Report and Recommendation — United States v. Dwayne Antonio Jackson (N.D. Ga., January 6, 2016)

Summary

This is a Report and Recommendation filed January 6, 2016, in the United States District Court for the Northern District of Georgia, Atlanta Division, in United States v. Dwayne Antonio Jackson, case 1:15-CR-244-LMM-CMS. It addresses the defendant's Motion to Suppress Evidence (Doc. 18), with an evidentiary hearing on October 14, 2015. It states that Sergeant Christopher Morris of the McDonough Police Department, without a warrant, entered an apartment belonging to the defendant's aunt Vanessa Jackson after Dusty Matheny introduced him as her cousin, and retrieved a gun from under the mattress. Magistrate Judge Catherine M. Salinas finds the officers could not have reasonably believed Ms. Matheny had common authority to consent and recommends that the motion be GRANTED.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Report and Recommendation — United States v. Dwayne Antonio Jackson (N.D. Ga., January 6, 2016).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-15-cr-00244-dkt-25-n-d-ga-04597d42bd/, SHA-256 6f7e6ca73acaa6cf41ad4d0309fafcb6a642f528bc8adb732c666b573ffe6626.

Full text

Case 1:15-cr-00244-LMM-CMS Document 25 Filed 01/06/16 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,
CRIMINAL ACTION NO.
v.
1:15-CR-244-LMM-CMS
DWAYNE ANTONIO JACKSON,

Defendant.

REPORT AND RECOMMENDATION

This case is before the Court on Defendant Dwayne Antonio Jackson’s

Motion to Suppress Evidence. (Doc. 18). An evidentiary hearing on the Motion

was held before the undersigned Magistrate Judge on October 14, 2015, and

briefing was ordered. (Doc. 21, Transcript of Hearing). On November 12, 2015,

Defendant filed a Brief in Support of the Motion to Suppress Evidence. (Doc. 22).

The Government filed a Response in Opposition (Doc. 23), and Defendant Replied

(Doc. 24).

For the reasons discussed below, I RECOMMEND that Defendant’s

Motion to Suppress Evidence (Doc. 18) BE GRANTED.

I. FACTS

In the early hours of September 22, 2011, Sergeant Christopher Morris of

the McDonough Police Department was called to investigate a shooting in
Case 1:15-cr-00244-LMM-CMS Document 25 Filed 01/06/16 Page 2 of 15

McDonough, Georgia. (Tr. at 6). His investigation led him to be on the lookout

for a black male and a white female driving a white Chevrolet Impala. (Id. at 8).

Later that afternoon, at approximately 2:00 p.m., Sergeant Morris located a car and

occupants that fit the description. (Id. at 13). With the assistance of a marked

Clayton County patrol vehicle, law enforcement officers initiated a traffic stop of

the Impala. (Id. at 14-15). The vehicle’s occupants, who were later identified as

Defendant Dwayne Antonio Jackson and his girlfriend Dusty Matheny, were

placed under investigative detention and transported to the McDonough Police

Department for questioning. (Id. at 15-17).

Ms. Matheny was questioned separately from Defendant. During

questioning, Ms. Matheny indicated that she knew the location of the firearm

supposedly used in the earlier shooting. (Tr. at 33). She told Sergeant Morris that

the gun was under the mattress in a bedroom of an apartment where she and

Defendant had been staying for a few nights, and that the apartment belonged to

Defendant’s aunt, Vanessa Jackson.1 (Id. at 21-22, 45, 47). Ms. Matheny

1
At the evidentiary hearing, Ms. Matheny testified about her access to Ms.
Jackson’s apartment. Ms. Matheny testified that she did not have a key to Ms.
Jackson’s apartment and that in order to enter the apartment, Ms. Matheny would
knock on the door. (Tr. at 49-50, 64). Ms. Matheny testified that she never stayed
at Ms. Jackson’s apartment without Defendant and that neither she nor Defendant
paid rent to Ms. Jackson or received mail there. (Id. at 49-50, 51, 64). Ms.
2
Case 1:15-cr-00244-LMM-CMS Document 25 Filed 01/06/16 Page 3 of 15

volunteered that she could show law enforcement officers where the gun was

located. (Id. at 23, 52, 64). Ms. Matheny also offered to go into Ms. Jackson’s

apartment alone and retrieve the weapon, but the law enforcement officers rejected

this idea. (Id. at 24, 53). The officers also rejected the idea of obtaining a search

warrant. (Id. at 24). Sergeant Morris gave the following testimony regarding the

decision not to obtain a warrant:

We discussed several options, first and foremost being a search
warrant, but based on the fact that we had been up a number of hours
at that point as well as the fact that we still had some investigation to
do upon talking to [Defendant] and some follow up with him and the
expedience of the gun possibly – you know, we didn’t know what the
situation was about whether it could be moved or we didn’t want it to
get away so we didn’t want to take the time in order to get a search
warrant.

