United States of America v. Sean Carter

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0263P (6th Cir.)
File Name: 04a0263p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SEAN CARTER,
Defendant-Appellant.
X
-
-
-
->
,
-
-
N
No. 01-5338
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 00-00058—Henry R. Wilhoit, Jr., District Judge.
Argued: June 11, 2003
Decided and Filed: August 6, 2004
Before: BOGGS, Chief Judge; and MARTIN,
KRUPANSKY, BATCHELDER, DAUGHTREY,
MOORE, COLE, CLAY, GILMAN, GIBBONS,
ROGERS, SUTTON, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: Robert L. Abell, Lexington, Kentucky, for
Appellant. Charles P. Wisdom, Jr., ASSISTANT UNITED
STATES ATTORNEY, Lexington, Kentucky, for Appellee.
ON BRIEF: Robert L. Abell, Lexington, Kentucky, for
2 United States v. Carter No. 01-5338
Appellant. Charles P. Wisdom, Jr., Ron L. Walker, Jr.,
ASSISTANT UNITED STATES ATTORNEYS, Lexington,
Kentucky, for Appellee.
BOGGS, C. J., delivered the opinion of the court, in which
KRUPANSKY, BATCHELDER, DAUGHTREY,
GIBBONS, ROGERS, SUTTON, and COOK, JJ., joined.
MARTIN, J. (pp. 10-13), delivered a separate dissenting
opinion, in which MOORE, COLE, and CLAY, JJ., joined,
with MOORE, J. (pp. 14-18), also delivering a separate
dissenting opinion in which COLE and CLAY, JJ., joined.
GILMAN, J. (pp. 19-21), delivered a separate dissenting
opinion.
_________________
OPINION
_________________
BOGGS, Chief Judge. Defendant Sean Carter pleaded
guilty to possession of crack cocaine with intent to distribute
and to aiding and abetting his cohort Calvin Holliday in the
same crime. The district court denied his motion to suppress
evidence gained from a warrantless search by police of his
hotel room, and he now challenges that ruling.
A divided panel of this court previously affirmed the
district court ruling, on the grounds that exigent
circumstances had justified the police officers’ entry into
Carter’s hotel room. We granted rehearing en banc to
consider whether the circumstances truly qualified as exigent.
2003 U.S. App. LEXIS 3371. We need not reach that
question because we now conclude that the district court
correctly found that Carter consented to the officers’ entry.
I
The facts in this case appear in greater detail in the panel
decision at 315 F.3d 651. We repeat the salient points here.

