United States Court of Appeals

For the First Circuit

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
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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

firearm after conducting a warrantless search of the home of Trisha

Malloch ("Malloch"), Weidul's fiancee. Weidul moved to suppress

the firearm. A Magistrate Judge found that Malloch did not

voluntarily consent to the search of her home and recommended that

Weidul's motion be granted. The district court adopted the

Magistrate Judge's recommendation and granted the motion to

suppress. The government appealed. We affirm.

I. BACKGROUND

We take the facts from 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 States v. Palmer, 203 F.3d

55, 60 (1st Cir. 2000). The ultimate conclusion as to whether

there is a Fourth Amendment violation is reviewed de novo. See

Ornelas v. United States, 517 U.S. 690, 691 (1996).

On the evening of January 11, 2001, Weidul called the

emergency department of Southern Maine Medical Center ("SMMC") and

threatened to "blow his head off" with a loaded .22 caliber gun.

The crisis-response worker who answered Weidul's phone call

overheard a female voice in the background screaming, "Oh my God,
1 It can be inferred from the record that Weidul was staying

or living with Malloch. Therefore, he had an expectation of

privacy in her 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 privacy in their

host's home).

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don't do it, don't do it." The crisis-response worker asked Weidul

to identify the person yelling and he replied 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 Kennebunk, 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,"

had been drinking, had two boxes of ammunition, and was threatening

to shoot 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
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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 shoot his mother and sister, and had assaulted his father and

sister. Mills considered Weidul to have a "propensity for

violence" and knew that he had a history of mental instability.

Another officer, Zachary Brooks Harmon ("Harmon"), recalled an

incident in July, 2000, when Weidul pointed a gun at Malloch. Both

officers considered Weidul to be very dangerous. Mills also knew

Malloch from her work in Kennebunkport and from minor traffic

stops. Harmon knew Malloch from her previous traffic infractions

and chance 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 both Weidul and 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 there was a gun in the

house.

The officers found Weidul upstairs, but found no weapon. They
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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

the bed, 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, and another officer re-entered Malloch's home.

Malloch was in her downstairs' living room, sitting in an armchair

speaking to Kennebunk police captain, Mike LeBlanc ("LeBlanc").

The substance 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 began looking around the living room and

noticed ammunition 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 living room 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, Harmon moved on to a small laundry room
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adjacent to the kitchen, telling Malloch, whom he could still see,

"I'm going to look in here." Malloch responded, "Okay." Harmon

entered the 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

circumstances. The government initially raises a question about

the proper standard of appellate review. It argues that whether

Malloch voluntarily gave consent to the search 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 plausible competing

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
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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

home violate the Fourth Amendment, absent consent or exigent

circumstances." Griffin v. Wisconsin, 483 U.S. 868, 883 (1987)

(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 United 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

voluntarily consented to the search 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

by the 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 told the

other officers to search the house for weapons.

The Magistrate Judge examined the totality of the
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circumstances and found that Malloch did not 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

conduct tantamount to a claim of lawful authority to

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-entered Malloch's home without permission. Once inside, they

found Malloch talking with Captain Leblanc. A fifth officer was

also present. In Malloch's presence, Leblanc told the other

officers that they had to search Malloch's house for weapons.

Malloch sat in a chair as the officers dispersed 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 evidence from which an alternative

conclusion can be drawn. This is not enough under the clearly
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erroneous standard of review. See United States v. Coraine, 198

F.3d 306, 310 (1st Cir. 1999). Absent voluntary consent, this

search violated the Fourth Amendment. Affirmed.