Youngstown Daily Legal News

Federal appeal denied in bank robbery case

ANNIE YAMSON
Special to the Legal News
Published: June 5, 2013

The 6th Circuit Federal Court of Appeals recently released a decision in which it affirmed the judgment of the United States District Court for the Northern District of Ohio denying suppression motions from two defendants in a bank robbery case.

Defendants Matthew Holland and Richard Persa were indicted in 2011 in connection with several 2010 unsolved bank robberies.

The men were apprehended after a January 2011 attempted robbery of a Subway restaurant in Cleveland.

Police tracked the robber to a nearby apartment building and were led to Apartment 2 after discussions with the tenants of the building. When no one answered the door, the officers left.

Later that same day, two officers returned and Holland opened the door.

The officers stepped inside and realized that Holland was not the suspect they saw on the Subway tape.

Holland indicated he was alone in the apartment but the officers heard rustling in the next room and entered the room to find Persa attempting to hide under a hooded sweatshirt.

According to case summary, questioning in the apartment revealed Persa had committed a number of unsolved bank robberies in 2010 and both men were placed under arrest. Holland signed a form consenting to a further search of the apartment.

After additional questioning by the FBI, both men confessed to committing the robberies.

Holland and Persa moved to suppress the statements and evidence obtained in the initial search of the apartment, arguing their warrantless arrests violated the Fourth Amendment.

The district court denied the motions after an evidentiary hearing.

The district court stated Holland did not resist the officers’ entry into his home and the police were entitled to search the bedroom by virtue of the “public safety exception.”

After acquiring new counsel, Holland filed another suppression motion “more thoroughly addressing consent and offering testimony by himself and his landlord that the police coerced entry into his apartment,” according to the district court.

The court subsequently denied that motion too because Holland had explicitly refused to testify at the evidentiary hearing.

The court record indicates each defendant entered a conditional guilty plea reserving the right to appeal the suppression issue.

In his written opinion issued on behalf of the three-judge appellate panel, Circuit Judge Gilbert Merritt opted to address the issue of whether Holland was allowed to present further evidence upon appeal or if he was limited to the existing evidentiary record.

“If permitted, Holland would testify that (the officers) kicked in his door, entered with guns drawn and immediately handcuffed him,” wrote Merritt.

Merritt also noted that the moving party must offer a good reason for not previously presenting the proposed proof before a court must consider reopening a record.

“Holland cannot meet this standard,” Merritt stated. “He argues that his acquisition of new defense counsel after the suppression hearing is a reasonable basis for reopening the record.”

However, the appellate panel found Holland’s new counsel failed to argue that his previous attorney was incompetent and Holland himself refused to offer testimony at the original hearing.

Merritt held, “Holland is in an especially poor position to argue with the district court’s decision because at the suppression hearing, the district court made it clear that he had the opportunity to dispute the government’s testimony. Despite this warning, he declined to offer any proof.”

The court concluded it could not reopen the suppression hearing record and Holland’s constitutional claim was to be decided on the existing record.

Merritt wrote that all parties agreed that the police officers had no warrant and neither party raised the question of exigent circumstances.

Holland and Persa both contended that the officers had no consent to enter.

At issue, however, were the arguments both men presented at the hearing. Persa waived the argument that Holland gave no consent to enter.

Instead, Persa chose to pursue the theory that the officers’ initial entry was valid, but that the officers had no authority to search the rest of the apartment once they were inside.

“Though Persa unequivocally asserted a violation of his Fourth Amendment right, he explicitly disavowed the theory that the violation stemmed from entry into the apartment without consent,” wrote Merritt. “We are powerless to consider Persa’s argument on appeal to the extent that it is rooted in the initial entry.”

The court, however, found no such voluntary relinquishment by Holland. He argued his arrest inside his own home without a warrant was against the law.

“The police typically must have a warrant to enter a defendant’s home,” the appellate panel conceded, however it held that warrantless entry is not unreasonable if the defendant consents. “The government bears the burden of proving through ‘clear and positive testimony’ that consent to enter was given voluntarily.”

Holland contended that the government failed to show consent, that his youth and drug addiction precluded voluntary consent and the evidence of banging on and damage to his door showed that entry was forced.

“Many of Holland’s suggestions are not supported by the record, and those that are do not lead us to find that the district court clearly erred. Because Holland offered no proof, the district court based its factual finding on (the officers’) testimony,” explained Merritt.

Because Holland could not provide sufficient proof that he did not consent to the officers’ entry into the apartment, the federal court affirmed the judgment of the district court.

Judges David McKeague and Jane Stranch concurred.

The cases are cited USA v. Holland and USA v. Persa, Case Nos. 11-4301/11-3948.

[Back]