United States v. Stokely (733 F. Supp. 2d 868, 2010)

MEMORANDUM OPINION AND ORDER

THOMAS A. VARLAN, District Judge.

This criminal action is before the Court on the Report and Recommendation (the “R & R”) [Doc. 27], issued on June 17, 2010 by United States Magistrate Judge C. Clifford Shirley, Jr. Defendant Beverly Stokely is charged in the single-count indictment in this case [Doc. 1] with being a felon in possession of a firearm on September 10, 2009, in violation of 18 U.S.C. § 922(g)(1).

On March 29, 2010, defendant filed a Motion to Suppress Evidence and Memorandum in Support (the “motion to suppress”) [Doc. 14], arguing that the search of her residence by law enforcement officers violated the Fourth Amendment because the searching officers did not have a search warrant, no exigent circumstances existed, defendant refused consent to the search, and defendant’s husband did not voluntarily give his consent to the search. On April 12, 2010, the United States filed a response in opposition [Doc. 15], arguing that the officers searched defendant’s residence pursuant to a valid, voluntary consent to search by defendant’s husband and that, even if the Court finds defendant’s husband’s consent to be invalid, application of the exclusionary rule is unwarranted.

On April 28, 2010, Magistrate Judge Shirley held an evidentiary hearing on the pending motion [see Doc. 16]. Following the presentation of testimony and evidence, Judge Shirley permitted the parties to file supplemental briefs on an officer’s authority to handcuff a resident upon his arrival, prior to the search of the residence, and pursuant to the resident’s alleged consent. Both parties filed supplemental briefs [Docs. 20, 21] and the government filed a reply brief [Doc. 23].

On June 17, 2010, Magistrate Judge Shirley issued the R & R finding that the warrantless search of defendant’s residence violated the Fourth Amendment because the officers did not have valid consent because defendant’s husband, Mr. Toby Stokely (“Mr. Stokely”), was illegally detained and his illegal detention vitiated his subsequent consent. Accordingly, Judge Shirley recommended that defendant’s motion to suppress [Doc. 14] be granted.

On July 1, 2010, the government filed objections to the R & R [Doc. 29], requesting that this Court receive additional evidence to clarify certain factual inaccuracies for proper application to the law pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, or, alternatively, recommit the matter to the magistrate judge. The government also requests that the Court reject in part the portion of the R & R that recommends suppression of evidence and deny defendant’s motion to suppress as a whole. Defendant has not responded to the government’s objections. This matter is now before the Court on the government’s objections.

I. Relevant Facts

The findings of fact of the magistrate judge are as follows:

On September 10, 2009, Detective Krystal Gibson (“Detective Gibson”) of the Knox County Sheriffs Office (the “KCSO”) went to defendant’s residence to arrest defendant for the December 2008 armed robbery of the Holiday Inn in Dandridge, Tennessee. No one was at the residence, so Detective Gibson went to lunch. While having lunch, she received word that defendant had been stopped. Defendant was pulled over at a Family Dollar store by two local law enforcement patrol cars and ordered out of her car and arrested pursuant to an arrest warrant. Special Agent Rebecca Bobich (“Agent Bobich”), with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (the “ATF”), arrived at the scene of defendant’s arrest shortly thereafter. At some point after defendant’s arrest and while she was detained in a police car, KCSO Detectives Matt Sexton (“Detective Sexton”) and Walt Schmidt (“Detective Schmidt”) asked defendant to give consent to search her residence. Defendant did not give consent but deferred to her husband, Mr. Stokely. Detective Schmidt tried to call Mr. Stokely but could not reach him. Although the detectives tried to get defendant to make a decision about granting consent to search her residence, she continued to defer to her husband.

Approximately forty minutes after defendant was stopped, Agent Bobich reviewed her Miranda rights, using a rights waiver form. Defendant agreed that she understood her rights and waived them, signing the rights waiver form. Ten minutes before signing the rights waiver form, but after defendant had received oral advice of her Miranda rights, defendant signed a consent form, agreeing to permit the officers to search her car. While at the scene of her arrest, defendant told Agent Bobich that she kept a twelve gauge shotgun under her bed at her residence. Agent Bobich asked defendant if she would consent to the search of her residence, but she deferred to her husband, Mr. Stokely. Defendant gave Agent Bobich Mr. Stokely’s cellular telephone number but warned the agent that he would not answer a call from a number that he did not know. At 1:56 P.M., Agent Bobich called Mr. Stokely and left a message that his wife was in custody and that he needed to call Agent Bobich. Shortly after 2:00 P.M., Mr. Stokely returned Agent Bobich’s call. She told him that his wife was in custody and asked if he would meet her at his residence. Mr. Stokely agreed.

After hearing that defendant had been stopped, Detective Gibson returned to defendant’s residence to await Mr. Stokely’s arrival. When Mr. Stokely arrived around 2:10 P.M., Detective Gibson called for backup. She then approached Mr. Stokely and handcuffed him for what she testified was her “safety.” About five minutes later, another officer, Officer Scalf, arrived at the residence, and Detective Gibson moved Mr. Stokely’s handcuffs to the front and placed him in double cuffs. Detective Gibson and Officer Scalf stood in the driveway talking with Mr. Stokely, who was seated on the front porch. Mr. Stokely was permitted to smoke during this time.

About twenty minutes later, Agent Bobich, Investigator Glen Morrell (“Investigator Morrell”), and defendant arrived at the residence. Investigator Morrell waited in the car with defendant for about ten minutes before defendant was transported from the scene. Agent Bobich approached Mr. Stokely and was present when Detective Gibson reviewed the consent to search form with him. Mr. Stokely signed the consent form at 2:35 P.M. Agent Bobich and Detective Gibson performed a brief security sweep of the house and saw a marijuana plant and loose marijuana inside. A forensic unit and a narcotics unit were called to the scene and arrived approximately thirty to forty-five minutes later.

Investigator Veverly Hill (“Investigator Hill”) of the narcotics unit got the consent form, which Mr. Stokely had already signed, and reviewed it with him again. Mr. Stokely, who was still handcuffed, accompanied the officers in the search of the house and was seated in the living room in a position to see into the master bedroom at the time that the firearms were seized. Investigator Morrell seized a twelve gauge shotgun from under the bed and a nine millimeter pistol from between the mattresses of the bed in the master bedroom. While Mr. Stokely was seated on the living room couch, Investigator Hill inventoried the marijuana and drug paraphernalia seized from the residence.

