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United States v. Guidry

United States District Court, E.D. Louisiana

December 21, 2018

UNITED STATES OF AMERICA
v.
PHILLIP GUIDRY

         SECTION M (1)

          ORDER & REASONS

          BARRY W. ASHE UNITED STATES DISTRICT JUDGE.

         Before the Court is a motion to suppress filed by the defendant Phillip Guidry (“Guidry”) seeking to exclude any evidence seized in Guidry's home on March 2, 2018, and any statements made thereafter on the ground that the search violated the Fourth Amendment.[1] The government opposes the motion, [2] and Guidry submitted a reply in support.[3] On December 13, 2018, the Court held an evidentiary hearing. At the hearing, the government presented the testimony of Homeland Security Agent Thomas Smith (“Smith”), who was directly involved with the defendant's arrest and the search of the defendant's residence, and Officer Jeffrey Carrol Holley (“Holley”), who obtained completed consent-to-search and waiver-of-rights forms from the defendant's wife, Kaycee Guidry (“Ms. Guidry”). The defendant presented the testimony of Ms. Guidry. The government also presented audio of the recorded initial encounter between law enforcement officers and Ms. Guidry, and the defendant submitted a transcript of the recording. Having considered the parties' memoranda, the testimony and other evidence elicited at the hearing, and the applicable law, the Court issues this Order & Reasons.

         I. BACKGROUND

         On March 2, 2018, state and local police arrested Guidry pursuant to an out-of-state arrest warrant for a felony firearms violation. Smith testified that, prior to the arrest, he had investigated Guidry for being a self-professed “sovereign citizen.” In Smith's twenty-four years of law enforcement experience, he knew that sovereign citizens, or “preppers, ” typically stockpile weapons to prepare for doomsday survival. Smith testified that members of the community had made comments that Guidry's home was fitted with sniper holes, and that Guidry had bragged about having guns. Smith also testified that he had conducted surveillance of the home and observed that it was fortified with industrial fences, dogs, and metal fortifications.[4] Although the law enforcement officers lacked a search warrant, Agent Smith testified he had probable cause to support a warrant to search the home for firearms.

         Shortly after Guidry's arrest, Agent Smith and Task Force Officer Victor Marler of Homeland Security then approached Guidry's wife, also a convicted felon, at her place of employment to obtain consent to search the home. As evidenced in the eight-minute recording of the encounter, Ms. Guidry admitted she was “kind of expecting the officers upon their entry.[5]After informing Ms. Guidry that her husband was “under arrest for some weapons charges, ” Officer Marler said that they needed to get into the home and did not “want to harm no dogs.”[6]Ms. Guidry immediately explained that she had two Malinois dogs that were “kind of aggressive” one husky, and eight Malinois puppies.[7] Before Ms. Guidry began to describe the location of her son's gun, Marler reminded Ms. Guidry that she was “a convicted felon as well, ” but that the officers were “not interested in y'all.”[8] Then, Marler told Ms. Guidry: “We talked to him already and he would know what's in there. We just need the verification. … [W]e talked to him and he told us. Prepping, he told us everything. You know, um, and we told him we don't want to involve you because you still got work. … And you have a child to take care of”[9] Following his arrest, Guidry had not told police anything about firearms at his home. To the extent that Marler's words can be understood otherwise, Smith admitted at the hearing that it would have been a lie. Returning to Ms. Guidry's encounter with Smith and Marler, Ms. Guidry then tearfully admitted that she had been separated from Guidry, sleeping in a separate bedroom in the house, and shortly thereafter described two more guns in the home.[10]

         Marler then asked if Ms. Guidry would give her consent to search the home and accompany them to do so.[11] Again, tearfully, Ms. Guidry responded, “Okay. Are y'all going to take me in? If you are - I need to make arrangements for my daughter.”[12] Marler said he “can't promise you anything, but with your cooperation, we know the DAs, we know everybody.”[13] Smith responded that they would not “take her in” or trick her into doing something that would give them reason to arrest her, but that her cooperation was the “smoothest way to do it, ” avoiding “cut[ting] up your fence to get in, ” “us[ing] a battering ram and bash[ing] in your door to get inside, ” or “potentially shoot[ing] or hurt[ing] a dog on the way in.”[14]