(Id.). Rather than obtain a warrant or allow Ms. Matheny to bring the weapon to

them, the officers developed a plan whereby Sergeant Morris would accompany

Ms. Matheny to Ms. Jackson’s home and pretend to be Ms. Matheny’s cousin in

order for Sergeant Morris to gain entry into Ms. Jackson’s apartment and retrieve

the gun. (Id. at 23-24, 54-55).

Jackson testified that Ms. Matheny was not permitted to stay at Ms. Jackson’s
apartment without Defendant, and that Ms. Matheny was not permitted “to come
and go as she pleased.” (Id. at 71).
3
Case 1:15-cr-00244-LMM-CMS Document 25 Filed 01/06/16 Page 4 of 15

That evening, Sergeant Morris, Ms. Matheny, and two other officers traveled

to Ms. Jackson’s apartment. (Tr. at 25-26). When they arrived, Sergeant Morris

and Ms. Matheny walked to the apartment door while the other officers stayed in

the car. (Id. at 26-27). Ms. Matheny knocked on the door and when Ms. Jackson

answered the door, Ms. Matheny introduced Sergeant Morris (who was wearing

plainclothes and did not display his badge or gun) as her cousin, stating that they

were there to retrieve personal items belonging to Ms. Matheny and Defendant.

(Id. at 27, 37-39, 69-70). Sergeant Morris was not, in fact, Ms. Matheny’s cousin;

this statement was a lie2 designed to gain entry into Ms. Jackson’s apartment by

deception. (Id. at 37-39).

Ms. Jackson, unaware that Morris was a law enforcement officer, allowed

them into her apartment. (Tr. at 39, 71). Ms. Matheny told Ms. Jackson that they

were there to get some of Defendant and Ms. Matheny’s clothing from the room

where she and Defendant had been staying. (Id. at 72-73). Once inside the

apartment, Ms. Matheny led Sergeant Morris to the room where she and Defendant

had been sleeping, pointed to the location of the gun, and then left to speak with

Ms. Jackson. (Id. at 28). Sergeant Morris entered the bedroom, “pushed the door

2
Although he admitted that he was not Ms. Matheny’s cousin and that what
they told Ms. Jackson was not the truth, Sergeant Morris objected to the word
“lie,” preferring instead the term “investigative technique.” (Tr. at 38).

4
Case 1:15-cr-00244-LMM-CMS Document 25 Filed 01/06/16 Page 5 of 15

closed just a little bit,” put on a latex glove, retrieved the gun, placed it into an

evidence bag that was concealed in his pocket, and then concealed the gun and

evidence bag in a bag of clothing. (Id. at 28, 56-58). Soon thereafter, the pair left

Ms. Jackson’s apartment and headed back to the McDonough police department.

(Id. at 30). They had been in Ms. Jackson’s apartment for less than five minutes.

(Id.).

It is undisputed that law enforcement did not have a warrant to enter Ms.

Jackson’s home. (Tr. at 36). It is also undisputed that there were no exigent

circumstances justifying a warrantless search. (Id. at 36-37; Doc. 23 at 5). There

was no evidence that anyone, other than Defendant and Ms. Matheny (who were

both detained by law enforcement) knew about the gun located in Ms. Jackson’s

apartment, and no evidence of a danger to the premises or risk that the gun would

be destroyed or concealed. (Id. at 37). Ms. Jackson testified that she did not know

that Sergeant Morris was a law enforcement officer, and if she had known that he

was, she would not have allowed him to enter her apartment without a warrant.

(Id. at 71-72).

II. DISCUSSION

Defendant argues that he had a reasonable expectation of privacy in the

room searched by law enforcement, that Ms. Matheny did not have the capacity to

5
Case 1:15-cr-00244-LMM-CMS Document 25 Filed 01/06/16 Page 6 of 15

consent to the search, and that Ms. Jackson did not provide knowing and voluntary

consent to Sergeant Morris’s search of the bedroom in Ms. Jackson’s apartment.

