United States of America v. Richard Jones, Jr.

*The Honorable Edmund A. Sargus, Jr., United States District Judge
for the S outhern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0227P (6th Cir.)
File Name: 03a0227p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD JONES, JR.,
Defendant-Appellant.
X
-
-
-
->
,
-
-
N
No. 01-6036
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 00-00131—James H. Jarvis, District Judge.
Argued: December 12, 2002
Decided and Filed: July 10, 2003
Before: KENNEDY and GILMAN, Circuit Judges;
SARGUS, District Judge.*
_________________
COUNSEL
ARGUED: James W. Bell, Knoxville, Tennessee, for
Appellant. Perry H. Piper, ASSISTANT UNITED STATES
ATTORNEY, Chattanooga, Tennessee, for Appellee.
2 United States v. Jones No. 01-6036
ON BRIEF: James W. Bell, Knoxville, Tennessee, for
Appellant. David P. Folmar, Jr., ASSISTANT UNITED
STATES ATTORNEY, Knoxville, Tennessee, for Appellee.
GILMAN, J., delivered the opinion of the court, in which
SARGUS, D. J., joined. KENNEDY, J. (pp. 9-12), delivered
a separate dissenting opinion.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Richard Jones,
Jr. entered a conditional plea of guilty to possession of more
than 50 grams of cocaine base with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and to
possession of a firearm after having been convicted of a
felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
Pursuant to Rule 11(a)(2) of the Federal Rules of Criminal
Procedure, Jones reserved the right to appeal the decision of
the district court denying his motion to suppress evidence
seized at his residence during a search by federal and state
law enforcement authorities.
On appeal, Jones argues that the entry into his residence
was unlawful after he refused a request by law enforcement
officers that he voluntarily consent to a search. Jones asserts,
as part of this contention, that the two persons on the premises
that day never gave the officers permission to enter, and, in
any event, that they were without authority to do so. For the
reasons set forth below, we agree that the officers lacked
lawful authority to enter the residence. We therefore
REVERSE the judgment of the district court and REMAND
the case for further proceedings consistent with this opinion.

-- 1 of 6 --

No. 01-6036 United States v. Jones 3
I. BACKGROUND
In the summer of 2000, a federal task force composed of
agents of the Federal Bureau of Investigation (FBI) and the
Bureau of Alcohol, Tobacco and Firearms (ATF), together
with officers of the Knoxville Police Department, began
surveillance of Jones’s residence. Law enforcement officers
had obtained information that Jones was residing in
Knoxville, Tennessee and was in possession of firearms and
drugs. The agents and officers subsequently determined that
Jones was wanted on an outstanding federal arrest warrant.
On August 9, 2000, members of the task force pulled Jones
over in his car and arrested him on the federal warrant. The
arresting officers asked Jones for permission to search his
residence, which he refused to give. Jones was then placed in
custody and transported to the local police station.
As a result of the surveillance conducted prior to Jones’s
arrest, the officers knew that two other individuals were at his
residence. The officers had observed a male working on a
motor vehicle in the driveway and had seen him take off one
of the door panels. A second person was observed bringing
food and water to dogs that were living at the residence.
FBI Special Agent Steven Fisher testified that, after
arresting Jones, he and two Knoxville police officers went
back to the residence, even though they had been denied
consent to search by Jones. Fisher testified that their purpose
was not to seek consent for a search, but instead to determine
the identity of the two individuals at the residence. He and
the two Knoxville police officers ultimately went to the front
door and asked to speak to the occupants. Fisher testified
that, had the individual answering the door refused to speak
to them, he and the police officers would have left the
premises.
Officer Kenneth Gilreath of the Knoxville Police
Department knocked on the door, while Fisher waited outside
4 United States v. Jones No. 01-6036
to ensure that the dogs did not attack. According to Gilreath,
James Teasley answered the door. Gilreath identified himself
and asked Teasley his identity. After Teasley gave his name,
Gilreath asked him his purpose in being there. Teasley
advised that he was there to clean up the house. Gilreath then
asked if he could come in and talk to Teasley. The district
court found that Teasley told the officer that he could come
inside the door of the residence. Jones argues, however, that
Teasley never gave the officer permission, but simply stepped
back from the front door.
After stepping inside the residence, Gilreath observed a
second male sitting to his left in the living room. Gilreath
began a conversation with the male, who identified himself as
Thomas Dickason. Officer Gilreath questioned Dickason
about why he was working on the car and removing the door
panel. He also asked Dickason about his relationship to
Jones. During the course of their conversation, Gilreath
recognized prison tattoos on Dickason. Dickason told
Gilreath that he had served a prison sentence but was now
straight.
He also advised Gilreath that his identification (ID) was in
a duffel bag in the back bedroom together with his clothes and
tools. Gilreath then asked Dickason for permission to look
for the ID in the bedroom. Dickason told Gilreath that he
could and pointed to the back bedroom where the duffel bag
containing the ID was located.
Gilreath walked to the room and found the duffel bag.
While there, he observed a rifle leaning up in the corner of the
bedroom and what appeared to be two other firearms and a
crossbow. When the duffel bag was opened, Gilreath saw a
pipe apparently used to smoke crack cocaine.
The residence was then secured while the officers sought a
federal search warrant. Special Agent Steven Fisher
submitted an affidavit in conjunction with the application for
a search warrant, expressly noting that Jones had denied