-- 1 of 11 --

No. 01-5338 United States v. Carter 3
On March 21, 2000, in Lexington, Kentucky, a confidential
informant informed law enforcement officials that Carter and
Holliday were in the process of leaving a “crack house” to
obtain more crack cocaine for sale. The confidential
informant provided a description and license plate number for
the vehicle in which Carter and Holliday were traveling.
Law enforcement officers followed the vehicle to a Red
Roof Inn and observed Carter and Holliday enter Room 119.
They monitored the room until Holliday left it and returned to
his vehicle. When Holliday began to drive out of the parking
lot, the officers executed a traffic stop, detected the odor of
marijuana emanating from the vehicle, and observed
marijuana in the vehicle. They arrested Holliday and
searched his person and vehicle, finding seventeen grams of
crack cocaine. The validity of this arrest is not challenged.
The officers then returned to Room 119. They knocked on
the door four times, the first two times identifying themselves
as housekeeping personnel. Carter finally opened the door,
and saw two officers wearing vests bearing the word
“POLICE” over civilian clothes, and a third in a police
uniform. None of the officers had their firearms drawn or
otherwise behaved in a threatening manner. The officers
identified themselves. As they did so, they smelled marijuana
from inside the room and observed what appeared to be, and
was, the stub of a mostly-consumed marijuana cigar, or
“blunt,” in plain sight in an ashtray on a table adjacent to the
door.
It is undisputed that at this point the officers asked Carter
if they could enter the hotel room and speak to him. In
response, Carter stepped back and cleared a path for the
officers to enter. Detective Edward Hart immediately
proceeded to the table, picked up the “blunt” stub, and
quickly confirmed by sight and scent his initial belief that it
contained marijuana. The officers then placed Carter under
arrest. Carter proved to be carrying twelve grams of crack
cocaine and $ 1,749 in cash on his person.
4 United States v. Carter No. 01-5338
A federal grand jury indicted Carter and Holliday on five
counts of cocaine trafficking, in violation of 21 U.S.C.
§ 841(a)(1). The district court conducted an evidentiary
hearing and denied Carter’s motion to suppress the evidence
found in the hotel room and on his person. At the hearing,
Detective Hart testified in detail as to the circumstances of his
entry into Room 119. The district court found the officers’
entry justified by exigent circumstances, namely that once
Carter was alerted to the presence of law enforcement
personnel he could have quickly disposed of the evidence; in
the alternative, the court found that Carter had validly
consented to the officers’ entry into his hotel room. Carter
thereupon conditionally pled guilty, reserving the right to
challenge his conviction based on the outcome of the
suppression hearing. Following sentencing, Carter timely
brought this appeal.
II
This court reviews “a district court’s factual findings
regarding motions to suppress for clear error and its legal
conclusions de novo.” United States v. Blair, 214 F.3d 690,
696 (6th Cir. 2000) (citation omitted). Where a district court
denies that motion, we consider the evidence “in the light
most favorable to the government.” United States v.
Wellman, 185 F.3d 651, 654-55 (6th Cir. 1999) (citation
omitted).
It is well-settled that a person may waive his Fourth
Amendment rights by consenting to a search. Davis v. United
States, 328 U.S. 582, 593-94 (1946). Consent to a search
“may be in the form of words, gesture, or conduct.” United
States v. Griffin, 530 F.2d 739, 742 (7th Cir. 1976). In
whatever form, consent has effect only if it is given freely and
voluntarily. Bumper v. North Carolina, 391 U.S. 543, 548
(1968).
Whether consent was free and voluntary so as to waive the
warrant requirement of the Fourth Amendment is “a question

-- 2 of 11 --

No. 01-5338 United States v. Carter 5
of fact to be determined from the totality of all the
circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218,
227 (1973). Thus, our review is for clear error. United States
v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc). Carter
did not testify at the suppression hearing, so our information
as to the exact sequence of events after Carter opened the
door to Room 119 comes by way of Detective Hart’s
testimony:
Q. Okay. And again, you testify that Mr. Carter told you
all to come on in. You all just entered the room on
your own; right?
A. We asked if we could come in and speak to him. At
this time he moved away from the door and backed up.
Q. Did he say yes?
A. I don’t recall him saying yes. But as he was doing
that, I went on to retrieve the suspected marijuana.
Q. Okay. So as he was standing, stepping back, you were
proceeding on in any way?
A. Yes. Based on the odor that I smelled and what I was
observing, I went in to obtain [the blunt].
* * * * * * *
Q. [Y]ou said that you are not certain if he responded
either yes or no to Detective Carter’s asking about –
asking permission to come in?
A. That’s correct.
Q. But regardless of what he said, you had already
ascertained the odor of marijuana, and seeing this blunt
that you were going to seize that and arrest him for
possession of marijuana regardless?
6 United States v. Carter No. 01-5338
A. Yes. I was going to seize that item.
We hold that the district court did not clearly err,
considering this testimony and all the circumstances, in
finding that Carter’s actions as described constituted valid
consent. The investigating officers were instantly
recognizable as policemen when Carter opened the door.
They properly asked permission to enter, and Carter stepped
back, letting them in. Any ordinary caller, under like
circumstances, would understand assent to have been given,
and the police are not held to a higher standard in this regard
than an ordinary person. Robbins v. MacKenzie, 364 F.2d 45,
49 (1st Cir. 1966) (“An ordinary person who knocks on a
door and receives assent may properly consider himself an
invited guest . . . . Similarly, the fourth amendment . . . does
not require [a police officer] to be clairvoyant.”).
A number of cases with superficially similar fact-patterns
have held that the confrontation between police and suspect
was impermissibly tainted by “duress, coercion [or] trickery.”
United States v. Jones, 641 F.2d 425, 429 (6th Cir. 1981)
(search not consented to, where police officers pounded and
kicked on door, barged in with firearms drawn before any
words were exchanged, and claimed to have a warrant). Even
a spoken assent to search may be too ambiguous to establish
consent in certain circumstances. E.g., United States v.
Worley, 193 F.3d 380, 386 (6th Cir. 1999)(“you’ve got the
badge, I guess you can [search]” is not consent where context
was intimidating and defendant testified that he felt he had no
choice.) But each such determination is “fact-specific,” and
there is no “‘magic’ formula or equation” for determining
consent in the abstract. Id. at 387.
Here, the officers specifically asked if they could come in,
and Carter was not threatened, coerced, or tricked when he
chose to let the officers into his room. Nothing in the record
indicates that he was unaware of his well-known right to
refuse entry, which he might have done simply by standing
pat, saying “no,” or closing the door. His decision may have

