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RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0152p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

DARRYL LEE, 

Defendant-Appellant. 

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No. 14-3929 

Appeal from the United States District Court 

for the Northern District of Ohio at Youngstown. 

No. 4:14-cr-00104—Sara E. Lioi, District Judge. 

Argued: June 10, 2015 

Decided and Filed: July 15, 2015 

Before: COLE, Chief Judge; GILMAN and KETHLEDGE, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Wendi L. Overmyer, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, 

Ohio, for Appellant. Carmen Evette Brown, UNITED STATES ATTORNEY’S OFFICE, 

Cleveland, Ohio, for Appellee. ON BRIEF: Wendi L. Overmyer, OFFICE OF THE FEDERAL 

PUBLIC DEFENDER, Akron, Ohio, Melissa M. Salinas, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Toledo, Ohio, for Appellant. Carmen Evette Brown, UNITED STATES 

ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. 

_________________ 

 

OPINION

_________________ 

RONALD LEE GILMAN, Circuit Judge. Darryl Lee was a parolee living in Ohio when 

his parole officer received a tip about “possible weapons going in and out of [Lee’s] apartment.” 

>
No. 14-3929 United States v. Lee Page 2 

The next day, officers searched the apartment without a warrant and discovered a firearm. Upon 

being charged with being a felon in possession of a firearm, Lee moved to suppress the evidence 

from the search. He argued that the search violated his Fourth Amendment rights because the 

officers did not have reasonable suspicion for the search and because he never consented to it. 

After the district court denied Lee’s motion, he entered a conditional guilty plea and was 

sentenced to 53 months of imprisonment. Lee now appeals the denial of his suppression motion. 

For the reasons set forth below, we AFFIRM the judgment of the district court. 

I. BACKGROUND

A. Factual background 

The facts of this case are basically undisputed. In April 2013, Lee was released from a 

Pennsylvania state correctional institution where he had been imprisoned for aggravated assault 

with a firearm specification and for a separate weapons offense. He was sent to a therapeutic 

facility for help reintegrating into society before being placed on parole in Pennsylvania in 

August of that same year. 

Lee’s parole supervision was transferred to Ohio in September 2013 so that he could live 

with his girlfriend, Joshulen Harrison. Ohio Adult Parole Authority Officer (APAO) James 

Campana, who was assigned as Lee’s parole officer, met with Lee later that month to go over the 

conditions of supervision. The conditions stipulated that Lee would obey all laws, including 

those related to illegal drug use, and that he would not possess any firearms or ammunition. 

They further provided that Lee would be subject to warrantless searches, pursuant to § 2967.131 

of the Ohio Revised Code, which allows officers to “search, with or without a warrant,” a 

parolee’s person, residence, vehicle, or other property if they have “reasonable grounds to 

believe” that the parolee is violating the law or otherwise not complying with the conditions of 

parole. Ohio Rev. Code Ann. § 2967.131(C). Lee signed a copy of the conditions, indicating 

that he had read and understood them. 

On December 21, 2013, Lee was pulled over by the Campbell, Ohio Police Department 

and arrested for felony possession of heroin and cocaine. Lee promptly reported the arrest to 

APAO Campana and met with him soon thereafter. Campana issued Lee a “unit sanction,” 
No. 14-3929 United States v. Lee Page 3 

directing him to comply with all court orders, appear for all scheduled court dates, and report to 

Campana as instructed. On Campana’s advice, Lee also sought help from a drug-and-alcohol 

treatment program. 

As Lee’s parole officer, Campana conducted periodic, unannounced home visits to ensure 

that Lee was complying with the conditions of his parole. Campana had last visited Lee on 

January 28, 2014, just two days before the search at issue in the present case. His visit on 

January 28 raised no concerns for Campana about Lee’s compliance with the conditions of 

parole. 