II. Analysis

A. Standard of Review

As required by 28 U.S.C. § 636(b)(1), the Court has undertaken a de novo review of those portions of the R & R to which the government has objected. In doing so, the Court has carefully considered Magistrate Judge Shirley’s R & R [Doc. 27], the underlying and supporting briefs, the hearing transcript, the parties’ supplemental briefs [Docs. 14, 15, 19, 20, 21, 26], and the government’s objections [Doc. 29], all in light of the relevant law. For the reasons set forth herein, the Court will overrule the government’s objections [Doc. 29], accept in whole the R & R [Doc. 27], and grant defendant’s motion to suppress [Doc. 14].

B. The R & R

The basis of defendant’s motion to suppress evidence is two-fold, (1) that she never consented to the search of her residence, and (2) that the consent the officers allegedly obtained from Mr. Stokely was not voluntary. The government’s objections to the R & R pertain to the issue of whether Mr. Stokely’s consent to the search of the residence was valid and voluntary.

As to this issue, the magistrate judge found that Mr. Stokely was seized within the meaning of the Fourth Amendment when Detective Gibson placed him in handcuffs. Judge Shirley noted that at the time Detective Gibson seized Mr. Stokely at his residence, she had the following information: (1) Mr. Stokely lived at the residence, the same residence as defendant, and there was a warrant for defendant’s arrest; (2) defendant was not at the residence but had been arrested at another location; (3) defendant had told her arresting officers there was a firearm at the residence; (4) Mr. Stokely was on his way to the residence to meet law enforcement officers; (5) and Detective Gibson was to detain Mr. Stokely until the ATF arrived at the residence. As to the specific facts Detective Gibson knew about Mr. Stokely at the time she arrived at the residence and placed him in handcuffs, Judge Shirley found that she knew:

[T]hat (1) he was the Defendant’s husband, (2) that he worked at the railroad, and (3) that he lived at the residence the officers wanted to search.

[Doc. 27, pp. 30-31 (numbers added)]. The magistrate judge then found that based on the totality of the circumstances and the information known by Detective Gibson, she did not have reasonable suspicion to detain Mr. Stokely because neither she nor any other officer possessed “specific and articulable facts” that Mr. Stokely was involved or about to be involved in criminal activity and that none of the facts they did possess “is remotely suggestive of criminal activity.” [Id., p. 31].

As part of this finding, Judge Shirley also considered the government’s claim that Detective Gibson had knowledge of one other fact supporting her reasonable suspicion. Specifically, the government claims that upon Detective Gibson’s arrival at the Stokely residence to await Mr. Stokely, she observed a marijuana plant in the backyard of the residence and her knowledge of this plant was part of what established her reasonable suspicion to detain Mr. Stokely.

The magistrate judge, however, found this claim regarding the marijuana plant to be unsubstantiated for the following reasons:

First, Detective Gibson never mentioned seeing a marijuana plant in the backyard of the Stokely residence and when Detective Gibson was cross-examined by defense counsel about her actions while she awaited Mr. Stokely, she never mentioned the marijuana plant and she testified only that she waited in her car for Mr. Stokely to arrive. Second, Judge Shirley noted that the only evidence regarding when the marijuana plant was discovered was when Agent Bobich testified that Detective Gibson discovered it when she “first arrived at the house and, and [sic] was waitingf.]” [Doc. 27, p. 31]. Judge Shirley noted that this statement could mean the discovery of the plant occurred either before Detective Gibson approached Mr. Stokely and handcuffed him or after- — while Detective Gibson was waiting for Agent Bobich.

Judge Shirley also noted that Investigator Morrell testified that after defendant was transported from the residence, he helped to secure the area around the house and he too did not testify about any marijuana plant. Next, Judge Shirley noted that there was no evidence of any discussion of a marijuana plant between Detective Gibson, Officer Scalf, and Mr. Stokely as they awaited Agent Bobich, defendant, and the other officers, and the topic of their conversation was limited to casual conversation. Finally, the magistrate judge noted that the narcotics unit was only called to the residence after the security sweep of the house. After observing that the government bears the burden of proving Mr. Stokely’s valid consent, Judge Shirley found that based on the absence of evidence regarding the marijuana plant, the government did not meet its burden of proving that the plant was part of any reasonable suspicion Detective Gibson had to detain Mr. Stokely.

Having found the detention of Mr. Stokely to be unconstitutional in its inception due to lack of reasonable suspicion, the magistrate judge then inquired whether the intrusiveness of the stop was reasonably related to the situation by reviewing the reasonableness of Detective Gibson’s actions in the context of the circumstances at the time of the detention [Doc. 27, p. 33]. Judge Shirley noted the government’s contention that Detective Gibson reasonably handcuffed Mr. Stokely for her own safety, given that Detective Gibson was aware that there were guns at the residence and her knowledge that the police were investigating an armed robbery by defendant [Id]. The magistrate judge noted that Mr. Stokely was larger than Detective Gibson but found that, beyond this, “nothing in the evidence suggests that [Mr. Stokely] was either armed or dangerous[,]” and the size disparity issue evaporated once the second officer, Officer Scalf, arrived at the residence five minutes after Detective Gibson placed Mr. Stokely in handcuffs [Id., pp. 34-35]. Judge Shirley also found that the twenty-five minutes in which Mr. Stokely remained in handcuffs was time not reasonably related to the circumstances and the officers did not spend this time finding evidence to confirm or dispel any reasonable suspicions Detective Gibson may have had about Mr. Stokely. Accordingly, Judge Shirley found that the illegal detention of Mr. Stokely was “tantamount to an arrest without probable cause[]” [Id., p. 36], nothing occurred between Mr. Stokely’s initial illegal seizure and his consent save for the same unconstitutional conduct, nothing occurred to dissipate the taint of the initial seizure, and thus, any subsequent consent given by Mr. Stokely to search the residence was vitiated.