-- 3 of 11 --

No. 01-5338 United States v. Carter 7
been rash and ill-considered, but that does not make it invalid.
The Fourth Amendment does not require police officers to
counsel a suspect to consider his options with care.
Carter makes much of the fact that Hart apparently intended
in any event to enter the room to seize the blunt. What Hart
might have done had consent not been given is, of course,
irrelevant. But Carter urges that consent was not given
because Hart carried out his intent and barged ahead to seize
the blunt, and Carter merely jumped out of the way. This is
one possible reading of Hart’s testimony, and such a scenario
would not amount to consent. See Robbins, 364 F.2d at 48
(stepping back in fear is not consent). But precisely because
testimony often becomes more ambiguous when reduced to
toneless words on a page, we defer to the district court’s
factual finding. See Anderson v. City of Bessemer City, 470
U.S. 564, 574 (1985) (“[w]here there are two permissible
views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous”).
Carter further contends that the district court judge never
actually found that consent was given, so there is no occasion
for deferential review. Carter relies on the judge’s exact
words at the suppression hearing: “I believe the officer has
testified without contradiction here now that he has
permission to enter the room. And the defendant did not say
anything but stepped back, which indicates to the Court that
there was at least acquiescence.” Focusing on the word
“acquiescence,” Carter reminds us that consent will not be
found upon mere “acquiescence to a claim of lawful
authority.” Bumper, 391 U.S. at 548-49 (1968).
Carter’s verbal quibble is bootless. Bumper dealt with
acquiescence to the execution of an improperly-issued
warrant. Ibid. The officers here made no such overpowering
claim of authority, in the face of which any consent would
have been mere acknowledgment. “Acquiescence”
commonly indicates assent, however grudging. Black’s Law
Dictionary, 23 (7th ed. 1999)(“tacit or passive acceptance;
8 United States v. Carter No. 01-5338
implied consent”); Ballentine’s Law Dictionary (3d ed. 1969)
(“acceptance, perhaps without approval . . . . Conduct from
which may be inferred assent with a consequent estoppel or
quasi-estoppel” (citations omitted)). Here, the district judge
explicitly used “acquiescence” to mean “permission”—that is,
consent.
Fundamentally, Carter asks us to hold as a matter of law
that consent must be given verbally, perhaps by some “magic
words” formula. This we decline to do. Although a man’s
home is his castle, trumpets need not herald an invitation.
The police may be kept out or invited in as informally as any
other guest. Carter invited the police in and cannot undo his
act in court.
III
Once invited into Carter’s hotel room to talk, Detective
Hart had the latitude of a guest in the room unless restricted
by Carter himself. Thus, there was nothing improper in
Hart’s decision to take the few steps to the table which, he
testified, was “near the door, between the door and the wall,”
and visible even from outside the room. Once he had arrived
there, the smell and appearance of the blunt, coupled with the
knowledge that Holliday had confessed to having smoked
marijuana a short time ago in that room, “warrant[ed] a man
of reasonable caution in the belief” that it was a blunt and not
a legal cigar filled with tobacco. Texas v. Brown, 460 U.S.
730, 742 (1983) (quoting Carroll v. United States, 267 U.S.
132, 162 (1925)). The “plain view” exception to the warrant
requirement applies: the blunt was in plain view; there was
probable cause to consider it incriminating on its face; Hart
was lawfully in position to see it; and Hart had a lawful right
of access to the item. United States v. Calloway, 116 F.3d
1129, 1133 (6th Cir. 1997).
As some of our colleagues note, Hart did testify that a
blunt closely resembles an ordinary cigar. But this does not
mean, contrary to Judge Martin’s dissent (page 12), that “the

