United States v. Christopher Kegler

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 27, 2018
• Docket: 17-10177
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 27 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10177

Plaintiff-Appellee, D.C. No. 2:15-cr-00106-MCE-1 v.

CHRISTOPHER THOMAS KEGLER, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding

Argued and Submitted September 7, 2018 San Francisco, California

Before: BERZON and FRIEDLAND, Circuit Judges, and CARDONE,** District Judge.

Before pleading guilty to charges of Possession with Intent to Distribute

Methamphetamine in violation of 21 U.S.C. § 841(a) and Felon in Possession of a

Firearm in violation of 18 U.S.C. § 922(g), Kegler moved to suppress evidence of

drugs and a firearm found in his hotel room. After an evidentiary hearing, the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. district court found that Kegler had voluntarily consented to a search of the hotel

room. Kegler appeals the district court’s denial of his motion to suppress the

evidence, having conditioned his plea on the right to appeal that order. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

We review the denial of a motion to suppress de novo, United States v.

Davis, 530 F.3d 1069, 1077 (9th Cir. 2008), and review the district court’s

determination of voluntariness for clear error, United States v. Rojas-Millan, 234

F.3d 464, 468 (9th Cir. 2000). We view the evidence related to consent in the light

most favorable to the fact-finder’s decision. United States v. Brown, 563 F.3d 410,

414 (9th Cir. 2009) (citing United States v. Patayan Soriano, 361 F.3d 494, 501

(9th Cir. 2004)).

Kegler argues that the district court erred because the five factors that we

generally apply to determine the voluntariness of consent to search, as set forth in

Patayan Soriano, 361 F.3d at 502, and United States v. Cormier, 220 F.3d 1103,

1112 (9th Cir. 2000), counsel against finding voluntariness in this case.

A valid consent to search is an exception to the Fourth Amendment’s

warrant requirement. Brown, 563 F.3d at 414-15 (citing Schneckloth v.

Bustamonte, 412 U.S. 218, 222 (1973)). In Schneckloth, the Supreme Court

explained that the government bears the burden of demonstrating that consent to

search is voluntary, “to be determined from the totality of all the circumstances.”

2 Schneckloth, 412 U.S. at 223, 227. We have elaborated that “[w]hen viewing the

surrounding circumstances, there is no single controlling criterion.” United States

v. Perez-Lopez, 348 F.3d 839, 846 (9th Cir. 2003) (quoting United States v.

Kaplan, 895 F.2d 618, 622 (9th Cir. 1990)).

Here, the Cormier-Patayan Soriano factors do not readily inform the

voluntariness inquiry because it was Kegler himself who initiated and broadened

the search that resulted in the discovery of the methamphetamine and the gun.

Soon after the officers entered his hotel room with an arrest warrant, Kegler

requested assistance from a deputy United States Marshal in finding a sweatshirt so

he could keep warm at the police station. At Kegler’s direction and with Kegler’s

assistance, the deputy searched two suitcases, including one that was locked and

for which Kegler provided the combination. And, in response to the deputy’s

question about how he wanted to handle his property in light of his arrest, Kegler

expressed his desire to take his possessions with him to the police station, rather

than leave them at the hotel. Kegler was informed that this request would

necessitate a search of all of his property. In response, Kegler told the deputy that

the officers could “search whatever they want.” It was shortly after that the deputy

discovered the methamphetamine in a duffel bag.

After the discovery of the methamphetamine, Kegler was read Miranda

warnings, and he again consented to a search of his possessions. After Kegler told

3 another officer that he had a gun in one of his bags, Kegler provided the officers

with the precise location of the gun. They then discovered the gun by following

Kegler’s instructions.

It is difficult to square Kegler’s claim of the involuntariness of his consent

with his initiation of the search of his property and his broadening of the search by

electing to take his property to the police station, even after he had been advised

that this choice would require an expanded search. Kegler’s continuing

cooperation in the search, including providing access to a locked container and

offering precise directions for finding the gun, further support the finding of

voluntariness. Viewing the evidence in the light most favorable to the district

court’s findings, and considering the totality of the circumstances, Kegler’s

consent was voluntary. See Schneckloth, 412 U.S. at 227; Brown, 563 F.3d at 414-

15.

AFFIRMED.