In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-3613

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRISTOPHER DARON HICKS,

Defendant-Appellant.

____________

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 07 CR 56—J. P. Stadtmueller, Judge.

____________

ARGUED APRIL 8, 2008—DECIDED AUGUST 20, 2008

____________

Before KANNE, WILLIAMS, and TINDER, Circuit Judges.

TINDER, Circuit Judge. On March 6, 2007, a grand jury

in the Eastern District of Wisconsin returned a two-count

indictment against the defendant, Christopher Hicks,

alleging (1) possession of a firearm by a felon, violating

18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (2) possession of

a firearm not registered to him in the National Firearms

Registration and Transfer Record, violating 26 U.S.C.

§§ 5861(d) and 5871. The firearms had been seized in a
2 No. 07-3613

search conducted by Milwaukee police officers. On March

27, 2007, Hicks filed a motion to suppress physical evidence. The magistrate conducted an evidentiary hearing

on April 12, 2007, and recommended on May 1, 2007, that

the motion be denied. Hicks filed his objections to the

recommendation on May 11. The district court adopted

the magistrate’s recommendation and denied the motion

to suppress in an order issued June 1, 2007. Hicks filed a

motion for reconsideration on June 15, 2007. Also on

June 15, the parties filed a plea agreement. On June 18, the

judge denied the motion to reconsider and accepted

Hicks’s guilty plea. The plea reserved the right to appeal

the denial of the motion to suppress. The sentencing

hearing was held on October 18, 2007, where the court

sentenced Hicks to 37 months’ imprisonment to be followed by three years’ supervised release and a $100

special assessment. Hicks is now appealing the denial of

his suppression motion.

I. Factual Background

We outline the basic facts here and delve into the specifics below, as necessary, in our analysis. Detective Wayne

Armon of the Milwaukee Police Department was conducting an investigation of a shooting that occurred on

October 11, 2006. On December 24, 2006, Armon asked

Detective Donald Brown to go to Hicks’s flat at 944B North

37th Street, Milwaukee, Wisconsin and instructed Brown

to get consent to search. According to Brown, Armon told

him there was enough to get a warrant, but Brown himself did not have knowledge of any facts that would
No. 07-3613 3

establish probable cause. In addition to a suspected

connection to the October 11 incident, there were two

municipal warrants for Hicks’s arrest. After establishing

that Hicks’s residence was the upper rear flat of the

duplex, Brown and other officers went up and knocked.

Hicks answered and was immediately handcuffed and

placed under arrest. The officers conducted a protective

sweep and discovered Hicks’s girlfriend, Samella Smith,

and four children, all of whom had been asleep. Smith,

upon request, got clothes for Hicks who was in the

kitchen, and then Smith and the children were told to

wait in the living/dining area. During all of this, Hicks

was upset and vocal, asking why the police were there

and so on. After getting dressed, Hicks was removed

from the residence and taken out to the squad car. At

some point relatively soon thereafter, he was taken downtown to the police station.

After Hicks’s removal, Detective Brown sought consent

to search from Smith. Smith resisted, telling Brown that

the police should get a warrant. Brown continued talking

with her and at some point in the conversation, Brown

told her that he could obtain a search warrant, but that

it could take some time. He told her it was Christmas Eve

and that with her cooperation he would not destroy her

house in the search. He also told her he believed there

were guns in the residence with children in the home.

Smith told Brown to “go ahead.” Nevertheless, she refused

to sign a consent statement in his memo book. In the

search, officers found, in Smith and Hicks’s bedroom, a

loaded Smith and Wesson, .40 caliber, semi-automatic

handgun, additional ammunition, and a loaded sawed-off

Mossberg .12 gauge shotgun, with a pistol grip.
4 No. 07-3613

II. Analysis & Discussion

Hicks is presently appealing the denial of his motion to

suppress because he believes that the warrantless search

was unlawful. He raises three particular issues: (1) whether

the district court erred in finding that Hicks did not

object to the search and that the removal of Hicks to the

squad car was not intended to prevent him from objecting to the search; (2) whether the district court erred in

concluding that Smith consented to the search; and (3)

whether the district court erred in determining that the

police had a genuine belief that a warrant could be obtained. We will address each in turn, although they do

overlap considerably. Our review of the legal questions

is de novo and the factual findings for clear error. United

States v. DiModica, 468 F.3d 495, 498 (7th Cir. 2006).