-- 4 of 11 --

No. 01-5338 United States v. Carter 9
fact that the cigar was a ‘blunt’ was not immediately
incriminating.” If Hart was reasonable in believing the object
was a blunt based on what he lawfully observed, then it was
immediately incriminating. United States v. McLevain, 310
F.3d 434, 441 (6th Cir. 2002)(“marijuana . . . on a table in
plain view” would obviously be immediately incriminating).
A “blunt” is a marijuana-filled cigar. Hart testified that this
particular ‘cigar’ smelled like burnt marijuana, and that as an
experienced drug-interdiction officer, he was very familiar
with that scent. See Brown, 460 U.S. at 743 (1983) (officer
who used his “trained eye” to identify dual-use drug
paraphernalia had probable cause). As he got closer to the
‘cigar,’ he testified, the scent got stronger, and when he
looked closely at the stubbed-out end, he could see “the green
leafy substance in the end.” See id. at 740 (officer whose
suspicions are aroused may shift angle of view and shine light
on suspect objects to see them better); compare Arizona v.
Hicks, 480 U.S. 321, 325 (1987) (officer relying on plain
view doctrine may not “expose[] to view concealed portions”
of homeowner’s property). Unlike the officers in McLevain,
Hart did not have to conduct “further investigation” (e.g.,
chemical testing of commonplace objects). McLevain, 310
F.3d at 443. He had probable cause “on the facts then
available.” United States v. Beal, 810 F.2d 574, 577 (6th Cir.
1987).
Carter does not argue that there was anything improper
about his consequent arrest or the search of his person
incident to that arrest, except insofar as the further search
would be the ‘fruit of the poisonous tree’ had the initial
seizure been improper. Because the initial seizure was
proper, the tree is untainted, and in the absence of any other
reason to suppress the resulting evidence, it was properly
admitted.
IV
For these reasons, we AFFIRM the order of the district
court.
10 United States v. Carter No. 01-5338
______________
DISSENT
______________
BOYCE F. MARTIN, JR., Circuit Judge, dissenting. Of
the various justifications that have been used to sanction the
warrantless search in this case, in my view none satisfies
constitutional standards. The district court found that Sean
Carter consented to the search of his room and person. On
appeal, a divided panel did not reach the issue of consent,
finding instead that exigent circumstances justified the search.
The majority now chooses not to reach the issue of exigent
circumstances, and upholds the district court’s decision on yet
another alternative basis. From the hat of uncertain
jurisprudence, the majority hand-picks anomalous
justifications to rationalize unlawful police action in
retrospect, concluding that Carter may not have consented to
the search, but he did consent to the officers’ entry, and,
because marijuana was in “plain view,” the subsequent search
of his room and person was valid. Of all of the proffered
justifications for the police action in this case, the majority’s
is particularly repugnant, and I necessarily dissent.
On the night that Carter was arrested, the officers were
pursuing a confidential informant’s tip that Carter and his
friend, Calvin Holliday, were going to a motel to resupply
their crack cocaine inventory. While surveilling the motel for
over an hour and a half, the officers had time to summon a
narcotics detection dog and handler to the scene, but failed to
obtain a warrant to search Carter’s motel room. In the
absence of any urgency, the police had additional time to
obtain a search warrant after they stopped Holliday, who, in
combination with the informant’s tip, provided the officers
with probable cause to believe that they would find more
contraband in the motel room. Though they had plenty of
time to obtain a warrant, the officers proceeded inside without
one.

