In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-2627

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                 v.

K EVIN D. R ISNER,
                                              Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, South Bend Division.
         No. 3:08-cr-00049—Robert L. Miller, Jr., Chief Judge.



    A RGUED D ECEMBER 2, 2009—D ECIDED F EBRUARY 3, 2010




  Before B AUER, K ANNE, and T INDER, Circuit Judges.
  K ANNE , Circuit Judge. After Kevin Risner choked and
threatened to kill his girlfriend, she called 911. After
an officer arrived she told him that Risner was drunk,
armed, and hiding in the basement crawl space of
their shared home. Police entered the home and arrested
Risner without a warrant. Police reentered the home to
take the girlfriend’s statement, and eventually removed
several guns from the home at her request. The girlfriend
2                                            No. 09-2627

never expressly consented to either of the police entries
into her home. Nevertheless, the district court denied
Risner’s motion to suppress, finding that the girlfriend
had impliedly consented to both entries. We affirm.


                    I. B ACKGROUND
  In late January 2008, Deborah Dean called 911 from
Kevin Risner’s house but hung up before talking to a
dispatcher. The Starke County Sheriff’s Department
responded anyway, as was its policy with all 911
hangups. Deputy Bill Dulin found Dean, Risner’s girl-
friend and cohabitant, in the front yard wearing a trench
coat. She told Dulin that she had called 911 because
Risner had been drinking heavily, threatened to kill her,
and assaulted and choked her. Dulin observed injuries
on Dean’s face and neck that appeared to corroborate
Dean’s story. Dean also told Dulin that she lived in
Risner’s house, that Risner had several weapons inside,
and that Risner had said that he had nothing to lose
because he was going to prison anyway. Dean also told
Dulin that Risner usually hid in a basement crawl space
when police came to the house.
  Dulin knocked on the back door but Risner did not
answer. Dulin called for backup but did not secure a
warrant. With the four additional officers that arrived,
Dulin entered the unlocked back door and found Risner,
drunk, exactly where Dean said he would be hiding. One
of the officers took Risner to jail while the others
remained at the house. Dulin asked Dean if they could go
inside to take her statement, and Dulin and Dean went
No. 09-2627                                                 3

inside together and sat at the kitchen table. Next to the
table was Risner’s gun cabinet. Dean later asked the
officers to remove the guns from the house. Both Dulin
and Dean agree that Dean never affirmatively consented
to either police entry into her home.
   Risner was indicted for possession of a firearm by a
convicted felon (Count I) and possession of an unregistered
firearm (Count II). Risner filed a motion to suppress,
arguing that the officers’ entry and seizure of his guns
violated the Fourth Amendment. The district court denied
the motion after holding an evidentiary hearing. A jury
then convicted Risner of Count I. The district court sen-
tenced Risner to 27 months’ imprisonment and three
years of supervised release. Risner filed a timely appeal.


                       II. A NALYSIS
  We review the district court’s legal conclusions de novo,
but review its findings of fact for clear error. United States
v. Hernandez-Rivas, 

, 758 (7th Cir. 2008).
Whether Dean impliedly consented to the police
entries into her home is a question of fact to be deter-
mined based on the totality of the circumstances.
Schneckloth v. Bustamonte, 

, 227 (1973); United
States v. Figueroa-Espana, 

, 704 (7th Cir. 2007).
  A warrantless search violates the Fourth Amendment’s
protection against unlawful searches and seizures unless
an exception to the warrant requirement applies, United
States v. McGraw, 

, 628 (7th Cir. 2009), such as
receiving a co-tenant’s consent to the search, see United
4                                              No. 09-2627

States v. Parker, 

, 1077-78 (7th Cir. 2006).
Consent can be express or implied. See United States v.
Renken, 

, 987 (7th Cir. 2007) (“[C]onsent in
certain cases can be implied in the absence of clear
verbal permission.”). To determine whether consent was
voluntarily given, the court should consider
    “(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 coer-
    cion was used, and (6) whether the individual
    was in police custody when he gave his consent.”