The next day, however, Campana received a tip about Lee from fellow parole officer 

Robert O’Malley. Officer O’Malley reported that he had received a call from an off-duty 

Youngstown police officer who was providing security for the apartment complex where Lee 

resided and with whom O’Malley had “a good relationship.” This unnamed officer informed 

O’Malley that the apartment-complex management had received reports from certain residents 

that there were “possible weapons going in and out of [Lee’s] apartment.” Neither the identities 

of the residents in question nor the timing of their reports is set forth in the record. Upon 

receiving the tip, Campana reported the same to his unit supervisor and suggested taking officers 

over to Lee’s apartment to investigate. Campana did not attempt to corroborate the tip 

beforehand. 

The following morning, Campana, accompanied by another parole officer and two 

Youngstown police officers, went to Lee’s apartment complex. They knocked on Lee’s door for 

approximately five minutes to no avail. Campana then tried calling Lee, but got no response. He 

next called Harrison, Lee’s girlfriend and coresident, who said that Lee was home but “in the 

back sleeping.” Harrison informed Campana that she was on her way back to the apartment and, 

when she arrived, she let the officers in. 

Once inside, Campana and the other parole officer walked into the back bedroom where 

Lee was sleeping and woke him up. The officers then walked Lee back to the living room, 

where they handcuffed him and patted him down for safety purposes. Campana asked Lee: “Is 

there anything in this apartment that you should not have?” Lee responded: “No. Go ahead and 

look.” 
No. 14-3929 United States v. Lee Page 4 

At that point, the two parole officers proceeded to search Lee’s apartment while the 

Youngstown officers stayed with Lee in the living room. The parole officers’ search uncovered 

approximately $8,880 in cash, hypodermic needles and plastic bags, and a 9 millimeter handgun. 

Campana then arrested Lee. 

B. Procedural background 

A federal grand jury indicted Lee in March 2014 for being a felon in possession of a 

firearm, in violation of 18 U.S.C. § 922(g)(1). Two months later, Lee moved to suppress the 

evidence seized during the officers’ January 30, 2014 search of his apartment, arguing that the 

search violated his Fourth Amendment rights. The district court summarized Campana’s 

testimony at the suppression hearing in June 2014 as follows: 

At the suppression hearing, APAO Campana testified that he relied upon the tip 

that defendant had weapons in his apartment, defendant’s recent drug arrest, and 

his history of weapons-related offenses in deciding to proceed to defendant’s 

apartment on January 30, 2014. He explained that he did not decide to search in 

December 2013, when he first learned about the drug arrest, because defendant 

had cooperated by reporting the arrest. He explained that he became concerned 

when he received the tip in January 2014, however, because the tip involved the 

potential unlawful possession of weapons and defendant had a history of weapons 

violations. 

Campana further testified that even if Harrison had not let the officers into the apartment that 

day, they would have nevertheless entered the apartment to conduct a search. 

 The district court denied Lee’s suppression motion on two grounds: (1) Harrison had 

consented to the officers’ entry and Lee had consented to the search when he told Campana to 

“Go ahead and look,” and (2) the officers had reasonable suspicion to conduct the warrantless 

search. According to the court, reasonable suspicion was established by the totality of the 

circumstances—namely, the January 29, 2014 tip, Lee’s December 21, 2013 arrest, and Lee’s 

history of weapons-related convictions. The court also found the tip to have “certain indicia of 

reliability” because it was conveyed by a Youngstown police officer who knew Officer 

O’Malley and who “found the tip sufficiently credible and reliable to prompt [the Youngstown 

police officer] to make further inquiries.” 
No. 14-3929 United States v. Lee Page 5 

 Shortly thereafter, Lee entered a conditional guilty plea that expressly reserved his right 

to appeal the district court’s order denying his suppression motion. Three months later, the court 

sentenced Lee to 53 months of imprisonment, to be followed by three years of supervised 

release. Lee has timely appealed the denial of his suppression motion. 

II. ANALYSIS

The district court articulated two alternative grounds in holding that the January 30, 2014 

search did not violate Lee’s Fourth Amendment rights. First, the court found that Harrison 

consented to the officers’ entry and that Lee consented to the subsequent search. Second, the 

court found that, even without consent, the officers had reasonable suspicion to search Lee’s 

apartment. We have grave doubts concerning the district court’s conclusion on reasonable 

suspicion, but because we agree with its conclusion on consent, we uphold the district court’s 

denial of Lee’s motion to suppress. 