-- 5 of 11 --

No. 01-5338 United States v. Carter 11
Arriving at Carter’s motel room door, they knocked twice
and deceptively called out that they were motel housekeeping
personnel. After two more knocks, Carter opened the door.
Detective Edward Hart testified that at that moment, he
spotted a cigar on a table inside and noticed that Carter was
there alone. Accompanied by officers who were wearing
official identification and were presumably armed, Detective
Hart requested permission to enter the room. Upon this show
of force, Carter stepped back, but did not respond. In the
same moment, Detective Hart walked past Carter to examine
the cigar and determined that it was a “blunt”—a hollowed-
out cigar filled with marijuana.
The trial court found that Carter voluntarily “acquiesced”
to the search by “stepping back” from the door upon
Detective Hart’s request to enter, and that Carter’s
“acquiescence” signaled consent. The majority partially
agrees, finding that Carter’s “acquiescence” signaled his
consent to the officer’s entry, though not necessarily to the
search. In that sense, the majority concludes, Carter “invited”
the officer in as he would “any other guest.” This conclusion
lacks any foundation in fact or law. A police officer is not
“any other guest.” Consent to entry in this case must satisfy
the requirements of the Fourth Amendment.
We studied those requirements in United States v. Worley,
193 F.3d 380, 386 (6th Cir. 1999), where we held that consent
exists only when it is “unequivocally, specifically, and
intelligently given, uncontaminated by any duress and
coercion.” Consent is a “free and voluntary” statement of
acceptance, and not “merely a response conveying an
expression of futility in resistance to authority or acquiescing
in the officers’ request.” Id. at 386. Carter’s motion of
“stepping back” upon a show of police force hardly signals an
unequivocally free or voluntary response. Rather than an
invitation, Carter’s “stepping back” was more likely futile
resignation or an effort to get out of harm’s way. On this
record I simply cannot conclude that Carter’s “acquiescence”
12 United States v. Carter No. 01-5338
met the stringent requirements for consent that we have
articulated in our Fourth Amendment jurisprudence.
Supplementing its conclusion that Carter consented to the
officers’ entry, the majority utilizes the “plain view”
exception to the Fourth Amendment’s warrant requirement to
legitimize the warrantless search. The majority’s holding is
wholly indefensible. This Court has explained that to invoke
the plain view doctrine, the evidence must be “(1) in plain
view; (2) of a character that is immediately incriminating;
(3) viewed by an officer lawfully located in a place from
where the object can be seen; and (4) seized by an officer who
has a lawful right of access to the object itself.” United States
v. Roark, 36 F.3d 14, 18 (6th Cir. 1994) (citing Horton v.
California, 496 U.S. 128 (1990)). See also United States v.
Morgan, 743 F.2d 1158, 1167 (6th Cir. 1984). The “plain
view” exception is inapplicable in this case because the fact
that the cigar was a “blunt” was not immediately
incriminating. See United States v. McLevain, 310 F.3d 434,
443 (6th Cir. 2002) (“[W]hen an item appears suspicious to an
officer but further investigation is required to establish
probable cause as to its association with criminal activity, the
item is not immediately incriminating.”) (citation omitted).
Detective Hart’s own testimony supports this conclusion.
Hart explained: “From the door frame I could look in, and
there was a small table . . . between the door and the wall. On
that I saw a--what I thought was a blunt--it’s a hollowed out
cigar that marijuana is then put into.” Detective Hart later
acknowledged, however, that whether a cigar is truly a
“blunt” can only be verified by close examination. This
exchange followed:
Q. From the outside it looks like a regular cigar?
A. Yes.