(Doc. 22, 24). As framed by the Government, the only issue for this Court to

resolve is whether police acted reasonably in relying on Ms. Matheny’s consent

when they conducted a warrantless search of the bedroom at Ms. Jackson’s

apartment and seized the gun from under the mattress. 3 (Doc. 23 at 1).

A. Legal Standard

The Fourth Amendment to the United States Constitution protects “the right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures” and ensures that judicial warrants for such

searches will not be issued “but upon probable cause.” U.S. Const. amend. IV.

Thus, “[t]he Fourth Amendment generally prohibits the warrantless entry of a

3
In its brief, the Government makes clear that the sole issue before the
Court is whether Ms. Matheny’s consent was sufficient to validate the warrantless
search:
[t]he Government is not arguing that Defendant’s aunt, Vanessa
Jackson, gave consent, that exigent circumstances existed, or that
Dusty Matheny was not acting on behalf of law enforcement. Nor is
the Government arguing that Defendant lacks standing. But Matheny
too had legitimate access and a reasonable expectation of privacy in
the bedroom she shared with the Defendant for those days in
September 2011. And the officers here reasonably believed that
Matheny was authorized to consent.
(Doc. 23 at 5).
6
Case 1:15-cr-00244-LMM-CMS Document 25 Filed 01/06/16 Page 7 of 15

person’s home, whether to make an arrest or to search for specific objects.” Ill. v.

Rodriguez, 497 U.S. 177, 181 (1990). It is a cardinal principle of United States

jurisprudence that “searches conducted outside the judicial process, without prior

approval by judge or magistrate, are per se unreasonable under the Fourth

Amendment – subject only to a few specifically established and well-delineated

exceptions.” Cal. v. Acevedo, 500 U.S. 565, 580 (1991); see U.S. v. Yeary, 740

F.3d 569, 579 (11th Cir. 2014) (“It is a basic principle of Fourth Amendment law

that searches and seizures inside a home without a warrant are presumptively

unreasonable.”). Where, as here, there is no dispute that the defendant had a

legitimate expectation of privacy in the area searched, the burden is on the

Government to prove that the search was reasonable based upon a recognized

exception to the warrant requirement. U.S. v. Bachner, 706 F.2d 1121, 1125-26

(11th Cir. 1983).

In this case, the relevant exception to the warrant requirement is consent.

“[T]he Fourth . . . Amendment[ ] require[s] that a consent not be coerced, by

explicit or implicit means, by implied threat or covert force. For, no matter how

subtly the coercion was applied, the resulting “consent” would be no more than a

pretext for the unjustified police intrusion against which the Fourth Amendment is

directed.” Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); see Yeary, 740

7
Case 1:15-cr-00244-LMM-CMS Document 25 Filed 01/06/16 Page 8 of 15

F.3d at 581-82. Whether consent is voluntary is a fact question determined

according to the totality of the circumstances. Johnston v. Tampa Sports Auth.,

530 F.3d 1320, 1326 (11th Cir. 2008). While the police do not have to inform an

individual of his right to refuse, the absence of such a warning is considered in the

totality of the circumstances analysis. See Bustamonte, 412 U.S. at 227; U.S. v.

Chemaly, 741 F.2d 1346, 1353 (11th Cir. 1984).

Moreover, the consent must be given by an individual possessing “common

authority” over the premises. Bates v. Harvey, 518 F.3d 1233, 1244 (11th Cir.

2008) (citing Rodriguez, 497 U.S. at 181). Common authority rests on mutual use

of the property by persons generally having joint access or control for most

purposes. U.S. v. Matlock, 415 U.S. 164, 170 (1974) (holding that the consent of

one co-occupant to conduct a warrantless search of a home was sufficient to give

the police the power to search despite the objection of an absent, non-consenting

co-occupant); Rodriguez, 497 U.S. at 181 (holding that a warrantless search was

valid where, at the time of entry, the police reasonably believed that a consenting

third party possessed common authority over the premises, but the third party did

not, in fact, possess such authority). “[A] warrantless entry is valid when it is

based upon the consent of a third party whom the police, at the time of entry,

reasonably believed possessed authority over the premises.” U.S. v. Mercer, 541

8
Case 1:15-cr-00244-LMM-CMS Document 25 Filed 01/06/16 Page 9 of 15

F.3d 1070, 1074 (11th Cir. 2008). The “ultimate touchstone of the Fourth

Amendment is reasonableness.” Brigham City, Utah v. Stuart, 547 U.S. 398, 403

(2006) (internal citation and quotation omitted).

