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Appeal “Tanks” After Circuit Holds That Defendant Gave Implied Consent to Have K-9 Unit Present in His Apartment After Calling 911 to Report Prowler

On July 31, the Second Circuit issued a decision in United States v. Iverson (Kearse, Calabresi, Livingston) and affirmed the conviction of a defendant who had challenged the district court’s denial of his suppression motion and the district court’s mid-trial decision to excuse one of two black persons on the jury for cause right before summations based on an interview of the juror conducted in camera.  The decision presents an interesting set of facts and applies established law in the Second Circuit.


The events in the case took place in Tonawanda, New York, a suburb of Buffalo, New York, located near the Erie Canal.  On the evening of October 22, 2014, Elijah Iverson allegedly met a woman, “Candy,” at a liquor store who accompanied him back to his apartment.  After some time in Iverson’s apartment, the woman made a phone call from Iverson’s bathroom and then rushed out of the apartment, telling Iverson that she had to leave.  As Candy was leaving, Iverson saw on the landing below his second-floor apartment an unknown male in a hoodie holding a gun.  Iverson slammed the door and called 911, believing that he had been set up to be robbed.

Police officers responding to the call arrived at Iverson’s apartment and spoke to him about what occurred.  Based on those discussions, the officers realized that Iverson’s description of the suspect matched the description of a man who was being sought for robbing a pizza shop near Iverson’s apartment that same evening.  As a result, some of the officers went to the liquor store to try to identify the suspect from surveillance footage and an additional officer (Officer Costello) was dispatched to Iverson’s apartment building with his K-9 dog (Tank) to attempt to track the suspect.  Tank is a talented dog, trained not only to perform patrol work protecting officers and tracking suspects but also to detect narcotics.  Officer Costello and Tank explored the area around Iverson’s building for a trace of the suspect without success.  A larger group of officers, including Costello and Tank, decided then to speak with Iverson more to see if they could obtain additional details about the suspect.

When officers returned to Iverson’s apartment, the door was open.  The officers announced their presence and asked whether they could enter to speak with him.  Iverson gave them permission to enter.  The officers entered, with Officer Costello and Tank remaining in the interior entryway of the apartment.  Although the officers did not announce that they also had Tank with them or that the dog could alert to the odor of narcotics, Iverson had an unobstructed view to where Officer Costello and Tank were located and he did not voice any objection to Tank’s presence in the apartment.

While in the apartment, Officer Costello did not give Tank a command to search for drugs.  However, after a few minutes, Tank became agitated and pulled Officer Costello to the kitchen in a manner suggesting that he had detected the presence of drugs.  The officers confronted Iverson about their suspicion that there might be contraband in the apartment and, after initial denials, Iverson told the officers that he had some marijuana, took a small bag of it out of a kitchen drawer, and provided it to the officers.  After additional questioning of Iverson and the subsequent execution of a search warrant, police officers eventually recovered more marijuana, cocaine, crack, an assault rifle, and ammunition from the apartment.  Based on the evidence seized, Iverson was indicted on three drug-related counts and two firearm-related counts.

Procedural History

Iverson sought to suppress the tangible evidence seized from his apartment as well as statements that he made to the police.  In support of that motion, he submitted a brief unsworn declaration claiming that he did not (i) authorize police to search his apartment, or (ii) voluntarily speak to police about the items found in his apartment.  The suppression motion was referred to a magistrate judge, who held a hearing in which three officers testified.  The magistrate judge credited the officers’ testimony over Iverson’s unsworn declaration and recommended that the suppression motion be denied.  The district court agreed with the report and recommendation, finding that Iverson had affirmatively told the officers they could enter his apartment and that he had impliedly consented to Tank’s presence in the apartment by not objecting when Officer Costello and Tank entered. 

At trial, an issue also arose regarding the district court’s mid-trial dismissal of one of two black jurors.  The pool of 60 prospective jurors had included three black persons.  One of those prospective jurors was excused for cause and the government sought to use two of its peremptory challenges to excuse the other two.  Iverson objected under Batson to those peremptory challenges, and his objection was sustained, which resulted in the two black jurors being empaneled on the jury.  The government justified its challenge to the second potential black juror—Juror 8—on the ground that voir dire had revealed that the juror was unable to read the jury questionnaire.  The district court ultimately rejected this justification, finding that although Juror 8 was uneducated he seemed to be bright and able to grasp the facts.

