U.S. vs. McGraw

While executing a search warrant
for drugs inside a Fort Wayne, Indiana apartment
building, police officers noticed that the building had
several housing-code violations. Police called a neighborhood
code-enforcement officer, who arrived and determined
that the apartment building must be condemned.
That determination required officers to go door-to-door
and notify the building’s residents that they needed to
leave their apartments. When Frank McGraw, the second
floor tenant, arrived on the scene, officers instructed him
to secure his dog and collect the belongings he would
need for a few days. They also explained their need to
inspect his apartment for housing-code violations and to
search for potential stragglers. McGraw consented to the
search three times before leaving the apartment building
with his dog. During that search, police observed
narcotics in plain view, and McGraw was charged with
possession of crack cocaine.

McGraw moved to suppress the evidence, claiming
that any consent he gave was not voluntary but instead
constituted acquiescence to the officers’ display of authority.
The district court denied the motion, finding that
McGraw’s consent was voluntary. McGraw then entered
into a conditional plea agreement, in which he waived
his right to appeal sentencing determinations but preserved
his right to appeal the court’s suppression ruling.
At sentencing the district court classified McGraw as a
career offender under the guidelines and sentenced him
to 262 months’ imprisonment. On appeal McGraw challenges
the court’s suppression ruling and its determination
that he qualified as a career offender.

We affirm. The district court did not clearly err in
finding that McGraw voluntarily consented to the officers’
search. The court analyzed the totality of the circumstances
and determined that despite the way in which
some of the officers phrased their request to
search McGraw’s unit, McGraw voluntarily consented to
their search. Because the court’s conclusion is entirely
plausible in light of the record viewed in its entirety, the
court properly denied McGraw’s motion to suppress.
Further, we hold that McGraw waived his right to challenge
the district court’s sentencing determination.

I. Background

A. Officers Search McGraw’s Apartment1
On April 6, 2006, Officer Squadrito, Officer Musi, and
other officers executed a search warrant for drugs in the
third-floor unit of an apartment building in Fort Wayne,
Indiana. In the process of searching the apartment and
arresting its inhabitants, officers noticed several housingcode
violations. They contacted Mark Salomon, a neighborhood
code-enforcement officer, who arrived and determined
that the building must be condemned because,
among other violations, it lacked a working furnace.
Because this decision required the officers to board up
the building until the landlord made the necessary
repairs, the officers first had to notify the residents of the
condemnation and ensure that everybody vacated the
building. Frank McGraw, the second-floor tenant, was
absent, but officers could hear a large dog barking
behind his door. Officers soon learned that McGraw was
across the street, and they summoned him to his apartment.
By the time McGraw arrived, Salomon had
attached a “condemned sign” to the front of the building.
A crowd of bystanders had also gathered, and a
S.W.A.T. team from the third-floor raid stood by.

Salomon and Musi greeted McGraw on the building’s
front porch. McGraw asked what his apartment had to
do with the third-floor search, and Salomon answered
that the entire building had been condemned. Salomon
twice explained to McGraw that officers “would need to
go into his apartment to do a[n] inspection inside of his
apartment to look for other housing code violations.”
Salomon also told McGraw that the dog prevented the
officers from conducting this inspection. Salomon thus
offered McGraw the choice to retrieve his dog or have
Animal Control do it for him. McGraw chose the former
and commented that his “dog did not like people in
uniform,” a statement the district court interpreted as a
joke. As McGraw approached the building’s entrance,
Squadrito told him “to retrieve his dog and his
belongings, because it was going to be a day or two” before
McGraw could reenter the condemned building. McGraw
responded that officers were “welcome to go up there
with him” and reiterated that his dog, a “pit bull[,] doesn’t
like police officers.” Inside the building but outside his
apartment, McGraw then spoke with Musi, who asked,
“Sir, do you mind if we go in with you to make sure there’s
nobody else in there?” McGraw responded, “Go ahead if
you want to search,” or “Yeah, go ahead and come in
and search if you want to.” Squadrito, however, told his
fellow officers to stay outside because the pit bull threatened
their safety.

McGraw entered his apartment, and a few minutes
passed while he searched for his dog’s leash. Because of
the delay, police told McGraw to leave his apartment.
McGraw quickly leashed his dog with his cell-phone cord
and exited the apartment, leaving his door ajar and his
lights and television on. Once outside the building,
McGraw again briefly spoke with Squadrito, who told
McGraw that police “were going to check his apartment.”
McGraw responded that his door was open and that they
were “more than welcome” to enter but that nobody
remained inside. Squadrito explained that police would
nonetheless have to make sure before they boarded up
the building. McGraw then left the premises with his dog.