Notwithstanding his prior determination that Mr. Stokely’s detention was illegal and vitiated his subsequent consent, Judge Shirley also found that Mr. Stokely was subjected to unjustified physical force and that he experienced “more subtle forms of coercion” that were so coercive that he could not have voluntarily consented to the search [Doc. 27, pp. 41-42]. The magistrate judge found the following to be evidence of subtle forms of coercion: that Mr. Stokely’s son, whom Investigator Hill testified was a “young boy,” was placed in handcuffs; the number of officers that were present at the time Mr. Stokely signed the consent form (even though Mr. Stokely testified that he was not intimated by the officers); that Mr. Stokely did not receive Miranda warnings but was notified by the consent-to-search form that the fruits of the search could be used as evidence; and the lack of evidence showing that Mr. Stokely was experienced with the criminal justice system [Id., p. 42],

The magistrate judge also rejected the government’s argument that even if the Court determined that the officers did not have valid consent, the exclusionary rule should not be applied to the results gleaned from the search because Detective Gibson had a good-faith belief that she had reasonable suspicion to detain Mr. Stokely. Judge Shirley disagreed, finding that Detective Gibson’s decision to detain Mr. Stokely was based on her own erroneous assessment that the detention was necessary and legal and thus, not the type of Fourth Amendment violation that could be deterred by exclusion of the evidence.

C. The Government’s Objections

The government makes three objections to the R & R. First, the government argues that Detective Gibson had reasonable suspicion to detain Mr. Stokely because a totality of the circumstances supports a finding of objective reasonable suspicion that criminal activity was afoot at the Stokely residence given that Detective Gibson saw the marijuana plant “when she first arrived at the residence.” Second, the government argues that because Mr. Stokely was permissibly detained, his legal detention does not vitiate his subsequent consent to search and any finding by the magistrate judge that the officers used coercion or a show of force or threats was based on an erroneous interpretation of the facts. Third, the government argues that Mr. Stokely acted voluntarily in consenting to the search, he was not subject to subtle forms of coercion, and the record does not reflect that Mr. Stokely’s son was a “young child” or that the treatment of the son created a coercive environment.

The government also requests that the Court conduct an additional suppression hearing to clarify facts relevant to the discovery of the marijuana plant and the circumstances surrounding Mr. Stokely’s son. In the alternative, the government requests a de novo review and hearing by this Court.

1. The Marijuana Plant

The government objects to the magistrate judge’s finding that Detective Gibson did not have reasonable suspicion to detain Mr. Stokely, given the discovery of the marijuana plant and the collective knowledge of the officers at the scene of defendant’s arrest. The government asserts that the evidence of record indicates that Agent Bobich testified that Detective Gibson saw the marijuana plant “when she first arrived at the residence that day” and therefore, the discovery of the plant, when considered with the other information available, gave Detective Gibson reasonable suspicion and probable cause to detain Mr. Stokely [see Doc. 29, p. 8]. The government also requests an additional evidentiary hearing to clarify the exact time at which Detective Gibson first discovered the marijuana plant.

While the government is correct that the Court has discretion to reopen or conduct an additional suppression hearing, the United States Court of Appeals for the Sixth Circuit has stated that “ ‘courts should be extremely reluctant to grant re-openings.’ ” United States v. Carter, 374 F.3d 399, 405 (6th Cir.2004) (citations omitted). The party requesting reopening must explain its failure to present the evidence initially and a court must evaluate that explanation and determine if it is both reasonable and adequate to explain why the moving party initially failed to introduce evidence that may have been essential to meeting its burden of proof. See Carter, 374 F.3d at 406; see also United States v. Kithcart, 218 F.3d 213, 219-20 (3d Cir.2000). Generally, absent any new evidence or evidence that was unobtainable before the original suppression hearing, or any new issues that became relevant since the initial hearing, the reopening of a suppression hearing is unwarranted. See United States v. Watson, 391 F.Supp.2d 89, 94-95 (D.D.C.2005).

In this case, the government has neither explained its failure to present testimony from any of the officers who testified at the hearing regarding when the marijuana plant was discovered, nor has the government stated that this testimony must come from a witness who was unavailable or unobtainable at the time of the hearing. In the R & R, Magistrate Judge Shirley thoroughly reviewed the government’s failure to introduce, through any of the witnesses it placed on the stand, evidence regarding the discovery of the marijuana plant. Not only did Judge Shirley point out that Agent Bobich’s testimony regarding the marijuana plant was “unclear” and subject to several different meanings, he noted that Detective Gibson never mentioned the marijuana plant at all and, when questioned about her actions upon arriving at the Stokely residence, Detective Gibson only testified that she “[s]at in her car.” [Doc. 19, p. 98]. Moreover, when questioned about why she handcuffed Mr. Stokely, Detective Gibson stated only that it was for her “safety and his.” [Id., p. 88]. Moreover, the government has not proffered, in their objection, when or how Detective Gibson observed the marijuana plant, only reiterating what was stated at the hearing — that the marijuana plant was discovered, according to Agent Bobich, when Detective Gibson “first arrived at the residence that day.” This is the exact same testimony that was unclear at the hearing.

For these reasons, the Court hereby overrules the government’s first objection and denies the government’s request to reopen the suppression hearing or for a de novo hearing before this Court.

2. Vitiation of Subsequent Consent to Search

The government also objects to the magistrate judge’s finding that Mr. Stokely was impermissibly detained, and that his illegal detention vitiated his subsequent consent to the search. The government argues that Mr. Stokely was “permissibly detained due to the ongoing investigation into the marijuana in his backyard that was observed prior to his arrival, due to the hotel robbery investigation, and due to the potential for firearms illegally possessed at the residenee[.]” [Doc. 29, p. 10]. However, as discussed previously, there was no evidence introduced at the hearing as to when Detective Gibson first discovered or had knowledge of the marijuana plant and this Court declines to accept, from the government’s assertion alone, that Detective Gibson had knowledge of this plant before she placed Mr. Stokely in handcuffs. In regard to the other two reasons given by the government, the Court notes, as did the magistrate judge, that these two reasons, while suggestive of criminal activity on the part of defendant, are not suggestive as to criminal activity on the part of Mr. Stokely [see Doc. 27, pp. 30-31],

Moreover, unlike the ease of United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), cited by the government, Judge Shirley found, and this Court agrees, that Mr. Stokely was seized within the meaning of the Fourth Amendment when he was placed in handcuffs upon his arrival at his residence, and the government has not proven that this seizure was pursuant to a reasonable suspicion of criminal activity on the part of Mr. Stokely [Doc. 27, pp. 28-29]. See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) (discussing the test for a seizure); see also United States v. Smith, 594 F.3d 530, 536 (6th Cir.2010). Because nothing happened in the intervening time between Mr. Stokely’s seizure and his consent— besides more of the same conduct on the part of the officers — the Court cannot conclude that Mr. Stokely’s subsequent consent was valid and voluntary.

