Malloch's home without permission. Once inside, they foundMalloch talking with Captain Leblanc. A fifth officer was also present. In Malloch's presence, Leblanc told the oth er officers that they ha d to s earch Malloch's house for weapons. Malloch sat in a chair as the officers disp erse d to search her house. Officer Harmon asked Malloch if he could look in the kitchen, but she did not respond. Harmon nevertheless entered the kitchen. Harmon then told Malloch that he was going to look in the laundry room. Malloch responded "Okay." III. CONCLUSION The Magistrate Judge's factual findings on the voluntariness of Malloch's consent are fairly supported by the record. The government merely offers evidenc e f rom which an alternative

con clusion can be drawn. This is not enough under the clearl y-9-

erroneous standard of review. See United States v. Coraine , 198 F.3d306, 310 (1st Cir. 1999). Absent voluntary consent, this search violated the Fourth Amendment. Affirmed.