United States of America v.  Kenzie Hylton

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4664 
KENZIE HYLTON,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland at Baltimore.
William M. Nickerson, Senior District Judge.
(CR-01-274-WMN)
Argued: September 26, 2003
Decided: November 19, 2003
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Luttig and Judge Motz joined.
COUNSEL
ARGUED: Kelli Colleen McTaggart, Assistant Federal Public
Defender, Greenbelt, Maryland, for Appellant. Donna Carol Sanger,
Assistant United States Attorney, Greenbelt, Maryland, for Appellee.
ON BRIEF: James Wyda, Federal Public Defender, Denise Barrett,
Assistant Federal Public Defender, Greenbelt, Maryland, for Appel-
lant. Thomas M. DiBiagio, United States Attorney, Greenbelt, Mary-
land, for Appellee.

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OPINION
NIEMEYER, Circuit Judge:
Kenzie Hylton was convicted of possession of a firearm by a con-
victed felon, in violation of 18 U.S.C. § 922(g), and sentenced to 210
months’ imprisonment. On appeal he challenges his conviction, con-
tending (1) that the firearm was seized pursuant to a warrantless
search of his girlfriend’s apartment where he was living, in violation
of the Fourth Amendment; (2) that his later statement admitting pos-
session of the firearm was obtained without the benefit of counsel at
a time when his Sixth Amendment right to counsel had attached; and
(3) that the district court’s Allen charge to a deadlocked jury improp-
erly coerced the jury to reach a verdict. For the reasons that follow,
we affirm.
I
On April 23, 2001, following an argument between Kenzie Hylton
and his girlfriend Hawanya Harper, Harper called the Prince George’s
County police for assistance, telling the police that Hylton was in her
apartment with a gun and that he would not let her in. After police
officers arrived, Harper told them that she and Hylton had had an
argument and that Hylton had refused to let her into the apartment.
She also told the officers that a gun was located "under the bed" or
"under the mattress" in the bedroom that she and Hylton shared.
Although Harper was the leaseholder of the apartment, she told offi-
cers that Hylton was a live-in boyfriend and the father of one of her
children. She told the officers that two of her children were either in
the apartment or at a neighbor’s house. During her conversations with
the officers, she also related how Hylton had raped her the previous
week, using the gun to facilitate the rape.
The officers tried to call Hylton by telephone, but he refused to
answer. They also determined through the police dispatcher that he
was the subject of three outstanding minor traffic warrants for his
arrest. After about 40 minutes, Hylton answered the telephone and
surrendered to the police outside of the apartment, where he was
placed under arrest on the three outstanding warrants.
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The officers then entered the apartment and conducted a protective
sweep to "secure it" and to retrieve the gun described by Harper. The
officers found a loaded .38 caliber gun between the mattress and the
box spring of the bed identified by Harper.
After processing Hylton’s arrest under the warrants and learning
that Hylton had been convicted previously of a felony, the officers
filed a "statement of charges" in the District Court of Maryland for
Prince George’s County, charging Hylton with possession of a fire-
arm by a convicted felon, in violation of Maryland Code, Article 27,
§ 445(d) (1996) (current version at Md. Code Ann., Pub. Safety § 5-
133(c) (2003)). After Hylton appeared before a judicial officer, he
was released.
Two days later, on April 25, 2001, Harper called the police again
to relate that Hylton had made telephone calls in which he threatened
to kill her. Prince George’s County police officers again arrested Hyl-
ton, this time pursuant to a warrant issued for witness intimidation
and harassment. After signing a form advising him of his Miranda
rights, Hylton signed a written waiver of those rights, indicating that
he wished to talk to police without a lawyer. During the ensuing inter-
rogation, Hylton signed a statement that he had possessed the .38 cali-
ber gun that had been seized from Harper’s apartment two days
earlier.