Accordingly, the Court agrees with the comprehensive analysis undertaken by the magistrate judge and hereby overrules the government’s second objection in regard to whether Mr. Stokely’s subsequent consent was vitiated.

3. Coercive Environment

In the third objection, the government argues that Mr. Stokely acted voluntarily in giving his consent to the search, that he was not subject to subtle forms of coercion, and that the record does not reflect that Mr. Stokely’s son was “young” or that the son’s treatment created a coercive environment. The government asserts that the magistrate judge relied on an erroneous interpretation of the facts and did not examine the facts pertaining to coercion or improper conduct at the time of the officers’ request to Mr. Stokely to search the residence. Specifically, the government focuses on the magistrate judge’s reference to Mr. Stokely’s son as a “young child,” a reference the magistrate judge took from Investigator Hill’s description of Mr. Stokely’s son as a “young boy.” [Doc. 27, pp. 41-42]. The government argues there is no evidence of record that Mr. Stokely’s son was a “young boy” but rather, that his son is actually a young male. The government also asserts that there was no evidence that Mr. Stokely was concerned about the handcuffing of his son or any evidence that the actions of the officers were unreasonable under the circumstances. Further, the government asserts that at no point during the suppression hearing did any party explore details regarding Mr. Stokely’s son and the magistrate judge did not inquire into the son’s age or the circumstances of his presence.

As an initial matter, the Court notes that “[i]t is the government’s burden, by a preponderance of the evidence, to show through ‘clear and positive testimony’ ” that a defendant’s valid and voluntary consent to a search was obtained. United States v. Worley, 193 F.3d 380, 385 (6th Cir.1999) (citations and internal quotes omitted). As such, this Court’s inquiry into this matter is focused not on whether the magistrate judge inquired into areas of testimony at the hearing to explore whether Mr. Stokely’s consent was valid and voluntary, but whether the government put on clear and positive evidence showing as such.

Further, while the Court agrees that there was no substantial testimony at the hearing indicating that Mr. Stokely was extremely concerned with the handcuffing of his son, the Court disagrees that there was absolutely no evidence in the record that Mr. Stokely’s son was a young child. In fact, the only evidence this Court has gleaned from the record regarding the age of Mr. Stokely’s son is Investigator Hill’s description of him as a “young boy” and Mr. Stokely’s reference to him as his “son.” As such, to the extent the government is requesting an additional hearing to clarify facts pertaining to the age of Mr. Stokely’s son, the Court respectfully denies this request because the government has not asserted that this testimony requires a witness who was unavailable or unobtainable at the time of the hearing and the government has not explained its failure to present testimony regarding the age of Mr. Stokely’s son or the circumstances surrounding his handcuffing.

In addition, while Judge Shirley found that the handcuffing of Mr. Stokely’s son and the initial illegal seizure and detention of Mr. Stokely, in particular, was evidence of coercion, the magistrate judge also pointed to several other factors he found indicative of subtle forms of coercion. Judge Shirley noted that Mr. Stokely was detained for a significant length of time, especially in light of the fact that he was illegally detained and unreasonably handcuffed, that he was subject to unjustified physical force upon his arrival at his residence, that he was inexperienced with the criminal justice system, that as many as five police officers were present on the porch at the time Mr. Stokely signed the consent to search (despite Mr. Stokely’s assertion that he was not intimated by the officers), and that Mr. Stokely did not receive Miranda warnings but was only notified by the consent-to-search form that the fruits of the search could be used as evidence.

As noted by the magistrate judge, “the fact of custody alone has never been enough in itself to demonstrate a coerced ... consent to search,” United States v. Crowder, 62 F.3d 782, 787 (6th Cir.1995), and a number of other factors can lead to a finding of voluntary consent, including “the absence of any overt act or threat of force ... the absence of any promises to the defendant or any indication of ‘more subtle forms of coercion that might flaw his judgment’; the defendant’s giving his post-arrest consent on a public street and not in the confínes of the police station; the absence of any indication that the defendant was a ‘newcomer to the law, mentally deficient, or unable in the face of custodial arrest to exercise a free choice’; and the defendant’s receiving Miranda warnings and notification that the results of the search could be used against him.” Crowder, 62 F.3d at 787 (quoting United States v. Watson, 423 U.S. 411, 424-25, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)).

Based upon the Court’s own review of the evidence Judge Shirley found to be indicative of subtle forms of coercion, the testimony at the hearing, the relevant law, and after thoroughly considering the government’s objections, the Court is in agreement with the magistrate judge that the circumstances of Mr. Stokely’s detention indicate subtle forms of coercion that rendered Mr. Stokely’s consent invalid and not voluntary.

Accordingly, the Court hereby overrules the government’s third objection.

III. Conclusion

For the reasons above, the Court OVERRULES the government’s objections [Doc. 29] to Magistrate Judge Shirley’s Report and Recommendation. The Court ACCEPTS IN WHOLE the Report and Recommendation [Doc. 27]. Defendant’s Motion to Suppress Evidence [Doc. 14] is hereby GRANTED.

REPORT AND RECOMMENDATION

C. CLIFFORD SHIRLEY, JR., United States Magistrate Judge.

All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. This case came before the Court on April 28, 2010, for an evidentiary hearing on the Defendant’s Motion to Suppress Evidence [Doc. 14]. Assistant United States Attorney Melissa M. Millican appeared on behalf of the Government. Attorney Michael B. Menefee represented the Defendant, who was also present. The parties presented testimony and argument on the pending motion. At the conclusion of the hearing, the Court requested that the parties file supplemental briefs on a law enforcement officer’s authority to handcuff a resident upon his arrival at his home prior to the search of the home pursuant to the alleged consent of the resident. The parties filed their supplemental briefs [Docs. 20 and 21] on May 6, 2010, and the Government filed a reply brief [Doc. 23] on May 10, 2010. The Court took the motion, the parties’ filings, and the evidence under advisement on the following day.