Squadrito entered McGraw’s apartment to search for
stragglers, while Salomon searched the unit for other
housing-code violations. In McGraw’s bedroom Squadrito
saw in plain view a digital scale with a white residue, a
plastic bag containing a green weed-like substance, and
an open gym bag containing money and suspected crack
cocaine. Squadrito had Salomon photograph the suspected
narcotics, and they quickly exited the apartment.
Police later obtained a search warrant and recovered
the evidence.

B. The Proceedings Below
McGraw was charged with possession with intent to
distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1).
He moved to suppress the evidence obtained in the search
of his apartment. The district court concluded that the
officers had performed a warrantless search without
exigent circumstances and that suppression therefore
turned on whether McGraw had voluntarily consented
to the search. The court held that “a totality of the circumstances
shows that the Defendant voluntarily gave
permission to the officers.” The court found that McGraw
consented first to Squadrito’s request to search and then
to Musi’s before entering his apartment to retrieve his
dog, but that the scope of those consents was limited to
a search with McGraw present. The court further held
that McGraw extended the scope of his consent to encompass
a search outside of his presence when, as he
exited the building with his dog, he told Squadrito
that officers were “more than welcome” to search his
apartment.

The court rejected McGraw’s argument that any
consent he gave was merely acquiescence to the officers’
display of authority and therefore not voluntary. The
court believed that the facts “present a close case” but
nonetheless concluded that the officers did not claim
authority to search and that any consent was voluntarily
given. As the court explained,
This finding rests primarily on the facts that [McGraw]
was not a suspect and had no reason to think that he
was a suspect, that [McGraw] gave consent to the
officers to come with him into his apartment twice,
that [McGraw] invited them in a third time as he
was leaving, and that the interactions between
[McGraw] and the officers had been calm and cooperative.

The district court also considered the officers’ comments.
It construed Salomon’s statement of a “need to go inside”
to inspect the apartment as a request rather than a command
because it had no coercive effect and did not
imply that Salomon suspected McGraw of wrongdoing.
The court interpreted Squadrito’s statement that police
“were going to check his apartment” as a “follow-up” to
McGraw’s first invitation into his apartment or, alternatively,
as a suggestion of authority based only on
McGraw’s previous consents. The court also highlighted
that Musi’s question whether officers could enter
McGraw’s apartment implied that permission could be
refused, yet McGraw nevertheless welcomed officers
into his apartment. Finally, the court noted that “the total
lack of any statement by [McGraw] implying that he
objected to the officers’ search of his apartment also
suggests he voluntarily consented to the search of his
apartment.”

Having lost the suppression battle, McGraw entered a
conditional plea of guilty, waived his right to challenge
any aspect of his sentencing, and preserved his right to
challenge the district court’s denial of his motion to
suppress. At sentencing the district court classified
McGraw as a career offender under § 4B1.1 of the United
States Sentencing Guidelines and sentenced him to 262
months, the low end of the applicable guidelines range.

II. Analysis
This case presents two issues on appeal: first, whether
the district court clearly erred in determining that
McGraw voluntarily consented to the search of his apartment,
and second, whether McGraw may challenge the
district court’s classification of McGraw as a career offender.
Because we conclude that the district court
did not clearly err in its suppression ruling and that
McGraw waived his right to challenge his sentencing,
we affirm.

A. The District Court’s Suppression Ruling
The Fourth and Fourteenth Amendments safeguard the
“right of the people to be secure in their . . . houses . . .
against unreasonable searches and seizures.” A warrantless
search of a suspect’s house without exigent circumstances
is presumptively unreasonable, Payton v. New York, 445
U.S. 573 (1980), and the exclusionary rule generally requires
suppression of the evidence obtained from such
searches. However, this general rule is subject to wellrecognized
exceptions, including the suspect’s voluntary
consent to the search.2 See, e.g., Schneckloth v. Bustamonte,
412 U.S. 218 (1973). Consent-search cases distinguish
between voluntary consent and consent resulting from
duress, coercion, or acquiescence to authority. This is
a “question of fact to be determined from the totality of
all the circumstances,” id. at 227, and the government
No. 08-2705 9
bears the burden of proving voluntary consent by a
preponderance of the evidence, United States v. Basinski,
226 F.3d 829, 833 (7th Cir. 2000). Factors bearing on this
inquiry include:
(1) the person’s age, intelligence, and education,
(2) whether he was advised of his constitutional rights,
(3) how long he was detained before he gave his
consent, (4) whether his consent was immediate, or
was prompted by repeated requests by the authorities,
(5) whether any physical coercion was used, and
(6) whether the individual was in police custody
when he gave his consent.
United States v. Raibley, 243 F.3d 1069, 1075-76 (7th Cir.
2001); see also Schneckloth, 412 U.S. at 226 (listing essentially
the same factors).