A. Standard of review 

When reviewing the denial of a motion to suppress, we will set aside the district court’s 

factual findings only if they are clearly erroneous, but will review de novo the court’s 

conclusions of law. United States v. Lyons, 687 F.3d 754, 762 (6th Cir. 2012). Because Lee’s 

motion was denied, we view the evidence in the light most favorable to the government. See 

United States v. Gunter, 551 F.3d 472, 479 (6th Cir. 2009). 

Whether the officers had reasonable suspicion to search Lee’s apartment is a mixed 

question of law and fact that we review de novo. See United States v. Noble, 762 F.3d 509, 519 

(6th Cir. 2014). As for the question of consent, this court has inconsistently announced both a de 

novo and a clearly erroneous standard of review. Compare United States v. Moon, 513 F.3d 527, 

536 (6th Cir. 2008) (reviewing “the determination of the ultimate question of whether there was 

consent de novo,” but giving “due weight” to the district court’s factual inferences and credibility 

determinations), with United States v. Canales, 572 F.2d 1182, 1188 (6th Cir. 1978) (holding that 

whether consent is voluntary is a question of fact and that a finding of voluntary consent will be 

reversed only if clearly erroneous) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222-23 

(1973)), and United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc) (same). 
No. 14-3929 United States v. Lee Page 6 

Schneckloth, cited by this court in Canales and Erwin, clearly holds that “whether a 

consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or 

implied, is a question of fact to be determined from the totality of all the circumstances.” 412 

U.S. at 227. This court recently discussed its prior use of the two different standards and chose 

to follow Schneckloth. United States v. Holland, 522 F. App’x 265, 271 (6th Cir. 2013) (calling 

Schneckloth the “leading case on the issue” and noting the lack of “a convincing argument to the 

contrary”). Canales and Erwin, moreover, are the controlling Sixth Circuit opinions on this issue 

because a later panel of the court cannot overrule the published decision of a prior panel—

particularly an en banc panel—in the absence of en banc review or an intervening opinion on 

point by the Supreme Court. See Salmi v. Sec’y of Health & Human Svcs., 774 F.2d 685, 689 

(6th Cir. 1985). We will therefore review the question of consent under the “clear error” 

standard. 

B. The district court did not err in denying Lee’s suppression motion 

A warrantless search of a parolee’s dwelling where officers lacked reasonable suspicion 

is nevertheless constitutional if it was conducted with the consent of a resident. See Schneckloth, 

412 U.S. at 219 (“[O]ne of the specifically established exceptions to the requirements of both a 

warrant and probable cause is a search that is conducted pursuant to consent.”). “When seeking 

to justify a search based on consent, the government has the burden of showing by a 

preponderance of the evidence that the consent was ‘freely and voluntarily given,’ and was not 

the result of coercion, duress, or submission to a claim of authority.” United States v. Bueno, 21 

F.3d 120, 126 (6th Cir. 1994) (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)). 

The district court determined that both the officers’ entry and their subsequent search were 

consented to—the entry by Lee’s girlfriend and the search by Lee himself. 

1. The officers’ entry 

Lee admits that Harrison physically allowed the officers to enter the apartment, but takes 

issue with the officers’ failure to “disclose their intentions or purpose” of the search. He claims 

that the officers’ omission of their purpose—to search the premises—is a misrepresentation that 

negates Harrison’s consent. But any alleged misrepresentation by the officers is distinguishable 

from the outright deception that this court has found to undermine consent in prior cases. See, 
No. 14-3929 United States v. Lee Page 7 

e.g., United States v. Hardin, 539 F.3d 404, 424-25 (6th Cir. 2008) (holding that a government 

agent’s “ruse that he was investigating a water leak invalidated any possible consent” where “the 

effect of the ruse is to convince the resident that he or she has no choice but to invite the 

undercover officer in”). 

The officers’ entry in the present case was clearly permissible in light of United States v. 