I. POSITIONS OF THE PARTIES

The Defendant stands charged [Doc. 1] with a single count of being a felon in possession of a firearm on September 10, 2009. She asks the Court to suppress all evidence, including two firearms, seized in the September 10, 2009 search of her home. She argues that the search violated the Fourth Amendment because the searching officers did not have a search warrant, no exigent circumstances existed, and she refused to give consent to search. She also contends that her husband did not voluntarily consent to the search.

The Government argues that law enforcement searched the Defendant’s home subject to a valid consent to search. It maintains that the Defendant did not refuse consent but, instead, deferred to her husband. It asserts that the Defendant’s husband voluntarily consented to the search of his home, even though he was lawfully detained at the time he gave consent. Finally, the Government contends that if the Court finds the consent to be invalid, application of the exclusionary rule is unwarranted because the officers did not engage in any deliberate, flagrant, or patently unconstitutional violation of the law.

II. SUMMARY OF THE TESTIMONY

The Government presented Special Agent Rebecca Bobich, who testified that she had worked in law enforcement for eighteen years and presently worked for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). On September 10, 2009, she was present at the Family Dollar on Magnolia Avenue when the Defendant was arrested pursuant to an arrest warrant for the armed robbery of the Holiday Inn in Dandridge, Tennessee. The Dandridge Police Department had requested ATF’s assistance in the ongoing investigation and possible federal prosecution of this armed robbery. Agent Bobich testified that following the Defendant’s arrest, Bobich orally advised the Defendant of her Miranda rights at 1:29 p.m. Agent Bobich subsequently advised the Defendant by reading a rights waiver form to her and having her initial each line. The Defendant indicated that she understood and waived her rights and then signed the form at 1:55 p.m. Agent Bobich and Task Force Officer Glen Morrell then signed the form as witnesses. The Defendant also signed a consent form for the search of her vehicle at 1:45 p.m.

Agent Bobich stated that she then asked the Defendant if she would consent to a search of her residence, but the Defendant deferred to her husband Toby Stokely. The Defendant wanted Agent Bobich to contact Mr. Stokely to get his permission to search their house and provided his cellular telephone number. The Defendant did not tell Agent Bobich that Bobich could not search her home. The Defendant told Bobich that she could use the Defendant’s cellular telephone to call Mr. Stokely because he would not answer a call from an unknown number. Agent Bobich called Mr. Stokely on her own cellular telephone and left a message at 1:56 p.m., that his wife was in custody and that he needed to call Bobich. Mr. Stokely returned her call. Agent Bobich explained to Mr. Stokely that his wife had been arrested, that law enforcement had asked her for consent to search their home, and that the Defendant wanted Mr. Stokely to make the decision on that matter. She asked if Mr. Stokely would meet law enforcement at his house. Mr. Stokely agreed to meet at his house and consented to a search.

Agent Bobich testified she later learned that two Knox County Sheriffs Department Officers Walter Schmidt and Matthew Sexton also spoke with the Defendant regarding consent to search her home. This conversation was captured on an audio and video recording [Exh. 3] from Knoxville Police Department (KPD) Officer Hopkins’ in-car camera. At one point on the recording, an officer tells the Defendant that he is not getting an answer. Less than a minute later, the officer tells the Defendant, “He said he’s not going to go ahead and do that, Beverly; it’s up to you.” To Agent Bobich’s knowledge, at the time that she called Mr. Stokely, no other law enforcement officer had contacted him. While at the scene of the arrest, the Defendant told Agent Bobich that she was storing her mother’s twelve-gauge shotgun, which she kept in her house under her side of the bed. Agent Bobich testified that she wanted to search the Defendant’s house for the firearm and for evidence from the hotel robbery.

Agent Bobich stated that she rode with Officer Morrell and the Defendant to the Defendant’s house. Other officers also met them at the residence. During the trip to her home, the Defendant did not object to law enforcement going into her residence, request that the officers obtain a search warrant, or withdraw her deferral of the decision to her husband. Once they arrived at the Defendant’s residence, the Defendant was put in a Knox County Sheriffs Office (KCSO) car and transported to Dandridge within minutes of her arrival at her residence.

Agent Bobich testified that when she arrived at the Defendant’s home, Knox County Sheriffs Detective Krystal Gibson was there with Mr. Stokely. Mr. Stokely was handcuffed and was sitting on the front porch talking. Several officers, including Agent Bobich, approached Mr. Stokely and explained what was happening again. Mr. Stokely seemed relaxed and understood what was occurring. Detective Gibson reviewed KCSO’s consent-to-search form with Mr. Stokely. Mr. Stokely signed the consent to search form, which Detective Gibson and Agent Bobich also signed as a witnesses. Officers Kenneth Lodwick, Walt Schmidt, and Morrell were standing nearby when Mr. Stokely executed the consent form. Agent Bobich denied ever telling the Defendant or Mr. Stokely that she was obtaining a search warrant. She said that she did not threaten, deceive, or coerce Mr. Stokely into signing the form. She also denied folding the consent form in half, and she identified the original consent-to-search form [Exh. 4], which did not bear a paper crease. Agent Bobich stated that at the time Mr. Stokely signed the consent form, it was not folded or bent in such a way that he could not read it. She asserted that, instead, the form was explained to him and he appeared to understand it.

Agent Bobich testified that after Mr. Stokely signed the consent form, officers did a brief security sweep of the residence to confirm that no one was inside. Then, Agent Bobich called for the KCSO forensic unit to document the items found in the search. The narcotics unit was also called to the house to perform a drug seizure because Detective Gibson had observed a large marijuana plant in the backyard when she first arrived at the house and marijuana and another marijuana plant were observed during the security sweep. During the thirty to forty-five minutes before those units arrived, the officers and Mr. Stokely waited on the porch. Agent Bobich asked Mr. Stokely if there were any firearms were in the house. Mr. Stokely told her that a twelve-gauge shotgun was under the Defendant’s side of the bed and that a nine millimeter pistol was somewhere in the house. Once the narcotics unit arrived, Officer Yeverly Hill took the consent-to-search form from Agent Bobich and reviewed it with Mr. Stokely again. Mr. Stokely did not withdraw his consent. Mr. Stokely accompanied the officers during the search of the house, and he did not withdraw consent or ever ask them to get a search warrant. Mr. Stokely could see the agents as they recovered the firearms from the master bedroom. A twelve-gauge shotgun was recovered from under the bed, and a nine millimeter handgun was taken from between the mattresses. Mr. Stokely remained in handcuffs until the guns were taken into custody.