In its 2006 opinion in Georgia v. Randolph, the United States Supreme

Court made clear that if a search is conducted over the objection of a physically

present co-occupant, the search is unconstitutional; the cooperating tenant’s

permission does not suffice for a reasonable search in the face of such an objection.

547 U.S. 103, 120 (2006). Thus, a warrantless search of a shared dwelling, such as

the apartment at issue in this case, over the express refusal of consent by a

physically present resident “cannot be justified as reasonable as to [that resident],

on the basis of consent given to the police by another resident.” Id.; see Fernandez

v. Cal., __ U.S. __, 134 S.Ct. 1126, 1134-37 (2014). Moreover, “police may not

rely on a third party’s consent to intentionally bypass a person who is present, has

a superior privacy interest in the premises, and actively objects to the search.”

U.S. v. Esparza, 162 F.3d 978, 980 (8th Cir. 1998).

B. Analysis

Here, it is undisputed that Ms. Jackson was present at the time of the search

and that Ms. Jackson did not consent to the search. (Doc. 23 at 5). The

Government argues only that the officers reasonably believed that Ms. Matheny

9
Case 1:15-cr-00244-LMM-CMS Document 25 Filed 01/06/16 Page 10 of 15

had legitimate access and a reasonable expectation of privacy in the bedroom she

shared with Defendant. (Id.)

Based on the facts known to the officers at the time of entry, I find that the

officers could not have reasonably believed that Ms. Matheny possessed common

authority over the premises sufficient to consent to their entry into Ms. Jackson’s

apartment and justify the warrantless search and seizure of the gun. The police

officers knew that Ms. Matheny had stayed with Defendant at Ms. Jackson’s

apartment for only “a few nights.” They knew that Ms. Matheny did not have a

key. They knew that Ms. Matheny had to knock to gain access to the apartment.

And most tellingly, it appears that they knew that they needed to deceive Ms.

Jackson in order to gain access to her apartment. If Ms. Matheny possessed

authority over the premises, there would be no need for Sergeant Morris to conceal

his identity in order to enter the apartment or, once inside the bedroom, to push the

door closed “just a little bit” and conceal the gun after its retrieval. If the officers

reasonably believed that they had valid consent, they would not have had to

construct a deceptive scheme to gain access to the apartment. The officers’ actions

in concocting the scheme belie any argument that they “reasonably” believed Ms.

Matheny had access to the apartment and/or the ability to consent to the search of

Ms. Jackson’s apartment. While they may have reasonably believed that Ms.

10
Case 1:15-cr-00244-LMM-CMS Document 25 Filed 01/06/16 Page 11 of 15

Matheny had access to the bedroom, the officers knew very well that the apartment

belonged to Ms. Jackson, and they evidently believed she would not agree to the

search.

Moreover, I find that given the information available to him, it was

unreasonable for Sergeant Morris to stand on the threshold of Ms. Jackson’s home

and proceed with the search without first obtaining Ms. Jackson’s consent. Morris

lied about who he was, deliberately deceiving Ms. Jackson so that he could avoid

giving her the opportunity to object to the warrantless search of her apartment.

This can be seen by Sergeant Morris’s testimony concerning his plan in the event

that the scheme to enter Ms. Jackson’s apartment was not successful:

We discussed the fact that if [Ms. Jackson] was uncooperative for any
reason that we would lock the apartment down and at that point go
and obtain a search warrant or identify ourselves as police officers, at
least, and try to gain consent.

(Tr. at 25). Thus, Sergeant Morris believed that if Ms. Jackson refused to allow

them to enter, they could not enter. This understanding is contrary to the

Government’s position that the officers reasonably believed Ms. Matheny had

sufficient access and control over the apartment to consent to a search. According

to his own testimony, Sergeant Morris planned to obtain valid consent by

identifying himself to Ms. Jackson as a police officer and requesting her consent

only as a last resort if the scheme failed. This testimony is inconsistent with a
11
Case 1:15-cr-00244-LMM-CMS Document 25 Filed 01/06/16 Page 12 of 15

belief that the search was pursuant to valid consent, and the Government’s

argument rings hollow.

The Government argues that because Ms. Matheny had the right to enter the

apartment alone to retrieve the gun, it would be “irrational” for this Court to rule

that Sergeant Morris could not lawfully accompany Ms. Matheny into Ms.