(quoting United States v.
Raibley, 

, 1075-76 (7th Cir. 2001)).
   We agree with the district court that Dean impliedly
consented to the police entering her home on both occa-
sions. Regarding the first entry, Dean called the police.
Although she hung up before speaking with the dis-
patcher, she willingly spoke with Dulin when he arrived
on the scene. She told him that she had called 911
because Risner had attacked her and threatened her
life. She also told him that Risner was armed and where
he was hiding in the house. Any reasonable person
would infer from Dean’s communications that she con-
sented to the police entry into her home to arrest
Risner. In fact, we have trouble imagining why Dean
would have provided Dulin such information if she was
not actually requesting that the police enter her home
and arrest Risner.
No. 09-2627                                                5

  Risner’s efforts to distinguish United States v. Wesela,

(7th Cir. 2000) and United States v. Hylton, 

, 783 (4th Cir. 2003) are unpersuasive. Although
Wesela dealt with the scope of consent, the concept of
implied consent in that case applies with equal force
under the facts before us. In Wesela, the wife called 911
because her husband had a gun and threatened to kill
her. 

. When the police arrived she
told them where to find her husband and the gun.
The police arrested the husband, but then reentered
the bedroom to search for the gun. This court affirmed
the district court’s finding that the wife had impliedly
consented to the police’s search for the gun, even after
arresting the husband: “The fact that there was no
direct verbal exchange between [the police officer] and [the
wife] in which she explicitly said ‘it’s o.k. with me for
you to search the apartment,’ is immaterial, as the events
indicate her implicit consent.” 

The wife was
aware that the search was going on and could have ob-
jected, but did not. 

the girlfriend called 911 because she had
fought with her boyfriend, who kicked her out of the
house. She “advised officers of the specific circum-
stances inside the apartment, telling them that there was
a gun in the apartment” and “that the gun was located
in the bedroom where she and [the defendant] slept . . . 

. The Fourth Circuit found that the girl-
friend impliedly consented to the police entry into the
apartment and search for the gun, because “there would
be virtually no other reason for her calling the police
and giving them the details of what existed in the apart-
ment.” 

09-2627

  As noted above, Dean hung up after calling 911. The
record does not indicate why she hung up, and in any
event, she voluntarily communicated with Dulin when
he arrived on the scene; the fact that she hung up earlier
does not suggest that she did not want police help.
She told police that she had been attacked and threatened,
and she provided detailed information about the circum-
stances inside the house, including the exact location of
Risner’s hiding place. She must have been aware that
police were entering her home based on her statements,
and she could have objected but did not. There is
nothing in the record to suggest that the police over-
came her will or that something about her age,
intelligence, or experience undermined her ability to
impliedly consent to the search. The district court did not
clearly err in holding that Dean impliedly consented to
the first police entry into her home.
  We agree with the district court that under the
specific facts of this case Dean impliedly consented to the
police re-entering her home to take her statement. It was
late January in northern Indiana. The weather and
common sense compelled them to move inside to take
Dean’s statement. Dulin asked her if it was all right that
they do so, and she did not object. Although ordinarily
mere acquiescence is not enough to show voluntary
consent, Bumper v. North Carolina, 

, 548-49
(1968), we agree with the district court that Dean
impliedly consented to the second police entry of her
home. There is no evidence that the officers repeatedly
requested permission to enter or that the police other-
wise compelled Dean’s implied consent. See Renken, 474
No. 

. That Dean consented to their continued
presence in her home is bolstered by her asking that the
police remove the guns. Although the entry had already
occurred, she obviously did not object to their presence
given her desire that they remove the guns. Thus, the
district court did not clearly err in finding that Dean
impliedly consented to the second police entry into
her home.


                    III. C ONCLUSION
 Because the district court did not clearly err, we A FFIRM .




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