United States of America v. Terry L. Sabo

The Honorable Sara Darrow of the United States District å
Court for the Central District of Illinois, sitting by designation.
In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2700
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRY L. SABO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:10-cr-21—Theresa L. Springmann, Judge.
ARGUED DECEMBER 5, 2012—DECIDED JULY 31, 2013
Before MANION and SYKES, Circuit Judges, and DARROW,
District Judge.å
DARROW, District Judge. The only question presented
in this appeal is whether Terry Sabo consented to a
search of his residence. We find that his nonverbal
actions manifested consent and affirm.

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2 No. 12-2700
I. Background
In January 2010, two Deputy U.S. Marshals knocked
on Terry Sabo’s trailer door hoping to locate a fugitive,
Sabo’s stepson. When Sabo opened the door, both
deputies immediately noticed a strong odor of marijuana
and heard voices coming from inside the trailer. Sabo
acknowledged that his children were inside but denied
that his stepson was there. The deputies asked Sabo
if he was “smoking dope” with his children in the
trailer, to which Sabo responded, “Get the fuck out of
here.” With that expletive, Sabo slammed the door
shut. The deputies backed away from the trailer,
moved their car out of sight, and called the local
Sheriff’s office for assistance. Detective Donald
McCune—who knew Sabo—was among the officers
that arrived.
McCune knocked on the trailer door and said, “Terry,
it’s the Sheriff’s Department. Open the door.” Sabo
opened the door and stood in the doorway, physically
blocking McCune’s entry. McCune asked, “Terry, do you
mind if I step inside and talk with you?” Sabo said noth-
ing. Instead, he stepped back and to the side and let the
door open. The conversation was casual and McCune did
not force his way into the trailer.
Upon Sabo yielding the right of way, McCune entered
the trailer and immediately noticed the same odor of
marijuana and saw several guns leaning against a
wall. Knowing that Sabo was a convicted felon, McCune
had him sit on the couch while the guns were secured.
McCune’s fellow officers swept the trailer looking for

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No. 12-2700 3
the fugitive but found only Sabo’s wife and children.
McCune obtained a search warrant and seized mari-
juana in the subsequent search.
A federal grand jury indicted Sabo for the following
offenses: (1) possession with the intent to distribute a
controlled substance, (2) possession of a firearm in
the furtherance of a drug trafficking crime, and (3) being
a convicted felon in possession of a firearm. Sabo
filed a motion to suppress the evidence, which the
district court denied after an evidentiary hearing. He
conditionally pleaded guilty to Counts 1 and 2 and re-
served his right to appeal the district court’s denial of
his motion to suppress.
II. Discussion
Sabo argues that by entering his trailer without
consent, McCune violated his Fourth Amendment right
to be secure in his home against unreasonable searches.
The Court carefully examines the bases for a govern-
ment entry into the home because unjustified entry is
the “chief evil” against which the Fourth Amendment
is directed. Payton v. New York, 445 U.S. 573, 585 (1980).
In these cases the Court presumes that a warrantless
search of a home is unreasonable. Id. at 586. But in
this case we can move quickly to the well-established
exception to both the warrant and the probable
cause requirements of the Fourth Amendment: consent.
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
Consent can come in many forms, but it must always
be given voluntarily. United States v. Griffin, 530 F.2d 739,

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742 (7th Cir. 1976). As the district court noted, Sabo
does not challenge McCune’s entry on the grounds that
Sabo’s nonverbal response was involuntary, nor does
he offer any evidence of duress or coercion. Rather,
Sabo only argues that he never consented to McCune
entering his residence. As such, the crux of this appeal
is whether Sabo’s nonverbal response constituted
implied consent for McCune to enter Sabo’s residence.
Whether Sabo impliedly consented to McCune’s entry
is a question of fact to be determined under the totality
of the circumstances, and the trial court’s determination
will be reversed only if it is clearly erroneous. See
United States v. Risner, 593 F.3d 692, 694 (7th Cir. 2010)
(internal citations omitted); Griffin, 530 F.3d at 742.
Implied consent may be manifested verbally or
nonverbally. See Harney v. City of Chi., 702 F.3d 916, 925
(7th Cir. 2012). To be sure, one does not consent to
the government entering his home by simply answering
the door. Hadley v. Williams, 368 F.3d 747, 750 (7th Cir.
2004). Here, however, Sabo did not simply answer the
door. He stepped back and to the side so that McCune
could enter. What is more, Sabo’s actions came in direct
response to McCune’s request to enter. In other words,
McCune asked and Sabo answered, albeit nonverbally.
We have recently noted that “this court, on more than
one occasion, has found that the act of opening a door
and stepping back to allow entry is sufficient to demon-
strate consent.” Harney, 702 F.3d at 925 (citing United
States v. Walls, 225 F.3d 858, 862-63 (7th Cir. 2000) and
Sparing v. Vill. of Olympia Fields, 266 F.3d 684, 690 (7th
Cir. 2001)). We make the same finding here—Sabo’s

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No. 12-2700 5
nonverbal cue manifested his implied consent for McCune
to enter.
For the foregoing reasons, we AFFIRM the judgment of
the district court.
7-31-13

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