Submitted: March 9, 2017
from United States District Court for the Western District of
Missouri - Joplin
RILEY,  Chief Judge, GRUENDER, Circuit
Judge, and SCHREIER,  District Judge.
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 erred in combining an evidentiary hearing
on his motion to suppress with his bench trial and in not
excluding all evidence obtained as a result of a search of
his home. We affirm, finding (1) no error in the procedure
the district court used in this case, and (2) Hardison
voluntarily consented to the search. See 28 U.S.C.
§ 1291 (appellate jurisdiction).
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."
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.
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).
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.
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?"-and the district court accepted
Hardison's answer pending its decision as to the
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 ...