United States District Court, E.D. Louisiana
ORDER & REASONS
W. ASHE UNITED STATES DISTRICT JUDGE.
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. The government opposes the
motion,  and Guidry submitted a reply in
support. 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.
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. 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
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.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.”Ms. Guidry
immediately explained that she had two Malinois dogs that
were “kind of aggressive” one husky, and eight
Malinois puppies. 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.” 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” 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
then asked if Ms. Guidry would give her consent to search the
home and accompany them to do so. 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.” Marler said he “can't promise
you anything, but with your cooperation, we know the DAs, we
know everybody.” 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.”
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.
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. 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.). 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.
officers seized six firearms on March 2, 2018. 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. No. charges followed the second
search. 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).
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. 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. 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. 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.” 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. 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. In either instance, Guidry maintains
that the firearms and statements should be suppressed as
fruits of the poisonous tree.
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. 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
support of voluntariness, the government analyzes the six
factors applied by the Fifth Circuit. 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.
LAW & ANALYSIS
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”).
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
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.
case, Guidry does not dispute that Ms. Guidry had authority
to give consent to the search,  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
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 ...