Hylton was indicted by a federal grand jury on May 14, 2001,
charging him with possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g). He responded, filing motions to sup-
press (1) the .38 caliber gun seized on April 23 from Harper’s apart-
ment and (2) the statement he gave two days later admitting
possession of the gun. The district court denied both motions, and the
case proceeded to trial. When the jury announced that they were
unable to reach a unanimous decision, the court gave the jury an
"Allen charge," requesting them to make another effort to reach a
unanimous verdict so long as the verdict represented the conscien-
tious judgment of each juror. After 15 minutes of additional delibera-
tions, the jury returned a guilty verdict. The district court sentenced
Hylton to 210 months’ imprisonment.
This appeal followed.
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II
Hylton contends first that the district court erred in denying his
motion to suppress the gun seized on April 23, 2001, pursuant to a
search of the apartment in which he and Harper lived.
In ruling on the motion, the district court rejected the government’s
argument that Harper had consented to the search of her apartment:
I do not conclude that there was consent. There is no testi-
mony that there was any express consent from Ms. Harper
or even an attempt to get consent from her, nor do I find
there circumstances analogous to those in which there can
be implied consent. The call was I can’t get into my apart-
ment, not anything beyond that. I simply don’t find this suf-
ficient to indicate that Ms. Harper had impliedly consented
to the entry.
The district court, however, agreed with the government’s alternative
arguments. The court concluded that the entry into the apartment and
seizure of the gun were proper in that (1) after Hylton’s arrest, the
officers were entitled to conduct a protective sweep of the apartment
without a warrant, under Maryland v. Buie, 494 U.S. 325 (1990), and
(2) because the officers were confronted by exigent circumstances
created by the presence of the gun and risk of danger to Harper and
her children, they were entitled to conduct a warrantless search, see
Minnesota v. Olson, 495 U.S. 91, 100 (1990).
On appeal, Hylton contends that neither ground relied on by the
court is supported by the circumstances in this case. He argues:
It is undisputed that officers had no indication, let alone evi-
dence, that anyone dangerous was hiding in the apartment
after officers arrested Mr. Hylton outside his apartment. Nor
did they have any indication that the children were in dan-
ger. Although the officers may have been permitted to enter
the apartment to look for the children, they exceeded the
scope of that warrantless search when the search continued
after police determined that no one was in the apartment.
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The officers also exceeded the scope of a protective sweep
when they searched the bed not for a person, but for a gun,
and seized the gun although it was not in plain view.
The government contends that the district court did not err in denying
the motion to suppress, and as additional grounds for affirmance, it
continues to argue that "Harper gave implied consent to enter and
recover the firearm by summoning police to her apartment and pro-
viding them with the precise location of the firearm."
Although we review the district court’s finding of facts for clear
error, we review whether those facts satisfy the constitutional stan-
dard de novo. See United States v. Gwinn, 219 F.3d 326, 331 (4th Cir.
2000).
The Fourth Amendment protects "the people" against "unreason-
able searches and seizures," U.S. Const. amend. IV, and even though
reasonableness generally requires that searches or seizures be con-
ducted pursuant to a warrant, a warrantless search may be reasonable
if it falls within "one of the narrow and well-delineated exceptions to
the warrant requirement." Flippo v. West Virginia, 528 U.S. 11, 13
(1999) (citing Katz v. United States, 389 U.S. 346, 357 (1967)). One
"well-recognized" exception is valid consent. Trulock v. Freeh, 275
F.3d 391, 401 (4th Cir. 2001) (citing Schneckloth v. Bustamonte, 412
U.S. 218 (1973)). Moreover, valid consent may be given by any one
of the co-habitants of a premises, even though no other co-habitant
has consented. This principle follows from the rationale that co-
habitants have joint access or control for most purposes and therefore
have the right to permit the inspection as their own right — each co-
inhabitant has "assumed the risk that one of their number might per-
mit the common area to be searched." United States v. Matlock, 415
U.S. 164, 171 n.7 (1974).
In this case, we assume for purposes of discussion that Hylton and
Harper co-inhabited the apartment that Harper leased.* When Hylton
stayed in the apartment, he shared the bedroom and bed with Harper.
*Harper testified, however, that the lease for the apartment was in her
name. She also testified that because this was "Section 8" housing, Hyl-
ton "wasn’t supposed to be living there."
