RILEY, Chief Judge.
Louis Hardison appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), arguing the district court
In the early morning hours of November 27, 2013, Dushawnne Hoyt reported a domestic disturbance involving a firearm. Officers from the Neosho Police Department (Missouri) responded to the call. Hoyt told officers Hardison put a knife to her throat, threatened to kill her, and then held a gun to her head, again threatening to kill her. Officer Trent Gold approached Hardison, who was then standing inside his residence at the front door, to ask Hardison if they could speak inside the home. Hardison replied, "sure."
Another officer, Sergeant Brad Fienen, arrived on the scene later while Officer Gold was inside the home with Hardison. Sergeant Fienen entered the residence and asked Hardison if he had a gun inside the home. Hardison pointed to a green duffel bag and told Sergeant Fienen, "The only gun I have is in there." Sergeant Fienen secured the gun from the bag and, because he observed it did not match Hoyt's description of the gun Hardison threatened her with, asked Hardison if he had another firearm. After hesitating, Hardison told the officers there was another gun, led the officers to the bedroom, and said while pointing in the room, "In the ductwork, there's a gun down there. You can go get it." Sergeant Fienen removed the grate to the air conditioning and retrieved a second firearm, which did match Hoyt's description. Hardison told the officers he knew he was not supposed to be in possession of a firearm as a felon and he knew he was going to prison.
The grand jury returned a one-count indictment charging Hardison with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court issued a scheduling and trial order on December 19, 2014, requiring the parties to file all pretrial motions on or before twenty days from that date. Hardison's bench trial was scheduled to begin June 15, 2015. On June 12, 2015, the Friday before Hardison's Monday trial date and well-past the court's deadline for filing pretrial motions, Hardison filed a motion to suppress all evidence obtained "as a result of the November 27, 2013, detention, seizure, arrest, and search of [Hardison]." Hardison "request[ed] an evidentiary hearing be granted or that the matter be permitted to be taken up with his bench trial." (Emphasis added).
Hardison's bench trial commenced on schedule. Citing concerns for efficiency and fairness "given the timing," the district court "decided the best way to take up . . . the propriety of the evidence is to simply receive evidence on the suppression motion at the same time [it] hear[s] the evidence related to the trial and then the Court will not consider that evidence that it believes should be suppressed if the Court reaches that conclusion." Neither party objected to proceeding in this manner, a manner Hardison initially had proposed, and counsel for both parties explicitly agreed to the procedure.
The government introduced several exhibits of evidence obtained as a result of the search of Hardison's home, and the district court noted it would "assume that [Hardison] ha[s] an objection to the exhibits and the testimony of what happened after [the officer] goes in the home," and would not "make any final ruling on the admissibility of that evidence" until after the trial was completed. Hardison was the only witness for the defense. Neither Hardison nor his attorney clarified that Hardison intended his testimony to be limited to the issue of suppression. Hardison testified he did not consent to a search and he had sole dominion and control over the residence. Hardison's attorney objected to only one question—"Isn't it true that the officer found weapons and firearms at your home on November 27, 2013?"
Two weeks after the trial, the district court issued an order denying Hardison's motion to suppress, finding Hardison voluntarily consented to the search. In a separate order, the district court found Hardison knowingly possessed firearms, as evidenced by Hardison telling "the officers where in the residence the weapons could be found. The firearms were found in [Hardison's] home, he testified that he placed them there, and he testified that he resides alone and exercises complete dominion and control over his residence." The district court found Hardison guilty of being a felon in possession of a firearm. Hardison filed numerous pro se motions, including a pro se motion for a new trial, all of which the district court denied. Hardison filed a timely notice of appeal "from the judgement [sic] and sentence" of the district court.
A. Combined Evidentiary Hearing and Bench Trial
Hardison asserts the combined evidentiary hearing and bench trial and the use of his suppression testimony in assessing his guilt amount to constitutional, structural, and plain error. Hardison first notes the district court erred in "failing to rule on defendant[`s] pretrial Motion to Suppress before trial." It is within the district court's discretion not to hold an evidentiary hearing at all,
We likewise find no structural error "undermining the fairness of a criminal proceeding as a whole,"
Hardison claims a constitutional error occurred when the district court improperly considered his suppression testimony for the purpose of determining his guilt. "[W]hen a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection."
Hardison contends this objection was an "attempt to limit the testimony for the purpose of the suppression motion only," but acknowledged at oral argument it was not clear if this objection was based on the potential
Hardison further argues, even in the absence of any structural or constitutional error, the district court's use of his testimony to determine his guilt was plain error.
B. Denial of Motion to Suppress and Motion for a New Trial
Hardison next contends the evidence obtained during the search of his home should have been suppressed because the officers did not have a warrant and Hardison did not voluntarily consent to the search.
Hardison claims his consent was limited to allowing Officer Gold inside his home for a conversation, and the officers exceeded the scope of his consent when they searched. Consent does not need to be explicit to be valid.
Hardison replied "sure" to the officer's request to speak with him inside the home. When inside and asked if "there was a gun in the residence," Hardison pointed to a green duffel bag in the hallway and said, "The only gun I have is in there." Hardison did not object to a subsequent search of that bag. When the officer asked about another gun, explaining the gun in the duffel bag was not the firearm Hoyt had described, Hardison directed the officers to where he kept a second gun in his bedroom air conditioning ductwork. Hardison told the officers they could "go get it." Even if Hardison never expressly consented to the search of his bag that uncovered the first firearm, he was "present and fail[ed] to object to the continuation of a search," which is "circumstantial evidence [that] provide[s] proof that the search conducted was within the scope of consent."
This consent was also voluntary under the totality of the circumstances.
Because the combined evidentiary suppression hearing and bench trial, under the circumstances, was not error, structural or otherwise, and Hardison voluntarily consented to the search of his home, we affirm.