On cross-examination, Agent Bobich testified that the hotel robbery occurred on December 28, 2008, and the Defendant was arrested on September 10, 2009. In addition to Agent Bobich, two local law enforcement patrol cars stopped the Defendant. Once the Defendant was pulled over, she was ordered out of her car, arrested, and placed in a patrol car. The Defendant signed her Miranda rights waiver approximately forty minutes after she was stopped. In addition to Agent Bobich, two other officers asked the Defendant for consent to search her home. The Defendant did not give consent to search her home. Agent Bobich did not know to what the Defendant was referring when she said “I’m not going to do that” on the audio/video recording [Exh. 3]. Agent Bobich said that she was not in the patrol car with the Defendant when Bobich called Mr. Stokely and left a message. Twenty to thirty minutes elapsed between Agent Bobich’s telephone call to Mr. Stokely and her arrival at the Defendant’s home. Mr. Stokely returned her call, and in their short telephone conversation, she told Mr. Stokely that they had arrested his wife and that his wife wanted him to make the decision of whether to permit a search of their home. Mr. Stokely said he was going to his house and that it would take him a few minutes to get off work and get there. Agent Bobich did not recall whether Mr. Stokely gave consent to search the house during their telephone conversation.

Agent Bobich testified that it took approximately ten minutes to travel from the Family Dollar store to the Defendant’s residence. When she arrived at the residence, Mr. Stokely, Detective Gibson, and another officer whom Gibson had called for back up were already there. Mr. Stokely was already handcuffed and remained in handcuffs until the guns were secured. Within minutes of her arrival, Mr. Stokely was given the consent form. He signed the consent form at 2:35 p.m. Agent Bobich did not recall whether Mr. Stokely’s handcuffs were removed for him to sign the form or if he signed while wearing them. At the time, Agent Bobich, Detective Gibson, and Officer Kenny Lodwick were on the front porch with Mr. Stokely. Officers Morrell and Walt Schmidt were also standing nearby. Right after receiving Mr. Stokely’s consent to search the house, the officers performed a security sweep. The Defendant was transported from the residence at 2:38 p.m. Within five minutes of the security sweep, the forensic unit was called to report to the residence. The forensic unit arrived thirty to forty-five minutes later.

Agent Bobich stated that she had reviewed her recollection of the events of that day with the Assistant United States Attorney while other officers were in the room. Officer Lodwick was there, and Agent Bobich recalled that his account of the events of that day was similar to hers.

On redirect examination, Agent Bobich testified that the Defendant repeatedly deferred consent to search her home to her husband. She stated that she did not get a search warrant for the Defendant’s residence because she had consent to search it. She testified that she would prefer to have consent to search a home from the homeowner, rather than to search pursuant to a search warrant, because the owner walking through the home with her could show her where items were located. Agent Bobich reiterated that she never told the Defendant or Mr. Stokely that she had a search warrant.

KCSO Detective Matt Sexton testified that he had worked in law enforcement for fifteen years. He stated that he was on the scene on September 10, 2009, when the Defendant was arrested. He spoke briefly with the Defendant about consent to search her home. The Defendant did not give consent but deferred to her husband. He stated that he began filling out the consent-to-search form because he believed that the Defendant might give consent. His partner Detective Walt Schmidt tried to call the Defendant’s husband but did not reach him. Although the Defendant offered to call her husband on her own cellular telephone, Detective Sexton did not permit her to do so for officer safety and to prevent destruction of evidenee. He and Detective Schmidt tried to get the Defendant to make a decision regarding consent to search her home, but she continued to defer to her husband.

On cross-examination, Detective Sexton testified that either he or Detective Schmidt asked the Defendant for consent to search her home. Detective Sexton could not recall the exact words the Defendant used to defer to her husband. The Defendant never gave him consent to search her home, and he did not speak with her husband. He did not go to the Stokely home that day.

KPD Investigator Glen Morrell testified that he had worked in law enforcement for approximately twelve years and that he is assigned to the ATF Task Force. He was at the scene of the Defendant’s arrest on September 10, 2009, and witnessed Agent Bobich advise the Defendant of her Miranda rights. The Defendant waived her rights and signed the rights waiver form. He also observed the Defendant consent to the search of her vehicle and sign a consent-to-search form. The Defendant agreed that she understood her constitutional rights with regard to both the rights waiver and the search of her vehicle. When Agent Bobich asked the Defendant if she would also consent to the search of her home, the Defendant said she preferred for her husband to make the decision. The Defendant then gave Agent Bobich her husband’s telephone number. Agent Bobich called Mr. Stokely and left a message. Mr. Stokely called Agent Bobich back.

Investigator Morrell stated that he and Agent Bobich transported the Defendant to her residence. Once there, he remained in the car with the Defendant, while Agent Bobich got out. During the time that he was waiting in the car with the Defendant, the Defendant did not say that she did not want law enforcement to go into her house, nor did she ever mention a search warrant. He did not ever mention a search warrant to the Defendant. After the Defendant was transported, Investigator Morrell stayed at the Defendant’s house and heard Agent Bobich and Detective Gibson advise Mr. Stokely of the consent-to-search form. Investigator Morrell was standing on the porch when Investigator Veverly Hill arrived. Investigator Hill also advised Mr. Stokely of the consent-to-search form. Mr. Stokely never withdrew consent or asked law enforcement to obtain a search warrant. Investigator Morrell did not hear anyone tell Mr. Stokely that they were in the process of obtaining a search warrant.

Investigator Morrell testified that he and Agent Bobich searched the Defendant’s bedroom for firearms. Detective Gibson was also present. Mr. Stokely was sitting in the living room and could see and hear the officers searching his bedroom. Investigator Morrell found a shotgun under the bed and a handgun between the mattresses.

On cross-examination, Investigator Morrell stated that when Agent Bobich asked the Defendant for consent to search her home, the Defendant said that she did not mind but that she wanted her husband to make the decision. He could not recall the Defendant’s exact words. He was not aware of anyone else asking the Defendant for consent to search her home, but he arrived on the scene a little after the Defendant was stopped. When Mr. Stokely returned Agent Bobich’s call, Agent Bobich spoke with him briefly.