         The group made plans to leave. Ms. Guidry permitted the officers to use the restroom, called her boss to let him know she would not be returning to work, and gave her contact information to her coworker. Ms. Guidry had initially agreed to ride with the police, but because she could work from home, drove herself in her own car, and the police followed. The police officers had requested that Ms. Guidry put her purse in the trunk of her car for the ride over to her home, and she had complied without objection.

         There is conflicting testimony as to when Ms. Guidry signed the consent-to-search and statement-of-rights forms. Officer Holley testified that, upon Ms. Guidry's arrival and in the driveway, he read her a consent form, which she and he signed at “1112 hrs” (11:12 a.m.), as denoted on the form.[15] Holley testified that Ms. Guidry was cordial and helpful, seemed to have her wits about her, and was less nervous than others in similar circumstances. Holley testified that Ms. Guidry then opened the gate, secured the dogs, entered the home, and directed the officers to the bedroom and the mattress under which an automatic weapon was hidden. The statement-of-rights form was completed later, also signed by Holley and Ms. Guidry, and shows the time it was completed as “1133 hrs” (11:33 a.m.). It bears a handwritten note that states, “Search begins 1120 hrs” (11:20 a.m.).[16] Thus, as Holley remembers it, Ms. Guidry showed the officers the gun in the bedroom shortly after signing the consent-to-search form but before executing the statement-of-rights form. Ms. Guidry testified that she does not remember signing anything until after showing the officers a gun in her husband's bedroom.

         The officers seized six firearms on March 2, 2018.[17] On March 6, 2018, law enforcement again contacted Ms. Guidry to obtain consent to search the Guidry home. On March 7, 2018, Ms. Guidry permitted the second search, during which the Bureau of Alcohol, Tobacco, and Firearms seized ammunition and a surveillance DVR system.[18] No. charges followed the second search.[19] Thereafter, the Grand Jury charged Guidry in a one-count indictment for being a convicted felon in possession of a firearm in violation of 28 U.S.C. §§ 922(g)(1) and 924(a)(2).[20]

         II. PENDING MOTION

         Guidry moves to suppress the evidence seized on March 2, 2018, and any statements subsequently made by him or his wife on the ground that the warrantless search violated the Fourth Amendment.[21] Guidry contends that the officers, lacking probable cause, coerced Ms. Guidry into showing the officers the firearms in the home by making misrepresentations and threats. Guidry says the officers concocted Guidry's confession to possessing firearms when they informed Ms. Guidry he had “told [them] everything, ” because, at the time of his arrest and booking, Guidry had only made general remarks about his religious and political beliefs.[22] Further, because Ms. Guidry was a convicted felon, Guidry suggests she did not believe she could refuse consent, implying that her cooperation was forced by the threat of her own arrest. Guidry also essentially contends that the officers' comments about shooting the dogs and Ms. Guidry's need to care for her child constituted a “veiled threat” of arrest such that her will was overborne.[23] Additionally, Guidry argues that the officers never informed Ms. Guidry of her right to refuse consent or terminate the police encounter, which contributed to her reasonable fear as “a woman, confronted by two male law enforcement officers who announced they had just arrested her husband.”[24] And finally, Guidry submits that the officers had ample time to obtain a warrant while Guidry was arrested and Ms. Guidry was at work and they should have done so.[25] Alternatively, Guidry contends that consent was never given prior to the search, suggesting that the time stated on the consent-to- search form was fabricated, and that Ms. Guidry only signed the consent-to-search form after the police seized the firearms.[26] In either instance, Guidry maintains that the firearms and statements should be suppressed as fruits of the poisonous tree.