-- 2 of 6 --

No. 01-6036 United States v. Jones 5
permission for a consensual search of the residence. The
affidavit further described the interview of Teasley conducted
by Officer Gilreath in the foyer of the residence. Fisher
further averred that, while in the foyer, the officers observed
Dickason. After questioning Dickason, the affidavit noted
that Dickason gave Gilreath permission to retrieve his duffel
bag from a bedroom that Dickason had occupied the night
before.
Jones contends that after he refused consent to search,
neither Teasley nor Dickason, both of whom had lesser
possessory rights to the premises than Jones, could give
lawful consent for the officers to enter the premises. For the
reasons set forth below, we agree.
II. ANALYSIS
This court reviews the district court’s findings of fact in a
suppression hearing under the “clearly erroneous” standard,
while the district court’s conclusions of law are reviewed de
novo. United States v. Pennington, 328 F.3d 215, 216-17 (6th
Cir. 2003). In order to uphold the ruling of the district court
that denied Jones’s motion to suppress, we must find that
Officer Gilreath was lawfully admitted to the residence by
Teasley, and also that his subsequent progression through the
house once inside was within the bounds of the Fourth
Amendment.
As an initial matter, we note that the magistrate judge
referred to both Teasley and Dickason as overnight guests
throughout his analysis. Dickason admitted that he had slept
in the residence, but there is no evidence in the record
suggesting that Teasley was anything more than a handyman.
Because this factual finding of the magistrate judge was
clearly erroneous, we refer to Teasley below as an employee
of Jones. Even labeling Teasley as an overnight guest,
however, would not change what we conclude is the proper
outcome of this case.
6 United States v. Jones No. 01-6036
The Supreme Court has clearly stated that “the Fourth
Amendment has drawn a firm line at the entrance to the
house.” Payton v. New York, 445 U.S. 573, 590 (1980)
(holding that the Fourth Amendment prohibits the police from
making a warrantless and nonconsensual entry into a suspect's
home in order to make a routine felony arrest). In addition,
a prior decision of this court notes that “the Supreme Court
has firmly and repeatedly rejected the proposition that the
Fourth Amendment offers no protection against government
entry into a home unless the entry is for the purpose of
performing a traditional ‘search’ or ‘seizure.’” United States
v. Rohrig, 98 F.3d 1506, 1511 (6th Cir. 1996) (holding that
although police officers entered a home for the sole purpose
of turning down the stereo, Fourth Amendment protections
were triggered). This means that even if we were to accept
the contention that Officer Gilreath entered the residence
solely for the purpose of continuing his conversation with
Teasley, his conduct would not be insulated from Fourth
Amendment analysis.
The district court found that Teasley affirmatively gave
Gilreath permission to enter the residence. Because we
believe that this is a ruling that could have gone either way,
it was not clearly erroneous. Anderson v. Bessemer County,
470 U.S. 564, 570 (1984) (“Where there are two permissible
views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.”). We therefore turn to the
question of whether Teasley had the authority to give that
permission. The question of when an employee’s consent is
sufficient for entry into a residence has not been treated
uniformly by the courts. 3 Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment, §8.6(c) (3d
ed. 2002). Some have relied on a theory of agency, while
others depend entirely on whether the employee had apparent
authority. Id. In general, the cases have engaged in a fact-
specific analysis of the level of responsibility given to the
employee. If the employee’s job duties include the granting
of access to the premises, authority to consent is more likely
to be found. A caretaker left in charge of a home for several