Carter, 378 F.3d 584, 587 (6th Cir. 2004), where the defendant allowed officers who had first 

identified themselves as “housekeeping” into his hotel room. Despite the initial 

misrepresentation, this court held that the district court did not clearly err in finding that the 

defendant had validly consented to the officers’ entry because “[t]he investigating officers were 

instantly recognizable as policemen when [the defendant] opened the door. They properly asked 

permission to enter, and [the defendant] stepped back, letting them in.” Id. at 588. 

No initial misrepresentation was made here, and Lee does not dispute that the officers 

were plainly identifiable or that Harrison, as Lee’s coresident, was authorized to grant the 

officers entry. Nor does the fact that the officers would have entered even without consent 

invalidate the consent that Harrison actually gave. See id. at 589 (“[The defendant] makes much 

of the fact that [the detective] apparently intended in any event to enter the room to seize the 

blunt. What [the detective] might have done had consent not been given is, of course, 

irrelevant.”). We therefore conclude that the district court did not err in finding that Harrison 

validly consented to the officers’ entry. 

2. The search 

Lee next argues that his consent to the search itself was invalid. The crux of Lee’s 

argument is that his consent was tainted by the allegedly illegal entry and by his being 

handcuffed and frisked before the officers sought his consent. Because we have found no error 

in the district court’s conclusion that the officers’ entry was legal, Lee’s argument on this issue 

turns on whether being handcuffed and frisked made his consent to the search involuntary. 

As the district court correctly noted, just because a defendant is handcuffed when he or 

she gives consent does not make such consent invalid. See United States v. Perry, 703 F.3d 906, 

909 (6th Cir. 2013) (holding that the defendant’s consent was voluntary despite the fact that “she 
No. 14-3929 United States v. Lee Page 8 

was handcuffed when she gave it, that the police were armed, that the police never told her that 

she could decline to consent, and that she was drunk at the time”). The Perry court held that the 

district court did not clearly err in finding that the defendant’s consent was voluntary because she 

had been arrested (and handcuffed) before and her encounter with the officers “was brief, 

without any repeated questioning or physical abuse.” Id.

Lee’s verbal consent to the search—responding to Campana’s question about whether 

there was anything Lee should not have in the apartment with: “No. Go ahead and look.”—is 

very similar to the defendant’s valid consent in United States v. Canipe, 569 F.3d 597 (6th Cir. 

2009). In Canipe, an investigator conducting a traffic stop (the admitted purpose of which was 

to find out if the defendant had a firearm) asked the defendant “whether he had ‘anything’ in his 

vehicle that might be unlawful or about which [the investigator] needed to know,” to which the 

defendant responded: “No, he didn’t think so.” Id. at 600. The investigator then asked “whether 

‘it would be all right if I looked in’ the vehicle or ‘[y]ou care if I look?’” Id. In language 

equivalent to that used by Lee, the defendant in Canipe said that a search “wouldn’t be a 

problem.” See id. 

This court in Canipe held that the district court did not clearly err in its conclusion that 

the defendant’s consent “was voluntary, unequivocal, specific, intelligently given, and 

uncontaminated by duress or coercion. The duration of the detention and questioning [was] 

reasonable. There was no evidence of coercion. [The defendant] never asked to leave.” Id. at 

604. Based on both Perry and Canipe, we find no error, much less clear error, in the district 

court’s conclusion that Lee validly consented to the officers’ search. 

C. The officers in all likelihood lacked reasonable suspicion to perform a warrantless 

search of Lee’s residence 

Because we have found no error in the district court’s conclusion that Harrison consented 

to the officers’ entry and that Lee consented to the search, we need not decide whether the 

officers also had reasonable suspicion for the search. But we have grave doubt that they did. 

As a parolee in Ohio, Lee was subject to warrantless searches if the officers had 

“reasonable grounds to believe” that he was violating the law or the conditions of his parole. See 

Ohio Rev. Code Ann. § 2967.131(C). This court has already found the “reasonable grounds” 
No. 14-3929 United States v. Lee Page 9 

standard of this Ohio statute to be constitutional. United States v. Loney, 331 F.3d 516, 521 (6th 

Cir. 2003) (“O.R.C. § 2967.131(C) passes constitutional muster . . . .”). The Supreme Court has 

also held that, under the totality-of-the-circumstances approach, officers generally need only 

“reasonable suspicion” to search a probationer’s home. United States v. Knights, 534 U.S. 112, 

121 (2001). 