         The government claims it has carried its burden to show that Ms. Guidry, as a person with authority, provided oral and written consent freely and voluntarily. First, the government contends that Ms. Guidry's oral consent was voluntary. Thus, the timing as to when Ms. Guidry gave written consent is superfluous.[27] Nonetheless, the government claims that no search began until Ms. Guidry signed the consent-to-search form. Moreover, says the government, probable cause existed to obtain a search warrant of the home, such that suppression is unjustified.[28]

         In support of voluntariness, the government analyzes the six factors applied by the Fifth Circuit.[29] At no point was Ms. Guidry under arrest; the conversation was cordial rather than coercive; and Ms. Guidry showed a high level of cooperation by leading the officers to her home, securing the dogs, and revealing the locations of at least three guns. Further, there is no requirement that she be informed of her right to refuse consent; besides, her prior conviction shows her familiarity with the criminal justice system and awareness of her rights. There is no suggestion, posits the government, that Ms. Guidry is uneducated, is not fluent in English, or cannot read. And although Ms. Guidry knew incriminating evidence existed at her home, that factor is not dispositive. According to the government, the totality of the circumstances demonstrates that Ms. Guidry freely gave her consent, which is underscored by the fact that, five days after the initial search, she gave consent to search the home a second time, which the defendant does not challenge.

         III. LAW & ANALYSIS

         Warrantless searches are presumptively unreasonable under the Fourth and Fourteenth Amendments, absent an exception, such as when conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). The government bears the burden of proving consent by a preponderance of the evidence. See United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001). Consent is valid when it is given by a person with actual or apparent authority over the premises sought to be searched. Illinois v. Rodriguez, 497 U.S. 177, 186-89 (1990); see also United States v. Matlock, 415 U.S. 164, 171 & n.7 (1974) (consent given by third person is valid when third person possesses “common authority, ” that is, “mutual use of property by persons generally having joint access or control for most purposes”).

         After determining that a person with authority gave consent, the Court must determine whether consent was voluntary. To do so, courts in the Fifth Circuit consider six factors:

(1) the voluntariness of the defendant's [or third party's] custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's [or third party's] cooperation with the police; (4) the defendant's [or third party's] awareness of his right to refuse consent; (5) the defendant's [or third party's] education and intelligence; and (6) the defendant's [or third party's] belief that no incriminating evidence will be found.

United States v. Jenson, 462 F.3d 399, 406 (5th Cir. 2006); see United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993) (applying factors to a third party). While all six factors are relevant, no one factor is dispositive. United States v. Shabazz, 993 F.2d 431, 438 (5th Cir. 1993). Instead, the Court examines every factor in the totality of the circumstances. The critical issue is whether the defendant or third party's will was overborne. United States v. Davis, 749 F.2d 292, 294 (5th Cir. 1985). Consent may not be “the product of duress or coercion, express or implied, ” or the mere “acquiescence to a claim of lawful authority.” United States v. Mendenhall, 446 U.S. 544, 557 (1980) (quoting Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968)). Rather, the government “has the burden of proving that the consent was, in fact, freely and voluntarily given.” Bumper, 391 U.S. at 548.

         In this case, Guidry does not dispute that Ms. Guidry had authority to give consent to the search, [30] but principally argues that her consent was involuntary. Guidry contends that Ms. Guidry's will was overborne considering the totality of the circumstances, including the officers' alleged misrepresentations and threats. The totality of the circumstances, however, does not show that Ms. Guidry's will was overborne, but instead, demonstrates that Ms. Guidry's consent was, in fact, freely and voluntarily given.

         When analyzing the first factor, courts generally consider whether a reasonable person would not feel free to leave, the lower standard associated with any seizure rather than the higher standard of custody, which is a degree of restraint associated with a formal arrest. Compare Mendenhall, 446 U.S. at 553-54 (defining seizure for purposes of the Fourth Amendment to mean “when, by means of physical force or a show of authority, [a person's] freedom of movement is restrained”), with Stansbury v. California,511 U.S. 318, 322-23 (1994) (defining custody for purposes of Miranda as “whether there [was] a ...


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