In this case the district court concluded that the government
satisfied its burden of proving voluntary consent.
The parties agree that we review that determination for
clear error. See Raibley, 243 F.3d at 1076; United States v.
Nafzger, 965 F.2d 213, 216 (7th Cir. 1992). “A finding
is clearly erroneous when although there is evidence to
support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake
has been committed.” United States v. Rice, 995 F.2d 719,
722 (7th Cir. 1993). “Where there are two permissible
views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.” Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 574 (1985). Stated differently,
“ ‘[i]f the district court’s account of the facts is
plausible in light of the record viewed in its entirety, we
may not reverse that decision even if we may have
decided the case differently.’ ” Raibley, 243 F.3d at 1076
(quoting Cent. States, Se. & Sw. Areas Pension Fund v. Kroger
Co., 226 F.3d 903, 910 (7th Cir. 2000)).

We agree with the district court that this is a close case.
On the one hand, considerable evidence suggested that
McGraw voluntarily consented to the officers’ search. For
instance, Musi specifically requested the right to enter
McGraw’s apartment, signaling that McGraw may withhold
consent. Yet McGraw readily allowed Musi to enter.
Further, McGraw consented to Squadrito’s entry both
before and after he secured his dog. McGraw also left his
door ajar and his lights on, and told Squadrito of this
fact as he left his apartment building, thus suggesting he
approved of the officers’ entry into his apartment. Moreover,
the district court found that the tone of the interaction
between McGraw and the officers at all times remained
calm and cooperative, and the evidence supports
this finding. Finally, McGraw even joked with
police about his dog’s dislike of officers, suggesting (as
the district court held) that McGraw was not overwhelmed
by any show of authority.

On the other hand, there is also some evidence that
weighs against a finding of voluntariness. Most importantly,
in their encounter with McGraw, both Squadrito
and Salomon arguably implied that they had a right to
search McGraw’s apartment without his permission.
Further, Squadrito testified that if he were unable to locate
McGraw, he “would have made the decision to have
contacted the landlord, unlock the door, and made sure
there [were] no human occupants within the dwelling.”
Had a search resulted merely from the landlord’s
consent, the exclusionary rule might be triggered. See
Chapman v. United States, 365 U.S. 610 (1961).

Faced with competing evidence, the district court looked
to the “totality of the circumstances” in determining
whether McGraw’s consent was voluntarily given. The
court treated Salomon’s and Squadrito’s suspect language
as a “factor [that] weighs against a finding of voluntary
consent,” and suggested that even in the presence of such
language, the proper inquiry is “whether such claims [of
authority] outweigh the other factors suggesting consent
was voluntary.” That is precisely the approach that we
outlined in United States v. Nafzger. In that case we
referred to an improper claim of police authority as a
“factor” that must be “weigh[ed] . . . along with the other
factors that Schneckloth . . . directs courts to weigh in
totality-of-the-circumstances cases.” Nafzger, 965 F.2d at
216; see also Bolden v. Se. Penn. Transp. Auth., 953 F.2d 807,
824 (3d Cir. 1991) (en banc) (“If the party conducting the
search claimed the authority to search without consent,
that factor weighs against a finding of voluntary consent.”).
The district court concluded that the officers’ arguable
assertions of authority did not outweigh the evidence
supporting the conclusion that McGraw’s consent was
voluntary, namely, McGraw’s conduct, his calm cooperation,
and his broadly phrased consents following Musi’s
unambiguous request to inspect his apartment.

The court’s finding that McGraw voluntarily consented
to the officers’ search is certainly “plausible in light of
the record viewed in its entirety.” Raibley, 243 F.3d at 1076.
We are not left with “the definite and firm conviction
that a mistake has been committed.” United States v. Rice,
995 F.2d 719, 722 (7th Cir. 1993). Keeping in mind the
deference due the district judge, who is in a superior
position to observe the witnesses and determine exactly
what happened and how it happened, we conclude that
the court did not clearly err.