-- 6 of 11 --

No. 01-5338 United States v. Carter 13
Q. Okay. So if I am looking across--if one was sitting on
the table over there, it might very well be filled with
marijuana, but it would look like a regular cigar?
A. That’s correct.
From this testimony, it is clear that the fact that the cigar was
a “blunt” was not immediately apparent; rather, that fact was
only discoverable upon closer inspection. Because the item
that Detective Hart observed was not immediately
incriminating from where he stood, the “plain view”
exception to the warrant requirement cannot apply.
The United States has established neither consent nor the
applicability of the “plain view” exception. And certainly
there were no exigent circumstances—the officers had plenty
of time to secure a warrant after they stopped Calvin
Holliday. Still, the majority inexplicably makes a determined
effort to legalize unlawful police conduct and lead us through
the gates of legitimacy, down the steep slope of retrospective
rationalization, to where, even in this day of technological
sophistication, we carelessly allow the expansion of police
powers beyond what the Constitution allows. See United
States v. Carpenter, 360 F.3d 591, 604 (6th Cir. 2004). I
would suppress and therefore I dissent.
14 United States v. Carter No. 01-5338
_______________
DISSENT
_______________
KAREN NELSON MOORE, Circuit Judge, dissenting. I
join fully in Judge Martin’s persuasive dissent. I separately
and respectfully dissent from the majority because the
government has failed to prove by a preponderance of the
evidence that Sean Carter (“Carter”) “unequivocally”
consented to the police officers’ entry into his hotel room. I
concur neither with the majority’s quiet adoption of a
principle that implied consent will suffice to justify a
warrantless entry nor with its application of this standard to
the entry of Carter’s hotel room. Such a holding
unnecessarily upends the precedent of this circuit in a manner
that contradicts the law established by the United States
Supreme Court.
One must begin with the constitutional imperative against
warrantless entries ensconced in the Fourth Amendment.
Because “[t]he right of the people to be secure . . . against
unreasonable searches and seizures[] shall not be violated,”
U.S. Const. Amend. IV, warrantless searches and seizures are
“presumptively unreasonable.” Payton v. New York, 445 U.S.
573, 586 (1980); see United States v. Haddix, 239 F.3d 766,
767 (6th Cir. 2001) (“As a practical matter, [the Fourth
Amendment] normally requires the police to have a warrant
whenever their conduct compromises an individual’s privacy
in his or her personal affairs.”). “[P]hysical entry of the home
is the chief evil against which the wording of the Fourth
Amendment is directed.” Payton, 445 U.S. at 585 (quotation
and citation omitted). Nonetheless, consent is “one of the
specifically established exceptions to the requirements of both
a warrant and probable cause.” Schneckloth v. Bustamonte,
412 U.S. 218, 219 (1973). Given that the consent exception
is “jealously and carefully drawn,” Jones v. United States,
357 U.S. 493, 499 (1958), it is no surprise that, “[w]hen a
prosecutor seeks to rely upon consent to justify the lawfulness

-- 7 of 11 --

No. 01-5338 United States v. Carter 15
1The test for consent established in Bumper v. North Carolina, 391
U.S. 543 (1968), is certainly germ ane he re. The Suprem e Co urt in
Bumper established a general test that when a prosecutor relies on consent
to justify a search, the burden to pro ve that such consent was 1) actually
given and 2 ) freely and voluntarily given “cannot be discharged by
showing no more than acquiescence to a claim of lawful authority.” Id.
at 548-49. That Bum per dealt primarily with the sec ond part of the
inquiry — whether consent was voluntary when law enforcement officers
asserted that they possessed a warrant— do es not negate the applicability
of the Supreme Court’s general statement about acquiescence to cases
assessing the threshold question of whether consent was even given in the
first place.
2There is a distinction between consent to entry and consent to search
in the sense that when a de fendant consents to the entry of police officers,
he or she does not automatically consent to a search. See United States
v. Ivy, 165 F.3d 39 7, 401-04 (6th Cir. 1998) (analyzing first whether
consent to entry was given before assessing whether consent to search was
given and was voluntary). We apply the same standards for consent when
analyzing either issue. Id. at 401-02.
of a search, he has the burden of proving that the consent was,
in fact, freely and voluntarily given.” Bumper v. North
Carolina, 391 U.S. 543, 548 (1968) (emphasis added). “This
burden cannot be discharged by showing no more than
acquiescence to a claim of lawful authority.” Id. at 548-549
(emphasis added).1 The strong aversion to warrantless entries
has led us to hold that “not any type of consent will suffice,
but instead, only consent that is ‘unequivocally, specifically,
and intelligently given, uncontaminated by any duress and
coercion.’” United States v. Worley, 193 F.3d 380, 386 (6th
Cir. 1999) (quoting United States v. Tillman, 963 F.2d 137,
143 (6th Cir. 1992)).2
Applying the above principles, I am left with the definite
and firm conviction that the district court reached the wrong
result because the government failed to prove by a
preponderance of the evidence that Carter consented to the
officers’ entry. We have never previously established that
implied consent justifies an otherwise illegal warrantless
entry. As even the majority recognizes, “acquiescence” is
16 United States v. Carter No. 01-5338
synonymous with “implied consent,” Maj. Op. at 7 (citing
Black’s Law Dictionary 23 (7th ed. 1999)), and it is well-
settled that acquiescence to authority is not enough to
demonstrate consent. Bumper, 391 U.S. at 548-49.
Consequently, we have required that consent be unequivocal,
specific, and intelligent. United States v. Haynes, 301 F.3d
669, 682 (6th Cir. 2002); Worley, 193 F.3d at 386; Tillman,
963 F.2d at 143. We have not been alone. See United States
v. Gonzalez, 71 F.3d 819, 830 (11th Cir. 1996); United States
v. Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1989). This is not to
say that unequivocal consent need always be verbally given
or formally delivered. A nod, a terse “okay” in response to a
request to enter, or a hand gesture, may constitute
unequivocal consent depending on the particular
circumstances.
Carter took no such action, however, and his recession into
the room did not signal an unequivocal consent to a
warrantless entry. The police knocked loudly four times,
identifying themselves the first two times as housekeeping
staff. Joint Appendix (“J.A.”) at 74 (Det. Hart Test.). When
Carter opened the door, he saw three police officers, two
wearing “POLICE” vests and one in full uniform. The
officers identified themselves and asked to enter. Detective
Hart (“Hart”) testified that Carter “moved away from the door
and backed up,” J.A. at 76, but Hart never stated that Carter
“cleared a path for the officers to enter,” as the majority
depicts. Maj. Op. at 2. Furthermore, Hart made clear that
regardless of whether Carter gave consent, the officers
planned to enter the hotel room and seize the “blunt” once
they had smelled the marijuana. J.A. at 79.
The only possible signal of consent is Carter’s act of
stepping back into the hotel room. Carter did not say
anything while he retreated, such as “okay” or “fine,” after the
police asked to enter the room. See United States v. Garcia,
997 F.2d 1273, 1281 (9th Cir. 1993) (holding that consent
existed when defendant said “okay,” nodded, and stepped
back in response to officers’ request to enter). Carter did not