Hicks argues that his comments (along the lines of “What

are you doing here?”) made to the officers while they

were all in his flat prior to his removal constitute an

objection to the search. He explains that as an overnight

guest his right to object is clearly established, see Minnesota

v. Olson, 495 U.S. 91, 98 (1990), and that as a physically

present co-occupant his stated refusal to permit entry

renders the search invalid as to him, nullifying any consent from Smith, see Georgia v. Randolph, 547 U.S. 103, 109

(2006). In support, he focuses on the following testimony

from Detective Brown:

Q: He objected to your being present?

A: Probably did, yes, he did.

The district court, however, concluded otherwise, finding

that “there was no evidence that he objected to a search
No. 07-3613 5

taking place; to be sure, he objected to his arrest and

removal, but he did not specifically object to a search of

the premises.” Hicks disagrees, arguing that it’s more

likely his statements were directed to the police and their

protective sweep, which is a sort of search, and, regardless,

an objection to police presence should be equated to an

objection to a search. He cites a district court case, United

States v. Henderson, No. 04 CR 697, 2006 WL 3469538 (N.D.

Ill., Nov. 29, 2006), rev’d, United States v. Henderson, No. 07-

1014, 2008 WL 3009968 (7th Cir. Aug. 6, 2008), for support.

We do not agree with Hicks and find that the district

court did not clearly err. At the time of his protestations,

Hicks was being arrested—no officers had even mentioned a search to him, and he was not asked to give his

consent at any point. It is likely that many individuals

being arrested are going to object, and many of them

might even be vocal and upset about it. (Especially when

getting arrested in your home, immediately upon

waking, while scantily clad, in front of your girlfriend and

children, on Christmas Eve.) It was reasonable for the

district court to understand his remarks as responsive

to the police who were there arresting him. As a factual

finding, this is only subject to clear error review; it was

not clearly erroneous for the district court to find that

Hicks’s objections were only to his arrest and removal

rather than to the search.

In contrast, the district court in Henderson found that the

statement “Get the f*** out of my house” “included a

direction that they . . . refrain from searching the residence.” Henderson, 2006 WL 3469538, at *2; see also United
6 No. 07-3613

States v. Henderson, 2008 WL 3009968, at *2 (mentioning

that “the district court reasonably construed [the statement] as an objection to a search”). The district court in

the present case found differently than the court in

Henderson on the particular facts before it, and while it

would not have been precluded as a matter of law from

concluding otherwise, the district court did not clearly

err in finding as it did.

Alternatively, we also note that even if we had found as

Hicks requests—that his statements amounted to an

express objection to the search—he would still have to

overcome the requirement that one occupant objecting to

the search has to be “physically present” at the relevant

time in order to nullify the other co-occupant’s permission.

See Henderson, 2008 WL 3009968, at *4-9. See Randolph, 547

U.S. at 121-22, where the Court drew a “fine line; if a

potential defendant with self-interest in objecting is in

fact at the door and objects, the co-tenant’s permission

does not suffice for a reasonable search, whereas the

potential objector, nearby but not invited to take part in

threshold colloquy, loses out.” Since Hicks’s alleged

objection took place well before Smith, or anyone, was

approached about consenting to a search, he would not

prevail as he was not “physically present” for the relevant

colloquy. Henderson, 2008 WL 3009968, at *7 (“[W]e see

the contemporaneous presence of the objecting and

consenting cotenants as indispensable to the decision in

Randolph.”); see also Randolph, 547 U.S. at 121-23; DiModica,

468 F.3d at 500; United States v. Hudspeth, 518 F.3d 954, 960-

61 (8th Cir. 2008) (en banc). But see United States v. Murphy,

516 F.3d 1117, 1124 (9th Cir. 2008) (“We hold that when a
No. 07-3613 7

co-tenant objects to a search and another party with

common authority subsequently gives consent to that

search in the absence of the first co-tenant the search is

invalid as to the objecting co-tenant.”).