Investigator Morrell testified that after they arrived at the Defendant’s house, he remained in the car with the Defendant for about ten minutes, after Agent Bobich got out. Investigator Morrell did not see Mr. Stokely sign the consent form, but he was in standing front of the house and heard Investigator Hill review the consent form with Mr. Stokely a second time before the search commenced. He stated that he heard Agent Bobich recount her recollection of the events of September 10, 2009, at a pretrial preparation meeting at the U.S. Attorney’s office.

On redirect examination, Investigator Morrell stated that after the Defendant was transported from her residence, he helped secure the area around the house and then assisted with the search. He estimated that thirty to forty-five minutes elapsed before the search began. He said that nothing anyone said during the pretrial preparation meeting affected his testimony.

KCSO Detective Krystal Gibson testified that she has worked in law enforcement for nine years and is presently in the Major Crimes Unit. She stated that on the morning of September 10, 2009, she went to the Defendant’s house to serve an arrest warrant. No one was home, so she left to eat lunch. After hearing that the Defendant’s vehicle had been stopped, Detective Gibson returned to the residence alone. Mr. Toby Stokely, a “clean-cut, larger gentleman,” arrived, and she handcuffed him for her safety. Less than five minutes later, another officer arrived.

Detective Gibson stated that she subsequently advised Mr. Stokely of his constitutional rights using KCSO’s consent-to-search form, while they stood on the front porch with Agent Bobich. During this time, the atmosphere was relaxed. Mr. Stokely was polite and cooperative. He did not appear to be under the influence of drugs or alcohol. Detective Gibson wrote on the consent form that Mr. Stokely reported having attended two years of college. Mr. Stokely appeared to understand his rights, and she explained to him that he could withdraw consent at any time. Mr. Stokely consented to the search of his house and signed the consent form. She and Agent Bobich signed the consent form as witnesses. Detective Gibson stated that no one tricked Mr. Stokely by presenting a folded paper for him to sign without explaining what it was. Also, no one mentioned a search warrant to him. Detective Gibson believed that Mr. Stokely’s consent was voluntary, knowing, and uncoerced. After Mr. Stokely signed the consent form, Detective Gibson called for the forensic unit, which arrived within thirty to forty minutes. Investigator Veverly Hill also reviewed the consent-to-search rights with Mr. Stokely that day, and he again gave consent to search his home.

Detective Gibson stated that she spoke with the Defendant briefly at her residence when retrieving the Defendant’s purse so that she could take it with her. During their brief encounter, the Defendant did not say that she did not want law enforcement going into her home or mention a search warrant. Likewise, Detective Gibson did not mention a search warrant to the Defendant.

On cross-examination, Detective Gibson testified that she was not at the scene of the Defendant’s arrest, and she never heard the Defendant give consent to search her home. Detective Gibson stated that she was at the Defendant’s house that day to serve an arrest warrant for the Defendant. She left early from lunch upon hearing that the Defendant’s car had been spotted, went to the Defendant’s house, and sat in her car until Mr. Stokely arrived in an SUV or truck. Detective Gibson called for a backup unit and then approached Mr. Stokely. As Mr. Stokely got out of his vehicle, Detective Gibson identified herself and asked him to turn around and place his hands behind his back to be handcuffed. She said that Mr. Stokely was not under arrest but that she handcuffed him behind his back for officer safety. She explained to Mr. Stokely that he was not under arrest. Although she would not have removed the handcuffs at Mr. Stokely’s request at this time, she said that she would have allowed him to leave. Within five minutes of handcuffing Mr. Stokely, Officer Scalf arrived. Detective Gibson stated that she then changed Mr. Stokely’s handcuffs to “double cuffs” by linking two sets of handcuffs together in order to make Mr. Stokely more comfortable due to his larger stature. She and Officer Scalf stood in the driveway, talking with Mr. Stokely. Not more than thirty minutes later, another group of officers arrived. She did not recall whether Mr. Stokely asked for a drink or cigarettes during this time.

Detective Gibson stated that she and Mr. Stokely were on the front porch when he signed the consent form. She testified that she removed the handcuffs for Mr. Stokely to sign the consent form, but she did not recall if she put them back on him. Although she did not remember reading the consent form to Mr. Stokely, she knew that she did so because that is her normal practice. Agent Bobich was standing close by when Mr. Stokely signed the form. She did not recall Mr. Stokely asking for a copy of a search warrant. She did not recall whether a security sweep of the house was performed before or after Mr. Stokely signed the consent form. She and Agent Bobich performed the security sweep for officer safety. The search was completed and the officers left sometime after 4:00 p.m. that day. She did not recall at what point she removed Mr. Stokely’s handcuffs.

On redirect examination, Detective Gibson testified that after lunch, she waited for Mr. Stokely to arrive at his residence in the parking lot of an adjacent assisted living facility. She had been informed that Mr. Stokely was coming to meet law enforcement at his house. She stated that if Mr. Stokely had wanted to leave, she would have removed the handcuffs and permitted him to leave the property, but that as long as he remained there, he had to be in handcuffs. She said that Mr. Stokely was quite a bit larger than her and that she had been informed that there were weapons at the house. Detective Gibson stated that the protective sweep took two to three minutes. On recross-examination, Detective Gibson reiterated that she did not remember reading the consent form to the defendant but her normal practice was to read it.

The Government next called KCSO Narcotics Investigator Veverly Hill, who testified that she has worked in law enforcement for six years. She stated that on September 10, 2009, she was called to the Defendant’s residence to seize marijuana plants in the back yard. When she arrived at the residence, Agent Bobich and Detective Gibson were there along with other officers. The Defendant had already been transported from the residence. She advised Mr. Toby Stokely of his rights using a consent-to-search form. Investigator Hill stated that she advised him of his rights again because it is her policy always to make sure an individual understands his rights and the consent form before she enters their home. She explained to Mr. Stokely that he could withdraw his consent at any time. Mr. Stokely indicated that he understood his rights and consented to the search of his house. He never requested a search warrant, and Investigator Hill never told him that she had a search warrant. She stated that Mr. Stokely voluntarily gave consent to search his residence and that no one, including her, coerced, deceived, or tricked him into giving consent to search.