“Reasonable suspicion is based on the totality of the circumstances and has been defined 

as requiring ‘articulable reasons’ and ‘a particularized and objective basis for suspecting the 

particular person . . . of criminal activity.’” United States v. Payne, 181 F.3d 781, 788 (6th Cir. 

1999) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). The district court in the 

present case relied on (1) the anonymous tip about possible weapons at Lee’s apartment, 

(2) Lee’s recent drug arrest, and (3) Lee’s history of weapons-related offenses to find that 

reasonable suspicion existed. 

“[U]nder appropriate circumstances, an anonymous tip can demonstrate sufficient indicia 

of reliability to provide reasonable suspicion . . . .” Navarette v. California, 134 S. Ct. 1683, 

1688 (2014) (internal quotation marks omitted). Such indicia can include an officer’s 

independent corroboration of significant parts of the tip or the tipster demonstrating a “special 

familiarity” with the subject’s affairs by accurately predicting the subject’s future behavior. 

Alabama v. White, 496 U.S. 325, 331-32 (1990) (holding that an anonymous tip, independently 

corroborated by the police, that the defendant would be leaving a particular apartment at a 

particular time in a particular vehicle to go to a particular motel and that she would be in 

possession of cocaine exhibited sufficient indicia of reliability). Related indicia include the 

timing of the tip and the degree to which the tipster’s credibility is verifiable. See Navarette, 

134 S. Ct. at 1688-89 (holding that a 911 caller’s tip that a vehicle had run her off the road 

provided reasonable suspicion for the officers to stop a vehicle matching the caller’s description 

just 18 minutes later). 

But none of these indicia of reliability is present here. The tip about possible weapons at 

Lee’s apartment first originated from unknown residents of Lee’s apartment complex on an 

unknown date or dates. Management of the apartment complex then passed the information 

along to an off-duty Youngstown police officer, who in turn raised the issue with APAO 
No. 14-3929 United States v. Lee Page 10 

O’Malley, who finally conveyed the information to APAO Campana. This vague, 

uncorroborated tip that passed through multiple layers of hearsay was far weaker than the 

contemporaneous, eyewitness report made through a traceable call system in Navarette or the 

specific and independently corroborated tip in White. 

Nor does the fact that the tip “was conveyed by a trained Youngstown police officer, with 

whom APAO O’Malley had [a] prior relationship,” and who “found the tip sufficiently credible 

and reliable to prompt him to make further inquiries with the Adult Parole Authority,” lend it 

credibility. The district court’s conclusion simply assumes the reliability of the underlying tip. 

But just because a tip was passed through a police officer does not automatically make it reliable. 

See Payne, 181 F.3d at 789 (finding that a tip that had passed from a detective to a parole officer 

to another parole officer was unreliable and stale). 

Finally, although this court has recognized that “[e]ven a less-than-reliable tip may add 

something to the totality of the circumstances for determining reasonable suspicion,” the 

remainder of the circumstances cannot relate solely to the parolee’s criminal history, as they did 

here. See id. at 790-91 (“[A] person’s criminal record alone does not justify a search of his or 

her home, and the tip in this case adds so little that it does not reach the level of reasonable 

suspicion.”). Three woefully insufficient factors do not equal reasonable suspicion, even under a 

totality-of-the-circumstances approach. See id. at 789 (holding that the officers did not have 

reasonable suspicion to search the parolee’s property even when the parolee (1) had committed 

drug crimes in the past; (2) according to a tip, had been in possession of a large amount of drugs; 

(3) had absconded from supervision; and (4) hid from officers when they came to arrest him). 

All of the above leaves us with grave doubt concerning whether Officer Campana had 

reasonable suspicion to search Lee’s residence. But we nevertheless conclude that, because Lee 

consented to the officers’ search, the district court did not err in denying Lee’s suppression 

motion. 

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.