Intimately related, and crucial to understanding our

conclusions just discussed, is the question of whether

Hicks was removed from the scene in order to prevent him

from objecting. The Court in Randolph elaborated on the

point quoted supra with the following: “So long as there

is no evidence that the police have removed the

potentially objecting tenant from the entrance for the

sake of avoiding a possible objection, there is practical

value in the simple clarity” of the rule. Randolph, 547 U.S.

at 120; see also United States v. Wilburn, 473 F.3d 742, 745

(7th Cir. 2007). Therefore, if officers remove a potential

objector simply in order to avoid his objection, the

Court suggests that the consent obtained as a result is

invalid. In this case, the district court was correct in

determining that Hicks was not removed “for the sake of

avoiding a possible objection.” The officers removed Hicks

in order to execute an arrest. See Henderson, 2008 WL

3009968, at *8 (“Once he was validly arrested . . . and taken

to jail, however, his objection lost its force, and [his wife]

was free to authorize a search of the home.”); DiModica, 468

F.3d at 500 (“The officers did not remove DiModica to

avoid his objection; they legally arrested DiModica based

on probable cause that he had committed domestic

abuse.”); cf. Wilburn, 473 F.3d at 745 (“Wilburn was validly

arrested . . . and he was lawfully kept in place—the back

seat of a squad car—where people under arrest are

usually held.”). Hicks was not removed so that he would
8 No. 07-3613

not object; he was removed because he was being arrested. The district court’s fact finding on this point is not

erroneous, and its legal conclusions are correct.

The Court in Randolph expressed a preference for clear

lines and a distaste for any unnecessary gray area, thus

we take care to read the law closely and consider the

practical consequences for police. See Randolph, 547 U.S. at

121-23; see also, Wilburn, 473 F.3d at 745. It is most reasonable to view this scenario as one in which the officers

simply put Hicks into the car and took him away in

order to execute an arrest—that process is simply what

happens when someone gets arrested. If we found otherwise on these facts, then police might feel they have to

start asking arrestees to clarify whether they object to a

search every single time the police escort an arrestee out to

the car, or every angry arrestee’s ranting words would

necessarily be construed as an objection to a search. Such

an outcome from these facts would be unwise, impracticable, and contrary to established law. Cf. Randolph, 547

U.S. 121-23 (“[W]e think it would needlessly limit the

capacity of the police to respond to ostensibly legitimate

opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to

find a potentially objecting co-tenant before acting on the

permission they had already received.”). The rule in

Randolph is clear, and it simply provides Hicks no relief

in these circumstances.

To address the second issue Hicks presents for our

review, we narrow in on Samella Smith’s consent. You’ll

recall that following some initial resistance, after several
No. 07-3613 9

minutes talking with Detective Brown, an upset Smith

gave an oral “go ahead” for the search. The government

bears the burden of proving that any consent was freely

and voluntarily given. United States v. Johnson, 495 F.3d 536,

541 (7th Cir. 2007). This is based on the totality of the

circumstances, with established relevant factors including the age, education, and intelligence of the consenting individual; whether the person was advised of

her constitutional rights; how long the person was detained before giving consent; whether consent was immediate or prompted by repeated requests; whether there

was any physical coercion; and whether the person giving

consent was in custody at the time. Id. at 542.

Hicks focuses on whether the consent was immediate

or prompted by repeated requests. He argues that as

soon as Smith told the officers to get a warrant, the police

should have left and asks us to infer that the police were

“intent” on “overriding” her refusals. We simply do not

find his arguments on this point convincing. The testimony is that Brown continued talking with Smith somewhere between five and twenty minutes after her initial

refusal. Smith was upset at the time, and some portion of

the conversation was spent discussing Hicks. We find no

error in the district court’s determination that talking to

Brown “was not so lengthy as to nullify her consent, nor

does her initial refusal to consent render the search invalid.” This is not a case of the police coercing Smith or

too aggressively seeking her consent.

Hicks’s argument makes too little of the nature of the

analysis—a consideration of the “totality of the circum-
10 No. 07-3613

stances.” His arguments focus on a single factor. Yet Smith

was not detained or under arrest; there was never any

physical coercion. She is a 22-year-old adult, with four

children, who is employed as an officer manager. Her

words to “go ahead” were sufficient to indicate her consent. Therefore, aside from the legal issue we take up

next, we do not find error with the district court’s determination that Smith’s consent was freely given.

This leads us to Hicks’s final argument: that because

the government did not show that the police threat to

obtain a warrant was based in fact, the district court

clearly erred when it found, without inquiry, that the

police “had a legitimate belief” that they could obtain a

search warrant. We have held that “[b]aseless threats to

obtain a search warrant may render consent to search

involuntary” and “[w]hen the expressed intention to

obtain a warrant is genuine, . . . and not merely a pretext

to induce submission, it does not vitiate consent to search.”

United States v. White, 979 F.2d 539, 542 (7th Cir. 1992); see

also United States v. Duran, 957 F.2d 499, 502 (7th Cir. 1992).

