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Unlawful entry into defendant’s home by police did not taint Defendant’s subsequent consent to search his home

In U.S. v. Welch the 11th Circuit found the entry into a defendant’s home was illegal, but the illegal entry did not taint the subsequent consent by the defendant to a search. Welch was charged with being a felon in possession and sentenced to 15 years as an Armed Career Criminal Act because he had three prior violent felony convictions. Welch moved to suppress the gun found in his home and the statements made in the police car because they were the result of an unlawful entry into his home. The district court did find the initial entry into Welch’s apartment was unlawful, but it found the Welch’s subsequent consent to the search was voluntary. The 11th Circuit agreed and affirmed the district court’s denial of the motion to. Here are the relevant facts.
1) While Broward County Sheriffs were searching for a suspect of a convenience store robbery, they had reason to belief the suspect could found at defendant Welch’s apartment.
2) After knocking at the door, someone answered the door but it was not the suspect. When the officers asked if anyone else was in the apartment, he said there was but did not say who.
3) The officers then entered without asking permission and did a “limited protective sweep,” looking for anyone inside that may be a threat to them. In a bedroom they found Welch in a bedroom talking on a cell phone, smoking joint, and minding a baby. Welch was taken onto the balcony.
4) The police then receive word on their radio that Jacobs had been arrested, so now they wanted to find the suspect’s gun.
5) The police asked the defendant for permission to search his apartment he refused. When the officers told him they would have to get a warrant, he orally consented and signed a written consent form.
6) A search of the apartment turned up Welch’s gun, but not the gun used in the robbery. Welch was put in the police van without handcuffs and questioned about the gun and he admitted it was his.

The 11th Circuit found the consent and admissions were not the “fruit of the poisonous tree” that being the unlawful sweep. The court found the consent voluntary. The Court considers three factors to decide whether a defendant’s consent was tainted by illegal police actions: (1) the time lapse between the illegal act and the search, (2) any intervening circumstance, and (3) the purpose and flagrancy of the unlawful government conduct. Here the factors found the illegal action did not taint the consent. Welch was standing on his balcony, not in handcuffs, and he initially refused to consent. He changed his mind was not with physical coercion. His consent was at the request of the police. The search was done for the protection of the police and not a subterfuge to intimidate and question the defendant. It was not done for the purpose of gaining consent.

The 11th Circuit found the consent to the search was not coerced. Though officers asked for consent minutes after entering the bedroom with guns drawn, Welch at first declined their request to search. The 11th Circuit found he was not coerced into changing his mind when the officers told him “Fine, but we’re going to have to get a search warrant.” The court found that this did not change his mind and that he only changed his mind when he was told “it would take a while” because the court surmised he would have to stand around doing nothing for a substantial period of time and that made him change his mind.

Prior conviction for strong arm robbery qualified for a violent felony enhancement
The Court found that Welch’s conviction for a strong arm robbery qualified to enhance his sentence under the Armed Career Criminal Act. Welch argued the conviction did not qualify as a violent felony. The 11th Circuit viewed the prior conviction from a categorical approach – looking at only the fact of conviction and the statutory definition of the prior offense. The conviction was pursuant to a Florida statute that criminalized stealing property from another person using force, violence, assault, or putting in fear. Welch argued that at the time of his conviction the amount of force required to violate the statute was too slight to satisfy the definition of a violent offense in the enhancement. When Welch pled guilty, the Florida law clearly established that the statute could include taking by stealth as in a pickpocket where the victim is not aware of the theft. The 11th Circuit found the prior conviction fell under the residual clause of the federal statute. It found the conduct encompassed by the elements of the offense present a serious potential risk of injury to another as for example a sudden purse snatching involves a substantial risk of physical injury to the victim as a victim’s natural reaction is likely to try to hold on to his or her property leading, it found, in many cases to serious injury. Just recently the Court reached the same conclusion in U.S. v. Chitwood.