-- 8 of 11 --

No. 01-5338 United States v. Carter 17
nod or gesture so as to indicate an affirmative response to
their request. Moreover, this is not a situation in which Carter
refused entry to the officers on one occasion but then stepped
back after the officers made a second request to enter, such
that his silence on the second attempt could constitute consent
in juxtaposition with his first response. See United States v.
Griffin, 530 F.2d 739, 743 (7th Cir. 1976) (holding that when
defendant had first responded “no” to a request to enter,
slamming his door in the officers’ faces, but then had stepped
back and left his door open without explicitly refusing to
grant entry after the officers repeated the request several
minutes later, the defendant’s actions constituted consent
because of the disparity between the defendant’s two different
reactions). Instead, Carter simply stepped back and did not
say a word to the officers, one of whom testified that he
would have entered the room to seize the blunt no matter
Carter’s response. Cf. United States v. Albrektsen, 151 F.3d
951, 955 (9th Cir. 1998) (ruling that defendant did not
consent when both the officers and the defendant recalled that
“entry was going to made with or without permission,” and
the defendant stepped back from the door because he felt that
he would have been knocked down if he did not move).
Carter’s response cannot be considered consent; there was
no affirmative act, let alone an unequivocal one. Carter’s
reaction to the officers’ request can only be considered
acquiescent behavior, which the Supreme Court has
distinguished from valid consent. I cannot accept the
majority’s characterization of Carter’s citation to established
Supreme Court precedent as a “verbal quibble” that is
“bootless.” Maj. Op. at 7. A focus on the word
“acquiescence” is entirely proper because the Supreme Court
has explicitly held that acquiescence to a claim of lawful
authority, whether overpowering or not, is not sufficient to
satisfy the government’s burden to prove consent. Bumper,
391 U.S. at 548-49. Furthermore, it is not only Carter who
focuses on the term “acquiescence”; in ruling that Carter
consented to the entry, the district court held that Carter’s
motion of stepping back “indicates to the Court that there was
18 United States v. Carter No. 01-5338
at least acquiescence.” J.A. at 82. The district court’s belief
that acquiescence is enough highlights its error. Because the
Supreme Court has ruled that acquiescence does not equal
consent, the district court clearly erred by holding that the
officers were justified in entering the room on the basis that
“there was at least acquiescence.”
Without more, the government has failed to meet its burden
of proving consent. The inability to demonstrate consent
precludes the need to assess whether such consent was
voluntary. Without voluntary consent, the warrantless entry
and search of Carter’s room was illegal, and the fruits of that
search are tainted. Accordingly, I would reverse the district
court.