The district court explained in this case that “the court

does not conclude that there actually was probable cause

to obtain a warrant; the court only determines that Brown

appeared to be acting upon a legitimate belief that a

search warrant could be obtained.” The court found

Brown’s expressed intention to get a warrant genuine

and not a pretext to induce submission, and Smith’s

consent, accordingly, not vitiated.

We disagree. The district court did not err in its fact

finding per se, but rather took an incorrect view of the

law. The district court interpreted our case law to mean
No. 07-3613 11

that if Brown’s statement reflected a legitimate belief, then

the stated intention to get a warrant did not create a

problem with the consent. We do not question the district court’s determination that Brown personally believed

what he said. But we find that it was error to evaluate

whether the stated intention to get a warrant was

genuine or pretextual without considering whether the

police actually had the underlying probable cause for the

search.

Consider: If the police did not have a reasonable basis to

believe there was probable cause then it follows that any

statement, or “threat,” that a search warrant could be

obtained would necessarily be “baseless” and could only

be “merely a pretext to induce submission.” In that case,

the consent may be involuntary. See White, 979 F.2d at

542. Without determining whether there was probable

cause (or a reasonable factual basis to believe there was

probable cause), the court cannot know whether the

statement was baseless or not. For instance, if instead of

sending Detective Brown, Detective Armon himself had

gone to the flat and made the same remark, whether or

not his statement that he could get a warrant was “genuine” would have to turn on whether he had a reasonable

basis for believing there was probable cause. He could not

just refer to some other officer’s representations to him to

establish “genuineness.”

In this case, the testimony established that Armon

specifically instructed Brown to go to the 944B flat and get

consent to search. Brown also said that Armon told him

there was enough to get a warrant, but Brown admitted

he had no knowledge of any of the facts that would
12 No. 07-3613

establish probable cause. If Brown’s mere “belief” in this

case were enough to establish a genuine statement of

intent to obtain a warrant (a “nonbaseless” threat, if you

will), there is nothing to stop one officer from telling

another officer that there is enough to get a warrant

when there really isn’t, just to get consent. In other

words, since an officer on the scene cannot lie to the

occupant that he’s going to go get a warrant when he

knows there isn’t probable cause, then that same lie

cannot be permitted simply because the police compartmentalize who knows what. The way to thwart this

potential cat’s-paw-like circumvention of the rule is to

determine whether there was a reasonable factual basis

on which to conclude there was probable cause. This is

consistent with our previous case law. See White, 979

F.2d at 542 & n.1 (finding no evidence that police intended to coerce with an empty threat and noting that

the police obtained a search warrant for another search

of the residence the following day); Duran, 957 F.2d at 502

(finding the threat to obtain a warrant did not vitiate

consent because it was “firmly grounded” and the police

had probable cause); United States v. Talkington, 843 F.2d

1041, 1049 (7th Cir. 1988) (finding consent invalid where

police lied in claiming that they were in the process of

applying for a search warrant).

We are not suggesting one way or the other as to

what the officers were truly doing in this case; we are just

saying it was error for the district court not to examine

whether there was a factual basis for the police to believe

they had probable cause to get the search warrant. If there

was, then there was a genuine intention to get a warrant

and the statement did not vitiate consent. On the other
No. 07-3613 13

Let us be clear that our instant decision is not a final determi- 1

nation on the merits of the district court’s denial of Hicks’s

motion to suppress. We anticipate that on remand the government may seek the opportunity to supplement the suppression hearing testimony to address the probable cause

concern we discussed supra. Regardless of whether the hearing

is reopened for this purpose, we expect that the district court

will consider anew whether the expressed intention to obtain a

warrant was genuine or pretextual in light of this opinion, and

then, accounting for its determination on that question, reassess,

under the totality of the circumstances, whether Smith’s consent

was voluntary. If there is a subsequent appeal, it should be

returned to this panel as a successive appeal under Operating

Procedure 6(b).

8-20-08

hand, if, on remand, the district court determines the

police had no reasonable factual basis to believe they had

probable cause then there was necessarily a baseless/pretextual threat that may render Smith’s consent

involuntary. As it stands, the district court failed to

make a determination (and the prosecution did not

present the relevant evidence) on this issue, thus we

must remand.

III. Conclusion

We VACATE the order denying the defendant’s motion

to suppress and REMAND to the district court for treatment consistent with this opinion.1