-- 3 of 6 --

No. 01-6036 United States v. Jones 7
weeks, for example, might have authority to permit entry,
while a worker who is present on a more limited basis would
not. Id.
In this case, Teasley, a handyman, clearly lacked actual
authority to permit Officer Gilreath to enter the residence. His
authority, even assuming that he had any, would have ceased
at the point that Jones denied consent to a search, which had
to be understood by Officer Gilreath to include a denial of
entry. Although it is true that an employee does in some
instances have sufficient authority to consent to entry into or
a search of his employer’s residence, the lesser, and
necessarily derivative, interest of the employee cannot
override the greater interest of the owner. When the primary
occupant has denied permission to enter and conduct a search,
his employee does not have the authority to override that
denial. See United States v. Impink, 728 F.2d 1228, 1234 (9th
Cir.1984) (stating that “when the police intentionally bypass
a suspect who is present and known by them to possess a
superior privacy interest, the validity of third party consent is
less certain”). An individual with an equal interest in the
residence, such as a spouse or cotenant, would presumably
have such authority, but that is not the case here. LaFave,
§ 8.6(c).
We next turn to the question of whether any reasonable
person would have believed that Teasley had apparent
authority to consent to Gilreath’s entry into the residence.
This court has previously held that “[w]hen one person
consents to a search of property owned by another, the
consent is valid if the facts available to the officer at the
moment . . . warrant a man of reasonable caution in the belief
that the consenting party had authority over the premises.
Thus, there is no violation of the Fourth Amendment if, under
the totality of the circumstances, the officer performing the
search has relied in good faith on a person’s apparent
authority.” United States v. Campbell, 317 F.3d 597, 608 (6th
Cir. 2003) (internal quotation marks and citations omitted).
8 United States v. Jones No. 01-6036
Officer Gilreath knew that the individual who opened the
door was simply a handyman. This fact, combined with
Jones’s prior denial of consent to a search, made it impossible
for a “man of reasonable caution” to believe that Teasley had
the authority to consent to a search of the residence, or even
to permit entry. Because Teasley had neither actual nor
apparent authority to admit Officer Gilreath to the residence,
the warrantless entry was unlawful. This means that all of
Officer Gilreath’s conversations and discoveries after he
entered must be excluded under the “fruit of the poisonous
tree” doctrine. Northrop v. Trippett, 265 F.3d 372 (6th Cir.
2001) (“[T]he fruit of the poisonous tree doctrine provides
that evidence discovered as the indirect result of a Fourth
Amendment violation is inadmissible . . . .”). We therefore
need not reach the propriety of Officer Gilreath’s actions once
inside the residence.
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the
judgment of the district court and REMAND the case for
further proceedings consistent with this opinion.

-- 4 of 6 --

No. 01-6036 United States v. Jones 9
_________________
DISSENT
_________________
KENNEDY, Circuit Judge, dissenting. Contrary to the
majority, I believe that the facts available to Officer Gilreath
at the time he asked permission to step into the foyer of
Jones’ home were such as to warrant a reasonable belief that
Teasley had sufficient authority over the premises to consent
to Gilreath’s entry for the purpose of continuing the
conversation with Teasley, even in light of Jones’ prior denial
of consent to search the residence. Accordingly, I
respectfully dissent.
When reviewing the denial of a motion to suppress, this
Court reviews the district court’s factual findings for clear
error and its legal conclusions de novo. United States v.
Taylor, 248 F.3d 506, 511 (6th Cir. 2001). I disagree with the
majority that the record supports a finding that Officer
Gilreath knew that Teasley was a hired handyman when he
knocked on the front door of the house, questioned Teasley
briefly, asked to step inside, and Teasley responded “sure” to
Gilreath’s request to enter.
Officers Gilreath and Kingbury conducted surveillance of
Jones’ home on the day of, but prior to, Jones’ arrest.
Gilreath testified that he observed a white male working on a
car in Jones’ driveway and a black male feeding a couple of
dogs on a screened-in back porch. Gilreath testified that the
black male he observed could have been Teasley. Gilreath
also testified that “[t]here was a lot of activity in and around
the house, with people coming and going.”
When Agent Fisher asked Jones if he could search Jones’
residence, he also asked who was at the residence. According
to Fisher, Jones replied that “family members were back at
the residence.” Fisher then conferred with Officers Gilreath
and Kingsbury, who were present at the arrest scene, as to
10 United States v. Jones No. 01-6036
whether the officers should go to Jones’ residence and try to
identify some of the people who had been observed at the
residence earlier in the day.
When the officers arrived at Jones’ residence, Agent Fisher
hung back near the street to maintain a clear view toward the
back of the residence to protect Officers Gilreath and
Kingsbury’s safety as they went up and knocked on the door.
The officers were concerned about the large dogs, which
included some rottweilers, they had seen earlier. Fisher
remained in this position for “short period of time” before
approaching the front porch himself.
Officer Gilreath testified that a black male responded to his
knock on the door. Officer Gilreath’s testimony as to the
substance of his conversation with the black male is as
follows:
[W]hen he came to the door I identified myself. I
showed him my badge and my ID and I asked him who
he was. He told me James Teasley and he seemed kind
of nervous. I asked him, well, Mr. Teasley, what are you
doing here and he said cleaning up. I said, Mr. Teasley,
I said, you are a little nervous, you don’t have any
warrants or anything on you, do you, and he says, well,
I don’t know. I said, well, either yes or no and he says,
I don’t know. I said, is that a maybe? He says, maybe.
I said, well, can I talk to you for a minute? Can I come in
and talk to you? He says, sure. He steps back and I step
directly inside the door.
The district court credited Gilreath’s testimony that Teasley
responded “sure,” giving express permission to enter the
foyer.
At the moment Officer Gilreath was given permission to
enter Jones’ dwelling, he knew that Jones had claimed that
“family members” were at his home, that Teasley resembled
the man Gilreath had observed feeding dogs on the back