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Accordingly, there can be no doubt that Harper had authority to con-
sent to a search of both the apartment and the bedroom in which she
slept. This factual circumstance is to be distinguished from a situation
where one co-habitant has an exclusive and private area within the
jointly occupied premises justifying the exclusion of others, such as
a locked foot locker. See United States v. Block, 590 F.2d 535, 541
(4th Cir. 1978).
While Harper therefore had authority to give consent to a search of
her apartment and bedroom, the district court found that Harper never
gave the police express consent for such a search. The district court
also concluded that the words and actions of Harper did not support
the conclusion that she impliedly consented to the search of her apart-
ment and bedroom. We disagree with this legal conclusion that the
record does not show implied consent.
Consent may be inferred from actions as well as words. See, e.g.,
United States v. Wilson, 895 F.2d 168, 170 (4th Cir. 1990) (finding
consent where defendant raised his arms after agent asked permission
to pat him down); United States v. Wesela, 223 F.3d 656, 661 (7th
Cir. 2000) ("The fact that there was no direct verbal exchange
between [the officer and the third party] in which [the third party]
explicitly said ‘it’s o.k. with me for you to search the apartment’ is
immaterial, as the events indicate her implicit consent"); United
States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir. 1981) ("[I]t is
well settled that consent may be inferred from an individual’s words,
gestures, or conduct").
In this case, the circumstances and Harper’s words lead to the
inference that she gave consent to the police to search her apartment
and thereby to enable her to return to the apartment in safety. And to
this end it can be inferred that she authorized officers to retrieve the
gun that had put her at risk. Harper called Prince George’s County
police for assistance following her dispute with Hylton, telling the
officers that Hylton "would not let her in their apartment." More
explicitly, she told officers that she "wanted to get into the house."
Testifying about what she told police, Harper said,
I told [the officers] my boyfriend was in the house. He
wouldn’t leave out. I was scared to go into the house, and
I want to go in the house.
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Harper also advised officers of the specific circumstances inside the
apartment, telling them that there was a gun in the apartment that Hyl-
ton had used only a week earlier to facilitate raping her. She told them
that her two children might be in the apartment. Finally, she told them
specifically that the gun was located in the bedroom where she and
Hylton slept — "under the bed," "under the mattress."
From these words and the circumstances that confronted the police,
it could be inferred that Harper gave the police authority to enter Har-
per’s apartment and retrieve the gun that caused her fear and appre-
hension. In the given circumstances, there would be virtually no other
reason for her calling the police and giving them the details of what
existed in the apartment. When a tenant is barred from entering her
apartment and calls the police for assistance, it can be inferred that
she is authorizing them to enter the apartment; when a tenant
expresses fear about a dangerous condition in her apartment and calls
the police for assistance, it can be inferred that she is authorizing
them to diffuse the dangerous condition; and when a tenant calls
police for assistance, stating that she is barred from her apartment,
expressing fear about the presence of a gun, and describing precisely
where the gun is located, it can be inferred that she is authorizing the
police to enter the apartment and retrieve the gun. Indeed, any tenant
in these circumstances would rightfully be critical of police if they
hesitated to assist her by diffusing a dangerous condition in her own
apartment. She would rightfully have asserted, "This is my apartment;
there is a man in my apartment who has a gun; and my children may
be in there. Do something now."
In sum, we conclude that the undisputed facts in this case support
the inference that Harper gave consent to the Prince George’s County
police to enter her apartment and to retrieve the firearm about which
she complained. And because we have found implied consent, we
need not address the alternative theories applied by the district court
to justify the warrantless search, i.e., that the police were entitled to
conduct a protective sweep and that their search was justified by exi-
gent circumstances.
III
Hylton next contends that his April 25 statement in which he
admitted possession of the gun that was seized on April 23 was
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obtained in violation of his Sixth Amendment right to counsel and
therefore should have been suppressed by the district court. Hylton
argues that his right to counsel attached on April 23, when a statement
of charges was filed against him in State district court, and that the
waiver of his Miranda rights on April 25 during a police-initiated
interview did not amount to a waiver of his right to counsel to assist
him in all adversary judicial proceedings.
