23-8041 United States v. Brooks

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

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

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 24th day of November, two thousand twenty-five.

PRESENT: RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges, CHRISTINA REISS, Judge. * _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 23-8041

KHARISMA BROOKS,

* Chief Judge Christina C. Reiss, of the United States District Court for the District of Vermont, sitting by designation. Defendant-Appellant,

DARNELL MACON, SR.,

Defendant. _____________________________________

For Defendant-Appellant: GAUTAM RAO, (James I. Glasser, on the brief), Wiggin and Dana LLP, New Haven, CT.

For Appellee: ANDREW R. DURHAM, (Sandra S. Glover, on the brief), Assistant United States Attorneys, for Marc H. Silverman, Acting United States Attorney for the District of Connecticut, New Haven, CT.

Appeal from a judgment of the United States District Court for the District

of Connecticut (Jeffery A. Meyer, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the December 13, 2023 judgment of the

district court is AFFIRMED.

Kharisma Brooks appeals from a judgment of conviction following a jury

trial at which she was found guilty of aiding and abetting the unlawful possession

of a firearm by a convicted felon in violation of

(g)(1), 924(a)(2),

and 2. On appeal, Brooks challenges the district court’s denial of her motion to

suppress evidence seized during a warrantless search of her apartment. We

2 assume the parties’ familiarity with the underlying facts, procedural history, and

issues on appeal, to which we refer only as necessary to explain our decision.

After receiving a tip that Brooks had purchased firearms on behalf of

Darnell Macon, Sr., whose prior felony convictions prohibited him from

possessing a firearm, agents of the Bureau of Alcohol, Tobacco, Firearms, and

Explosives (the “ATF”) and local police arrived at Brooks’s apartment complex,

where Macon also lived, to interview her about the purchases. Although the

officers did not have a warrant, they entered Brooks’s apartment after she invited

them inside. They eventually seized two firearms from the master bedroom

closet. Brooks was later charged with one count of making false statements

during the purchase of a firearm, and one count of aiding and abetting Macon’s

unlawful possession of a firearm.

Before trial, Brooks and Macon jointly moved to suppress the firearms

seized from the apartment. The district court held a two-day suppression

hearing, at which it heard testimony from the two ATF agents who conducted the

search and one of the police officers who was present at the scene. The district

court also considered the affidavits submitted by Brooks and Macon, which

3 contradicted the officers’ testimony. The district court ultimately credited the

officers’ version of events and denied the motion.

At the conclusion of her trial, the jury found Brooks guilty of aiding and

abetting Macon’s unlawful possession of a firearm but returned a not guilty

verdict on the charge of making false statements in connection with the purchase

of a firearm. The district court ultimately sentenced Brooks to twelve months and

one day of imprisonment, to be followed by a three-year term of supervised

release.

On appeal, Brooks challenges the district court’s denial of her motion to

suppress the firearms recovered from her apartment. In reviewing a district

court’s denial of a motion to suppress evidence, “we review a district court’s

conclusions of law de novo and its conclusions of fact for clear error.” United States

v. McKenzie,

(2d Cir. 2021). Whether law enforcement officers

obtained voluntary consent to conduct a search “is a question of fact to be

determined from the totality of all the circumstances.” Schneckloth v. Bustamonte,

(1973). As part of this inquiry, “we view the evidence in the light

most favorable to the government, and we give special deference to findings that

are based on determinations of witness credibility.” United States v. Delva, 858

, 148 (2d Cir. 2017) (alteration accepted and citation and internal quotation

marks omitted). On the record developed at the hearing, we see no basis to

disturb the district court’s conclusion that the officers obtained voluntary consent

before conducting the search of Brooks’s apartment.

At the suppression hearing, the ATF agents each testified that after they

approached Brooks’s apartment, one of the agents asked her outside if she

“[w]ould show [him] where the firearms are.” Sp. App’x at 2. According to the

officers, Brooks replied “[s]ure,” in a “very certain manner,” before walking back

into her apartment, aware that the agents had followed her inside.

Unable

to locate the firearms, Brooks returned to the front door and called out to Macon,

who had been outside in conversation with the two police officers, and asked him:

“[W]here are those guns? Can you find those guns?”

. Macon then

entered the apartment, aware that the agents had followed him upstairs as he

retrieved two firearms from the bedroom. At no point did Brooks or Macon

object to the agents’ presence in the apartment or ask them to leave.

The district court was justified in relying on these affirmative statements

and actions to conclude that the agents reasonably believed they had consent to

enter the apartment. It is well settled that a suspect’s consent to a search does not

5 require any magic words. See United States v. Buettner-Janusch,

(2d Cir. 1981) (“[A] search may be lawful even if the person giving consent does

not recite the talismanic phrase: ‘You have my permission to search.’”). In

addition, “consent may be inferred from an individual’s words, gestures, or

conduct.”

Here, Brooks’s affirmative “sure” and calling out to Macon for

assistance, followed by Macon’s return to the apartment and retrieval of the

firearms, implied that Brooks and Macon consented to the search of the apartment.

See United States v. Deutsch,

(2d Cir. 1993) (“[W]hen [the

defendant] advised the officers that his identification was inside the house and

entered for the purpose of showing them his identification, he unmistakably

invited the officers inside.” (internal quotation marks omitted)).

Nothing in the record compels a finding that law enforcement officers

coerced Brooks and Macon into giving consent for the search. See United States v.

Garcia,

(2d Cir. 1995) (“So long as the police do not coerce consent,

a search conducted on the basis of consent is not an unreasonable search.”). At

no point during the agents’ entries into the apartment were either Brooks or Macon

threatened or restrained. In fact, Macon was allowed to run an errand during the

search with no resistance, and Brooks and Macon’s son engaged in friendly

6 conversations with the agents throughout the encounter. The mere fact that four

officers were present at the scene does not, alone, support a finding “that the

circumstances were inherently coercive.” United States v. Sanchez,

(2d Cir. 1980); see also United States v. Kon Yu-Leung,

, 41 (2d Cir. 1990)

(finding consent despite presence of six law-enforcement officers).

Similarly, the fact that the officers did not expressly inform Brooks of her

right to object to the search does not – without more – compel a finding that the

officers lacked consent. Though “knowledge of the right to refuse consent is one

factor to be taken into account, the government need not establish such knowledge

as the sine qua non of an effective consent.” Schneckloth,

. We have

long recognized that “Fourth Amendment standards do not make it mandatory to

advise a suspect of [her] right to refuse consent to search.” United States v.

O’Brien,

(2d Cir. 2019). Given that voluntariness is to be

determined by the totality of all the circumstances, we cannot say that the district

7 court clearly erred in finding that Brooks voluntarily consented to the search of

her apartment. 1

* * *

We have considered Brooks’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

1 For the first time in her reply brief, Brooks argues that the ATF agents’ credibility, which the district court relied on in making its suppression ruling, had been undermined by their failure to produce certain discovery until close to the start of trial. But “arguments not made in an appellant's opening brief are [forfeited].” JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V.,

(2d Cir. 2005). And while we have discretion to consider such arguments “if manifest injustice would otherwise result,” we see none in this case.

Brooks does not articulate how the officers’ delayed disclosures undermined the credibility of their testimony, given months earlier. And at no time did Brooks or Macon ask the district court to reconsider its suppression decision on the basis of that supposedly late disclosure.

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