-- 5 of 6 --

No. 01-6036 United States v. Jones 11
1Jones is black as was the female with him at the tim e of his arrest.
porch earlier in the day, and that Teasley, who was standing
with a mop and bucket, had explained that he was cleaning
up, when asked to explain his presence. Under these
circumstances, a reasonably cautious officer could reasonably
assume that Teasley was a member of the household1 and, as
such, had the authority to at least consent to Officer Gilreath’s
entry into the residence for the purpose of completing the
conversation. This Circuit has held that in applying the test
to determine whether a consent to entry was valid, the actual
relationship between the consenter and owner is not critical;
rather, it is how the relationship would appear to the officer
that is critical. United States v. Jenkins, 92 F.3d 430, 436 (6th
Cir. 1996). Unless Teasley provided Officer Gilreath with
additional information that would have altered the default
assumption that the consenter has authority over the property,
a reasonable officer may assume that someone who comes to
the door after the knock has authority to consent to police
entry into the dwelling. Id. at 437.
Only Agent Fisher testified that Teasley “was there to clean
the house. He was kind of like a hired individual.” Officer
Gilreath did not testify that Teasley identified himself as a
person hired to clean the house or that he otherwise was
aware that Teasley was hired help. It is clear that Fisher was
not present on the porch when Teasley said he was “cleaning
up.” Fisher’s testimony as to Teasley’s employment status
should not be credited in determining what Gilreath knew
when he acted on Teasley’s consent to enter. While Fisher
refers to Teasley as a handyman, the basis for this conclusion
is not established. Family members also can, and do, “clean
up.”
The fact that Jones had denied the officers’ request to
search his residence does not alter the analysis. As the
majority observes, an individual with an equal interest in the
residence, such as a domestic member of the household, could
12 United States v. Jones No. 01-6036
2Officer Gilreath recognized the gun as contraband because Jones
had just been arrested on an outstanding warrant for po ssession of a
firearm by a convicted felon and, prior to the officer’s entry into the
bedroom, Dickason had admitted to Gilreath that he had spent time in
prison.
have the authority to permit the police to enter the residence,
despite Jones’ prior denial. The majority relies solely on the
entry to find that all the evidence obtained after entry,
including the proceeds of the search warrant, should be
suppressed. Yet the entry was not a search and no
observation of criminal conduct was made upon entering.
The majority does not contend that Dickason, known to
Gilreath as an overnight guest for at least two days, could not
consent to the entry of Dickason’s bedroom. As an overnight
guest, Dickason had authority to permit Gilreath to go the
bedroom to get Dickason’s identification. There Gilreath
observed the gun in plain view, which provided the
information used to secure the search warrant.2 While I agree
that Gilreath’s entry is not isolated from Fourth Amendment
analyses, I would hold that each step of the officers’ conduct
was reasonable under the circumstances. I would, therefore,
affirm the district court order denying the motion to suppress
and affirm the conviction.

-- 6 of 6 --