Investigator Hill stated that Mr. Stokely did not withdraw consent as she walked through the residence with him. Mr. Stokely remained handcuffed at that time. Although she was not the one who handcuffed Mm, Investigator Hill said that she too would have handcuffed him to preserve officer safety because there were guns in the house. At the time the guns were recovered from the master bedroom, Mr. Stokely was sitting on the couch in the living room while Investigator Hill inventoried marijuana plants and drug paraphernalia that she was seizing from the residence. She and Mr. Stokely could see and hear what was occurring in the bedroom, and Mr. Stokely did not withdraw consent.

On cross-examination, Investigator Hill testified that she first met with Mr. Stokely on the front porch of the house. Mr. Stokely was in handcuffs, and a young boy was on the porch with him. Agent Bobich, Detective Gibson, and two other officers from Investigator Hill’s unit were there. She retrieved the signed consent form from Agent Bobich and reviewed it with Mr. Stokely. Mr. Stokely accompanied her and another armed officer as they walked through the house. Investigator Hill and two other armed officers were in the living room while Mr. Stokely was seated on the couch. On redirect examination, Investigator Hill stated that during the walk through the house, Mr. Stokely’ hands were handcuffed in the front of his body.

The Defendant called Toby Stokely, who testified that he is a railroad foreman and has been married to the Defendant for almost twelve years. He was at work around 2:00 p.m., on September 10, 2009, when he received a telephone call, which he believed to be from his wife, but which turned out to be from a female ATF agent. The agent told him that his wife had been arrested on a warrant. She told him that she had a warrant for him too and that if he did not come to his house, she would arrest him at his job site. Mr. Stokely said he agreed to go home. He then told his boss that something had come up, left work, and went home. During the seven-minute drive, he called his mother and told her that his wife had been arrested, that the agent said she had a warrant for him, and that they were going to pick him up at work if he did not come home. He told his mother that he did not know what was going on but that he would let her know when he found out.

Mr. Stokely stated that as he drove to the bottom of his driveway, he saw a female officer walMng toward him from “the old folks’ home.” As he got out of his truck and started to get his work tools, he glimpsed a police car coming down his driveway. The female officer walked up to him and told him that she had been instructed to detain him until an ATF agent arrived. The female officer asked what he had been reaching for, and he explained to her that he had been reaching into his truck for his radio and tools. She instructed him to step to the front of the truck and stated that she was handcuffing him for her protection. She handcuffed him and walked him to the front porch. At the time she handcuffed him, a male officer had also arrived. Mr. Stokely asked the officers if he could sit in a chair because his arthritis was bothering him, but they told him to remain seated on the concrete porch. Thirty minutes later, he asked if he could smoke a cigarette, and they permitted him to do so. He proceeded to smoke four or five cigarettes and remained on the porch with the officers for about one hour.

Mr. Stokely stated that a female ATF agent, whom he later identified as Agent Bobich, arrived with Jefferson City Detective Kenny Lodwick and the Defendant. Agent Bobich approached him, held up a paper, and said she was waiting on some officers to bring her the search warrant for Ms house. When Mr. Stokely questioned this, she stated that she had a search warrant relating to the robbery of a hotel in Jefferson City. About fifteen minutes later, Mr. Stokely’s son arrived. The officers handcuffed Mr. Stokely’s son and made him sit on the porch also.

Mr. Stokely testified that more police ears arrived at his residence, and the Defendant was taken away. After Agent Bobich spoke to the officers that had just arrived, she told Mr. Stokely that she had the search warrant. She told him that he needed to sign a folded piece of paper in order to get a copy of the search warrant. No one read that paper or any form to him. He signed the paper. Mr. Stokely did not think he could refuse the officers’ entry into his house because they had a search warrant. He did not walk through the house with the officers.

Mr. Stokely stated that a few minutes after Agent Bobich announced that she had a search warrant, Detective Kenny Lodwick came up to him and remarked that Mr. Stokely must be getting tired of seeing him. Mr. Stokely responded that he was tired of seeing Lodwick because Lodwick kept harassing his wife who had not done anything. Mr. Stokely stated that Detective Lodwick use to mow grass at the Holiday Inn where Mr. Stokely’s wife was the head of housekeeping. He said that the Defendant use to help Detective Lodwick with cases but when she stopped, Lodwick began harassing her and making sexual comments. Mr. Stokely advised the Defendant to stop helping Detective Lodwick when he began making the harassing comments. Mr. Stokely characterized Detective Lodwick as a “snake in the grass” and said that he would not have allowed Lodwick into his house that day if he had thought that he had a choice. He said that Detective Lodwick had been the first one to question the Defendant that day and appeared to be “running the show,” despite the presence of other law enforcement agencies.

Mr. Stokely testified that he was in handcuffs for three hours from the time that he arrived at his house until just after 5:00 p.m. that day. He said that he was handcuffed in front the entire time and that he was never “double cuffed,” despite requesting something wider due to old sports injuries. When he signed the document that the officers presented to him, he first thought it was an arrest warrant for him and then he thought that he was going to get a copy of the search warrant if he signed it. A male officer held the paper for him while he signed it because he was wearing handcuffs. He never told the officers to stop searching because he thought that they had a search warrant and that he could not stop them. At one point, he asked Agent Bobich when he could read the search warrant, and she told him that she would give him a copy later, after she got the search started.

On cross-examination, Mr. Stokely testified that when he spoke with Agent Bobich on the telephone, she did not say whether the warrant she had for him was a search warrant or an arrest warrant. Mr. Stokely said he thought she had an arrest warrant. When he got to his house, Detective Gibson handcuffed him in the front. He stated that it was possible that she handcuffed him in the back briefly and then moved the handcuffs to the front. While awaiting Agent Bobich, he talked with the Detective Gibson and the male officer at his home, but they did not know what was happening. Mr. Stokely said he was not intimidated at this time.

Mr. Stokely stated that Agent Bobich arrived an hour after Detective Gibson and the male officer. He said that about thirty to forty minutes later, after the last group of officers arrived, he signed a paper. He denied that Detective Gibson told him what the paper he signed said. He did not recall her asking him about his education level. He stated that he had one semester of college but that he might have told her that he had two years. Mr. Stokely said that when the off