During trial, however, after both sides had rested but before summations, the district court informed the parties that it had learned from the court’s jury administrator that Juror 8 may not have filled out his own jury questionnaire, which raised questions as to whether he could read and write well enough to fill out the questionnaire and therefore qualify as a juror.  The district court asked both sides how they thought the court should proceed, and it was agreed that the court would question Juror 8 in camera to determine whether he could read.  After Juror 8 was questioned outside the presence of the parties, the district court called a sidebar and reported that it had dismissed Juror 8 after learning that the juror’s wife had filled out and signed the questionnaire for him.[1] 

Iverson was subsequently convicted on all counts and sentenced to 15 years imprisonment. 

The Court’s Analysis of Iverson’s Appeal of the District Court’s Suppression Decision

The first issue raised in Iverson’s appeal concerned his challenge to the district court’s ruling on his suppression motion.  Iverson’s primary argument was that the district court had erred in finding that he had consented to Tank’s presence in his apartment. This was potentially a very significant argument, as the Fourth Amendment provides its greatest protections to those people who object to a government intrusion in the home.  The Court, however, quickly dispatched with this argument by applying the deferential clear-error standard to the district court’s factual findings.  First, the Court rejected Iverson’s contention that the district court had clearly erred in finding that Iverson saw that Tank was in his apartment.  The panel noted that this was a fair inference to be drawn from the officer testimony at the suppression hearing, particularly where Iverson declined to testify and submitted only an unsworn declaration that did not mention Tank’s presence in the apartment.  While the unsworn declaration may have been sufficient for purposes of standing, the Court of Appeals was not persuaded to give it much weight in the analysis when multiple law enforcement officers testified for the government.

Second, the Court ruled that the officers’ failure to ask explicitly for permission to bring a drug-sniffing dog into Iverson’s apartment did not undermine the district court’s finding of consent.  The Court noted that that the evidence showed that the officers in Iverson’s apartment were there solely to speak to him about the armed suspect and that they had no reason to mention Tank’s drug-sniffing abilities at the time.[2]  Relying on the Ninth Circuit’s decision in United States v. Shaibu, 920 F.2d 1423 (9th Cir. 1990), Iverson argued that the district court’s finding of implied consent improperly shifted the burden to him on the issue of consent.  In Shaibu, the Ninth Circuit had held that, in the absence of a specific request by police to enter the home, a defendant’s failure to object to entry is not sufficient to establish free and voluntary consent.  The Iverson panel, however, noted that the Court had previously declined to follow Shaibu, which was contrary to Circuit precedent.  It also noted that the decision was distinguishable since the evidence here showed that officers did ask Iverson for permission to enter his apartment.  Finally, the panel rejected Iverson’s argument that Tank’s mere presence in the apartment was a Fourth Amendment search, noting that under longstanding Supreme Court precedent a dog sniff did not constitute a search so long as the sniffing canine is legally present in the location where its senses are aroused, as was the case here.[3]

The Court’s Analysis Regarding the Dismissal of Juror 8

Iverson also challenged his conviction based on the dismissal of Juror 8, arguing that (i) the district court erred procedurally in dismissing the juror outside of Iverson’s presence and without giving him an opportunity to argue after the juror was interviewed, and (ii) the dismissal improperly undid the court’s earlier Batson ruling and drastically changed the jury’s composition in violation of his Fifth and Sixth Amendment rights.  The Court ultimately rejected the latter argument but determined that the district court had committed procedural error that was harmless.

The Court admonished the district court for interviewing Juror 8 outside the presence of the parties and the court reporter, noting that it would have been “better practice” to have the court reporter record the interview.  Although the parties consented to have the district court interview Juror 8 outside their presence, the Court found no indication in the record that Iverson had also agreed to forego his right to be present for the court’s dismissal of Juror 8 or that the parties agreed that the decision should be rendered without first apprising the parties as to what was revealed by the court’s interview and allowing for argument as to whether dismissal was warranted.  The Court therefore concluded that the district court had committed procedural error by dismissing Juror 8 before consulting the parties. 