McGraw, however, argues that Nafzger compels the
opposite result. We disagree. In Nafzger, police went to
Nafzger’s farm and asserted the right to search his property
for a stolen pickup truck based on a legally insufficient
search warrant. Nafzger was permitted to read
the search warrant and then led officers to a toolshed
where the stolen truck was parked. Nafzger later moved
to suppress the evidence, and the district court denied
his motion. We reversed, holding that Nafzger merely
acquiesced to the search based on the officers’ false
claim of authority. Nafzger is distinguishable for several
reasons. First, the officers in this case did not make
any comparable claim of authority akin to asserting they
had a warrant; nor did they, as in Nafzger, actually produce
one. Second, even if Squadrito and Salomon did claim
authority to search—a finding, as we explained above,
the district court rejected—their assertions were
tempered by Musi’s question and McGraw’s actions. Third,
Nafzger does not suggest that an officer’s assertion of
authority ends the factual inquiry. On the contrary, our
opinion recognized that the district court must apply a
totality-of-the-evidence analysis even when faced with
officers’ claims of authority. Nafzger, 965 F.2d at 216. Here,
the district court did precisely that.

B. McGraw’s Waiver of His Right to Appeal His Sentence
McGraw also tries to challenge his sentencing classification
as a career offender, which increased his guidelines
range from 92-115 months to 262-327 months. He
argues that fleeing from an officer and intimidating an
officer are no longer crimes of violence after Begay v.
United States, 128 S. Ct. 1581 (2008). We do not address
the merits of this question, however; in his plea agreement,
McGraw waived his right to appeal his sentence. A
knowing and voluntary appeal waiver precludes appellate
review, United States v. Jones, 381 F.3d 615, 619 (7th Cir.
2004), and McGraw admits that his plea agreement included
an unambiguous waiver of his right to challenge
the district court’s sentencing determinations. He nonetheless
argues that because he did not anticipate Begay,
he could not have knowingly and voluntarily waived
his right to appeal based on a Begay-type argument.

We have consistently rejected arguments that an
appeal waiver is invalid because the defendant did not
anticipate subsequent legal developments. In United
States v. Lockwood, 416 F.3d 604 (7th Cir. 2005), for
example, we considered a challenge from a defendant
sentenced before the Supreme Court declared the sentencing
guidelines advisory in United States v. Booker, 543
U.S. 220 (2005). The defendant argued that “his appeal
waiver is invalid because the parties and the court failed
to anticipate Booker.” Lockwood, 416 F.3d at 607. We
instead concluded that

Lockwood knowingly and intentionally waived his
right to appeal his sentence for any reason. . . . The fact
that Lockwood, the government, and the district
court failed to anticipate Booker or its sweeping effect
on federal guidelines sentencing does not change this
conclusion. There simply is nothing special about
Booker that would preclude enforcement of an otherwise
valid appeal waiver.
Id. at 608 (citations omitted).

Our position in Lockwood is consistent with our longexpressed
view that plea-bargain appeal waivers involve
risk:
By binding oneself one assumes the risk of future
changes in circumstances in light of which one’s
bargain may prove to have been a bad one. That is the
risk inherent in all contracts; they limit the parties’
ability to take advantage of what may happen over
the period in which the contract is in effect.

United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005)
(also rejecting the argument that Booker created a “sea
change” in the law and commenting that in any event, a
“ ‘sea change’ exception to the rule . . . would be hopelessly
vague”). We also noted that our conclusion could
differ had the defendant “insisted on an escape hatch
that would have enabled him to appeal if the law
changed in his favor after he was sentenced.” Id.

Lockwood and Bownes thus require that we affirm. By
entering into an appeal waiver that did not include an
escape hatch of the kind we contemplated in Bownes,
McGraw relinquished his right to challenge his sentence
based on intervening Supreme Court decisions. Moreover,
the case for recognizing any exception after Begay is far
weaker than the case for recognizing an exception after
Booker. After all, Begay was a statutory-interpretation
case, whereas Booker invalidated the entire mandatoryguidelines
system on constitutional grounds. If a defendant’s
plea agreement remains knowing and voluntary
despite Booker, Begay cannot command a contrary result.
Accordingly, because McGraw’s waiver of his right to
appeal his sentence is valid, we do not reach the merits
of McGraw’s sentencing argument.
AFFIRMED.


Chicago Criminal Lawyer - Robert J Callahan