-- 9 of 11 --

No. 01-5338 United States v. Carter 19
________________
DISSENT
________________
RONALD LEE GILMAN, Circuit Judge, dissenting.
Although I agree with the conclusion of the majority
regarding Carter’s implied consent to the entry by the police
officers, I share Judge Martin’s view that the seizure of the
blunt in Carter’s hotel room cannot be justified under the
“plain view” exception to the prohibition against a
warrantless search. The very fact that the majority opinion of
Chief Judge Boggs and the dissenting opinions of Judges
Martin and Moore can persuasively reach opposite
conclusions about whether Carter gave implied consent to the
officers’ entry demonstrates to me that the district court’s
finding of consent was not “clearly erroneous.” As the
majority points out, it is well-settled that “[w]here there are
two permissible views of the evidence, the district court’s
conclusions cannot be clearly erroneous.” United States v.
Worley, 193 F.3d 380, 384 (6th Cir. 1999) (quoting Anderson
v. City of Bessemer City, 470 U.S. 564, 573 (1985)). Because
“[i]t is not enough that this Court might give the facts another
construction [or] resolve the ambiguities differently. . . ,”
West v. Fred Wright Constr. Co., 756 F.2d 31, 34 (6th Cir.
1985), I believe that we should give deference to the
conclusion of the district court regarding Carter’s consent to
entry by the police.
I also agree with the majority that the holding in Bumper v.
North Carolina, 391 U.S. 543 (1968), is not applicable to the
case before us. Judge Moore’s dissent emphasizes that, in
light of Bumper, the government’s burden to show that
consent was freely and voluntarily given “cannot be
discharged by showing no more than acquiescence to a claim
of lawful authority.” Id. at 548-49. But Bumper dealt with
the defendant’s grandmother who, informed by police officers
that they possessed a valid search warrant for her home,
allowed them to come in. The critical point to take from
20 United States v. Carter No. 01-5338
Bumper is that “[w]hen a law enforcement officer claims
authority to search a home under a warrant, he announces in
effect that the occupant has no right to resist the search. The
situation is instinct with coercion . . . . Where there is
coercion there cannot be consent.” Id. at 548. In the present
case, as the majority correctly observes, the police officers
“made no such overpowering claim of authority.” I am
therefore of the opinion that Judge Moore’s reliance on
Bumper’s language, completely divorced from its factual
context, is misplaced as applied to the facts before us.
Despite my agreement with the above portions of the
majority opinion, I am persuaded that the seizure of the blunt
from Carter’s hotel room cannot be justified under the “plain
view” exception for all of the reasons set forth in Judge
Martin’s dissent. The majority, in reaching the opposite
conclusion, relies on United States v. Calloway, 116 F.3d
1129, 1133 (6th Cir. 1997), to support its argument that the
plain view exception applies because “the blunt was in plain
view; there was probable cause to consider it incriminating on
its face; Hart was lawfully in position to see it; and Hart had
a lawful right of access to the item.” I respectfully disagree
that the facts of this case satisfy the Calloway factors. In
particular, I do not believe that there was probable cause to
consider the blunt “incriminating on its face” or that Hart had
a “lawful right of access to the item.”
The most relevant case on point, in fact, is not Calloway,
but United States v. McLevain, 310 F.3d 434 (6th Cir. 2002).
McLevain is mistakenly relied on by the majority for the
proposition that the blunt in question was immediately
incriminating. But the actual facts in McLevain involved a
narcotics detective who seized certain items—a cut cigarette
filter, a prescription bottle with fluid, a spoon, and a twist
tie—that were, in his experience, commonly associated with
the use of methamphetamine. Yet this court held that “[t]he
connection between these items and illegal activities . . . is not
enough to render these items intrinsically incriminating.” Id.
at 442 (emphasis added).

-- 10 of 11 --

No. 01-5338 United States v. Carter 21
In view of the ruling that the McLevain facts were
insufficient to satisfy the “plain view” exception to the
prohibition against a warrantless search, how can the object
that Hart conceded looked like a regular cigar from where he
initially stood be considered “incriminating on its face”?
There is no way. I would therefore suppress the seizure of the
blunt and thus REVERSE the judgment of the district court.

-- 11 of 11 --