The Sixth Amendment right to counsel attaches at the initiation of
"adversary judicial proceedings," Kirby v. Illinois, 406 U.S. 682, 688
(1972) — at the first formal charging proceeding, Moran v. Burbine,
475 U.S. 412, 428 (1986) — after which the right applies at all critical
stages of the criminal proceedings, United States v. Henry, 447 U.S.
264, 269 (1980).
In this case, "adversary judicial proceedings" for the prosecution of
the felony offense of possession of a firearm by a convicted felon had
not been initiated as of April 25 when Hylton gave his statement.
Even though Hylton points to the statement of charges filed on April
23 to argue that such proceedings had indeed been initiated two days
earlier, the statement of charges filed in the Maryland District Court
on April 23 did not commence formal prosecutorial proceedings to
which the Sixth Amendment right of counsel attached. Cf. State v.
Gee, 471 A.2d 712, 716 (Md. 1984) ("[W]hen the defendant cannot
be tried under the warrant-statement of charges [because of a lack of
jurisdiction] he is not held to answer a criminal charge on the basis
of that document [and] [i]ts issuance does not mark the onset of for-
mal prosecutorial proceedings to which the Sixth Amendment guaran-
tee [of a speedy trial] is applicable"). Although Maryland law permits
an offense to be tried in the Maryland District Court on a statement
of charges, Md. Rule 4-201(b), the Maryland District Court does not
have jurisdiction over felony charges, other than certain felonies not
relevant to this case, see Md. Code Ann., Cts. & Jud. Proc. § 4-
302(a). Hylton would have had to be tried in circuit court, but he
could be tried in circuit court only on an indictment or information,
not on a statement of charges. See Md. Rule 4-201(c).
Thus, on April 25, when Hylton gave a statement in which he
admitted to possession of the gun, an adversary judicial proceeding
against him had not yet been initiated. A grand jury did not indict
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Hylton for the charges of possession of a firearm by a convicted felon
until a federal grand jury indicted him in this case on May 14, 2001.
The district court thus properly denied Hylton’s motion to suppress
the statement.
IV
Finally, Hylton contends that the district court’s Allen charge to the
deadlocked jury was "coercive" because "it improperly and unduly
emphasized the cost and expense of a retrial." We review a district
court’s decision to give an Allen charge and its content for abuse of
discretion. United States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995).
The traditional, "pure" Allen charge, based on Allen v. United
States, 164 U.S. 492 (1896), was an instruction to a deadlocked jury
that addressed only jurors in the minority, asking them to consider
whether the jurors in the majority were correct. To be less coercive
with respect to jurors in the minority, we have "strongly recom-
mended" that any Allen charge address all jurors, both in the minority
and in the majority, "to give equal consideration to each other’s
views." Burgos, 55 F.3d at 937 (quoting United States v. West, 877
F.2d 281, 291 (4th Cir. 1989)). Thus, the principal concern that we
have had with Allen charges is to ensure that they apply pressure to
the jury in a way that preserves all jurors’ independent judgments and
that they do so in a balanced manner.
Although we have indicated disfavor when a court giving an Allen
charge focuses on the costs of a retrial, we have not considered this
aspect unduly coercive if it is given in the context of an otherwise bal-
anced charge. See Burgos, 55 F.3d at 938 n.5; West, 877 F.2d at 291.
In this case, the district court’s Allen charge was balanced, instruct-
ing both jurors in the minority and jurors in the majority that they
"should seriously consider the arguments and the opinions of the juror
or jurors on the other side." The district court also instructed the
jurors that "obviously it’s desirable that a verdict be reached, but that
verdict has to represent the conscientious judgment of each of you"
and that "no juror should vote for a verdict unless that’s a verdict that
ultimately represents his or her conscientious judgment." Against this
proper and balanced instruction, the district court also made a brief
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reference to the costs of a retrial. While disfavored, this addition was
not in the overall context unduly coercive. And the fact that the jury
reached a verdict shortly after the Allen charge was given does not
indicate that it was.
Finding no reversible error, we affirm the judgment of the district
court.
AFFIRMED
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