         09-1670-cr
         United States v. Grant



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 8 th day of April, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                GERARD E. LYNCH,
 9                         Circuit Judge,
10                JANE A. RESTANI, *
11                         Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15
16                    Appellee,
17
18                    -v.-                                         09-1670-cr
19
20       RICHARD A. GRANT,
21
22                Defendant-Appellant.
23       - - - - - - - - - - - - - - - - - - - -X
24
25       APPEARING FOR APPELLANT:               Colleen P. Cassidy, Federal


                *
               The Honorable Jane A. Restani, Chief Judge of the
         United States Court of International Trade, sitting by
         designation.
 1                              Defenders of New York, Inc., New
 2                              York, NY.
 3
 4   APPEARING FOR APPELLEE:    Carrie H. Cohen (Michael
 5                              Bosworth, on the brief), for
 6                              Preet Bharara, United States
 7                              Attorney for the Southern
 8                              District of New York, New York,
 9                              NY.
10
11
12        Appeal from a judgment of the United States District
13   Court for the Southern District of New York (McMahon, J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16   AND DECREED that the matter is REMANDED to the district
17   court for clarification of the Findings of Fact.
18
19        Defendant-appellant Richard A. Grant appeals from a
20   judgment of conviction entered in the United States District
21   Court for the Southern District of New York (McMahon, J.).
22   We assume the parties’ familiarity with the underlying
23   facts, the procedural history, and the issues presented for
24   review.
25
26        In part, Grant’s appeal challenges the district court’s
27   denial of a motion to suppress physical evidence seized from
28   his apartment, and his post-arrest oral and written
29   statements. “The standard of review for evaluating the
30   district court’s ruling on a suppression motion is clear
31   error as to the district court’s factual findings, viewing
32   the evidence in the light most favorable to the government,
33   and de novo as to questions of law.” United States v.
34   Rodriguez, 356 F.3d 254, 257 (2d Cir. 2004).
35
36        Grant argues that, on the basis of the relevant
37   Findings of Fact, the district court could not, as a matter
38   of law, determine that the police officers had Grant’s
39   implied consent to enter his apartment. “The government has
40   the burden of proving consent voluntarily given by a
41   preponderance of the evidence.” United States v. Calvente,
42   722 F.2d 1019, 1023 (2d Cir. 1983). “[I]t is well settled
43   that consent may be inferred from an individual’s words,
44   gestures, or conduct. Thus a search may be lawful even if

                                  2
 1   the person giving consent does not recite the talismanic
 2   phrase: ‘You have my permission to search.’” United States
 3   v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir. 1981)
 4   (internal citation omitted). “The standard for measuring
 5   the scope of a suspect’s consent under the Fourth Amendment
 6   is that of ‘objective’ reasonableness--what would the
 7   typical reasonable person have understood by the exchange
 8   between the officer and the suspect?” Florida v. Jimeno,
 9   500 U.S. 248, 251 (1991). In evaluating a person’s words,
10   gestures, or conduct under the objective reasonableness
11   standard, “the totality of the circumstances [] must be
12   considered.” United States v. Garcia, 56 F.3d 418, 423 (2d
13   Cir. 1995).
14
15        To enter Grant’s apartment, the police had to pass
16   first through the outer door of the building, into the lobby
17   or hallway leading to the apartment. It is not altogether
18   clear from the Findings of Fact whether the police were
19   standing inside (or outside) the outer door when they asked
20   to talk with Grant and he turned away toward his apartment.
21   That uncertainty may have bearing on the analysis and the
22   scope of any appellate ruling. Accordingly, we respectfully
23   request that the district court answer the following
24   question within thirty days of the issuance of the mandate,
25   if practicable: Were the police officers outside the outer
26   door of Grant’s building when they identified themselves and
27   asked to speak with Grant?
28
29        The district court found the following facts with
30   respect to the police entry:
31
32            12. The officers testified that Grant came to the
33            door after they rang the bell. Grant testified
34            that he never left his apartment, and that when he
35            opened his door to look out and see who was at the
36            door, the officers were already in the hallway in
37            front of his apartment. I credit the officers’
38            testimony that Grant let them into the building.
39
40            13. Sgt. Murphy identified the officers to Grant
41            as police and told him that they wanted to talk to
42            him.
43
44            14.   Grant turned from the front door and walked


                                   3
 1            away from the officers toward his apartment. The
 2            officers followed him down the hall. Grant
 3            neither invited the officers to follow him nor did
 4            he physically impede the officers from following
 5            him.
 6
 7            15. None of the officers spoke to Grant as they
 8            followed him down the hall, and Grant did not
 9            speak to the officers.
10
11            16. Grant walked into his apartment. The
12            officers followed him in. Grant neither invited
13            the officers to follow him into the apartment nor
14            physically impeded the officers from following him
15            into the apartment.
16
17            17. Grant never told the officers in words that
18            they could enter his apartment.
19
20   If the sequence of these Findings of Fact tracks the
21   chronology of events, it would seem that the police officers
22   already had entered the common area of the building at the
23   time of their identification and request to speak.    On the
24   other hand, the district court’s Conclusions of Law seem to
25   indicate that the police officers remained outside the outer
26   door of the building when they identified themselves and
27   requested to speak with Grant:
28
29            I have concluded from the evidence adduced at the
30            hearing that Grant met the officers at the front
31            door of the building, the officers identified
32            themselves, Sgt. Murphy told defendant that they
33            (the police) wanted to talk to him, Grant admitted
34            the officers into the building, then turned around
35            and walked ahead of them into his apartment.
36
37   Our question can be briefly answered, but any supplemental
38   findings, observations, and conclusions (bearing upon the
39   entry of the police to the building and the apartment) would
40   be welcome and may be helpful.
41
42        Pursuant to the procedure outlined in United States v.
43   Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), we hereby remand the
44   case to the district court for the limited purpose of

                                   4
 1   resolving this ambiguity, and we instruct the Clerk of the
 2   Court to issue the mandate forthwith. Within ten days of the
 3   district court’s filing of its written answer to this inquiry,
 4   either party to the proceedings may restore the case to this
 5   panel by giving notice to the Clerk of the Court. See id.
 6
 7        The matter is hereby REMANDED to the district court for
 8   a response to this Court’s inquiry.
 9
10                               FOR THE COURT:
11                               CATHERINE O’HAGAN WOLFE, CLERK
12




                                   5