However, the Court found that the procedural error was harmless beyond a reasonable doubt because the record did not suggest that the district court had clearly erred in finding that Juror 8 was unqualified to serve as a juror under the Jury Selection and Service Act of 1968.  That statute provides that a person is not qualified to serve on a jury if he or she is “unable to read, write, and understand the English language with a degree of proficiency sufficient to fill out satisfactorily the juror qualification form.”  The Court also noted that propriety of the dismissal of Juror 8 should not be impacted by the fact that Juror 8 had been seated on the jury after a successful Batson challenge.

As to Iverson’s constitutional argument, the Court found that the decision to excuse Juror 8 for cause did not dramatically alter the jury’s composition or prejudice Iverson.  The Court noted that only three black persons had been in the pool of prospective jurors, one had been excused during voir dire for cause, and Juror 8 should have been excused during voir dire for cause had he been properly vetted.  As a result, the Court observed that Iverson’s jury could have only had one possible black juror in the end, which it ultimately did. 


The events giving rise to Iverson are interesting, making it an interesting read even though it does not appear to set forth new law but instead seems to reflect the application of well-established precedent to a unique set of facts.  With respect to the search and seizure aspect of the ruling, there are a few takeaways.  The decision can be viewed as a cautionary tale for individuals who may find themselves interacting with police K-9 units.  Tank, a very good police dog, apparently hit on the drugs in Iverson’s apartment even though he was not initially being used for drug interdiction purposes.  The decision also serves as a reminder that individuals should not be cavalier when consenting to police presence in places where they might otherwise enjoy a reasonable expectation of privacy, particularly the home.  Why did Iverson call the police to his home knowing that he had drugs and weapons there?  Most drug dealers are quite reluctant to call the police under those circumstances.  One might assume that he must have felt a strong fear for his personal safety based on the threatened attack, but the police were unable to find any evidence of such a planned attack.  It seems like something else was going on here on that autumn night in Tonawanda.

With respect to the juror excusal issue, the decision is a timely reminder that trial courts should be careful when deciding to question jurors outside the presence of the parties.  To the extent such questioning occurs, courts should be mindful to create a record of what is discussed, which will facilitate appellate review.  Here, the questioning was done outside of the defendant’s presence with the defendant’s consent.  Absent consent by the defendant, it seems hard to imagine the outcome being the same.  This is because, as the panel recognized, there should never be private communications between the judge and the jurors, regardless of whether the communications concern issues that relate to the substance of the proceedings.  See United States v. Evans, 352 F.3d 65, 68 (2d Cir. 2003).  Still, even with consent, there was no court reporter to transcribe the interview and the judge failed to return to the parties to discuss excusal, thus depriving the defendant of an opportunity to persuade the district court to allow the juror to stay on the panel.  By not conducting the questioning with a court reporter, the Circuit was also deprived of an opportunity to undertake a meaningful review of what happened that led to the juror’s excusal.  Although it seemed like the right decision based on the juror’s limited reading and writing abilities, the decision was particularly fraught here since it resulted in the effective undoing of a Batson challenge that was successfully made by the defense during voir dire.  Although the Court’s application of the law seems right, the outcome was unfortunate for this reason. 

-By Jared Buszin and Harry Sandick

[1] The district court subsequently vacated its Batson ruling as to Juror 8, based on a motion for reconsideration filed by the government, on the ground that the issue was moot after the juror was excused.

[2] There was evidence that two officers became suspicious of Iverson after they went to the liquor store where Iverson had allegedly been and tried to identify on surveillance video either the woman Iverson allegedly met or the armed suspect.  After they failed to identify either the woman or the man, they became suspicious that Iverson’s apartment was being used to deal drugs.  However, those suspicions were not communicated at that time to the officers who went into Iverson’s apartment to question him about the suspect.  This is an interesting footnote to the Court’s opinion.  Usually in Fourth Amendment cases, it is the government that is arguing for, not against, application of a collective knowledge doctrine to justify searches.  See United States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001) (“Under the collective or imputed knowledge doctrine, an arrest or search is permissible where the actual arresting or searching officer lacks the specific information to form the basis for probable cause or reasonable suspicion but sufficient information to justify the arrest or search was known by other law enforcement officials initiating or involved with the investigation.”).

[3] Iverson also sought to appeal the district court’s decision not to suppress certain statements he made to police.  Iverson argued that these statements should be suppressed (i) as “fruit of the poisonous tree”, (ii) because they were obtained without giving Iverson Miranda warnings, and (iii) as involuntary.  The Court rejected these arguments with little substantive analysis.