Jackson’s apartment and extract the gun himself. (Doc. 23 at 12). But the United

States Supreme Court addressed precisely this argument in Randolph, stating:

But society can often have the benefit of [the centuries-old principle
of respect for the privacy of the home] without relying on a theory of
consent that ignores an inhabitant’s refusal to allow a warrantless
search. The co-tenant acting on his own initiative may be able to
deliver evidence to the police, [Coolidge v. N.H., 403 U.S. 443, 487-
89 (1971)] (suspect’s wife retrieved his guns from the couple’s house
and turned them over to the police), and can tell the police what he
knows, for use before a magistrate in getting a warrant.

547 U.S. at 116-117. Thus, the Supreme Court has made clear that when faced

with a physically present co-tenant who objects to a warrantless search, law

enforcement must either (1) rely on the cooperating tenant to deliver the evidence

on her own or (2) use the information provided by the cooperating tenant to obtain

a search warrant. Here, law enforcement did neither.

The Government cites to an unpublished Eleventh Circuit opinion, U.S. v.

Weeks, 442 F. App’x 447, 453 (11th Cir. 2011), in support of its argument that the

officers reasonably believed that Ms. Matheny had authority to consent to the
12
Case 1:15-cr-00244-LMM-CMS Document 25 Filed 01/06/16 Page 13 of 15

search of Ms. Jackson’s apartment. In Weeks, the Eleventh Circuit affirmed the

reasonableness of a search based on the consent of a third party – the defendant’s

girlfriend – where the girlfriend was present when a team of agents entered

defendant’s apartment to arrest him and consented to a search of the apartment. In

Weeks, the Eleventh Circuit addressed the issue of whether the girlfriend could

consent, noting that the girlfriend had mutual use of the property, treated the

apartment as her own home, and shared both the master bedroom and a set of keys

to the apartment with the defendant. The Eleventh Circuit concluded that even if

the girlfriend did not have actual authority to consent, “she had at least apparent

authority.” Weeks, 442 F. App’x at 454.

The facts in the instant case are readily distinguishable from Weeks. Far

from concealing their identities or creating a ruse to gain access to the apartment,

the agents in Weeks were open about their purpose; they knocked on the door,

yelled “police,” and then forced their way inside the apartment. Weeks, 442 Fed.

Appx. at 450. When the officers entered, they encountered Mr. Weeks’s girlfriend

who – unlike Ms. Jackson – gave her consent to search the apartment. Id.

Moreover, in the instant case, there is no evidence of mutual use of the property

other than Ms. Matheny’s statements that she had stayed in a bedroom of Ms.

Jackson’s apartment with Defendant for approximately three nights, and that she

13
Case 1:15-cr-00244-LMM-CMS Document 25 Filed 01/06/16 Page 14 of 15

had some shoes, clothes, and toiletries in the bedroom. Unlike the girlfriend in

Weeks, Ms. Matheny did not have a key to the apartment and was not permitted to

come and go as she pleased. Ms. Matheny did not have the level of shared use and

authority over Ms. Jackson’s apartment that was present in Weeks. For all these

reasons, the undersigned does not find Weeks persuasive.

If the Government’s position were adopted, the consent exception to the

warrantless search rule would be improperly expanded, allowing law enforcement

officers the discretion to override the Fourth Amendment rights of citizens to

refuse to consent to warrantless searches. Suppression of the evidence in this case

is necessary to ensure that law enforcement is never too tired or too busy to honor

the Constitution that they have taken an oath to uphold. As explained by the

Supreme Court nearly ten years ago, when there are no exigent circumstances, and

the residents present at the site of the search do not consent to the search, law

enforcement must obtain a warrant. See Randolph, 547 U.S. at 120. The

Government has not met its burden to establish that Sergeant Morris had valid

consent to search Ms. Jackson’s apartment, or that it was reasonable for Sergeant

Morris to rely on Ms. Matheny’s consent when he conducted a warrantless search

of Ms. Jackson’s apartment. Accordingly, I conclude that the warrantless search of

14
Case 1:15-cr-00244-LMM-CMS Document 25 Filed 01/06/16 Page 15 of 15

Ms. Jackson’s apartment was unreasonable and that the fruits thereof should be

suppressed.

III. CONCLUSION

For the foregoing reasons, I recommend that Defendant’s Motion to

Suppress Evidence (Doc. 18) be GRANTED.

SO REPORTED and RECOMMENDED this 6th day of January, 2016.

CATHERINE M. SALINAS
United States Magistrate Judge

File and source

File: 25.pdf
Size: 75,207 bytes
SHA-256: 6f7e6ca73acaa6cf41ad4d0309fafcb6a642f528bc8adb732c666b573ffe6626
Our copy: 25.pdf
Original: No public link identified.