United States v. Kimoana

383 F.3d 1215, 2004 U.S. App. LEXIS 19336, 2004 WL 2051381
CourtCourt of Appeals for the Tenth Circuit
DecidedSeptember 15, 2004
Docket03-4023
StatusPublished
Cited by112 cases

This text of 383 F.3d 1215 (United States v. Kimoana) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kimoana, 383 F.3d 1215, 2004 U.S. App. LEXIS 19336, 2004 WL 2051381 (10th Cir. 2004).

Opinion

EBEL, Circuit Judge.

Defendant Fonua Kimoana (“Defendant”) was convicted under 18 U.S.C. § 922(g) as a felon in possession of a firearm. He now challenges the district court’s refusal to suppress the firearm as evidence. We hold that the entry and resultant search were justified by consent given by “Nick,” a third party with both actual and apparent authority. Alternatively, once the officers’ initial entry into the room was justified by Nick’s consent, the subsequent search was justified by voluntary consent given by Patelo Vake. Accordingly, we exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

BACKGROUND 1

On March 12, 2002, Officer Robert Miner was sitting in his car after having cleared an alarm drop at a business near a Days Inn in Midvale, Utah. A man approached Officer Miner, and looked suspicious because he was “jittery, looking around and appeared to be very nervous.” The man turned out to be Nitokalisi Fonua (“Nick”), 2 who told Officer Miner that he had stolen a white GMC Blazer that was parked nearby. Nick led Officer Miner to the car, and the officer noticed a- sawed-off shotgun in the back seat with markings that looked gang-related. Nick told Officer Miner that he was staying in a room at the Days Inn that he was sharing with his “cousins” (meaning people he knows from the streets). The registered renter of this room turned out to be Defendant. . Nick said that he did not care if the officer searched the room for the vehicle key. ■ In response to Officer Miner’s request whether he could use Nick’s room key to enter the room if nobody answered the door, Nick again said that he did not care.

Officer Miner called other officers to the scene and filled them in on the details above. He gave Nick’s motel key to Officer Mohr, Sargeant Kent Jarvis, and Officer Scott Nesbitt. Officer Miner stayed with Nick while the other officers knocked on the door of the motel room to retrieve the car key. As the district court explained, the officers “had their weapons drawn because they suspected that the people in the room may be gang members and that there may be other weapons in addition to- the sawed-off shotgun already found.” Additionally, Officer Nesbitt believed that the other people in the motel room may be accomplices to Nick’s vehicle theft.

In response to the officers’ knock, Patelo Vake opened the door. Defendant was also in the room, but did not prevent Vake from answering the knock on the door. As the door opened, Officer Nesbitt saw a woman on the bed pointing an unidentified black object at the wall. 3 At that point, the officers ordered the three people in the *1220 room to show their hands, and they conducted a pat down search of the occupants to check for weapons. As soon as the officers concluded that no weapons posed a threat to their personal safety, they holstered their guns.

While the officers were in the room, Officer Miner advised them via radio that he had found a 9mm shell casing inside the stolen Blazer, and that the occupants of the room may be involved in a drive-by shooting and may have more weapons. Officer Nesbitt asked Vake for consent to search the room for weapons. The district court found Officer Nesbitt’s testimony credible when he described the atmosphere in the room as “calm” at this point. Immediately after the first request, Vake gave the officers his consent to search the room. After obtaining Vake’s consent, the officers searched the room and found a long-barreled revolver under the mattress.

On April 17, 2002, Defendant was charged by a federal grand jury with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). Defendant filed a motion to suppress the firearm found in his hotel room on two grounds: (1) the officers’ initial entry into the room violated the Fourth Amendment as it was based on consent by a third party (Nick) without actual or apparent authority and it exceeded the scope of Nick’s consent to search for the vehicle key, and (2) the officers’ subsequent search of the motel room violated the Fourth Amendment because Vake’s consent was not “voluntary.” The district court denied this motion, and Defendant entered a conditional plea of guilty, preserving his right to challenge the district court’s denial of his motion to suppress. Defendant was later sentenced to twenty-seven months in prison, followed by thirty-six months of supervised release. Judgment was entered on January 30, 2003, and Defendant filed a timely notice of appeal from the district court’s order on the motion to suppress on January 31, 2003.

DISCUSSION

Standard of Review:

When reviewing a district court’s denial of a motion to suppress, we will consider the totality of the circumstances and view the evidence in a light most favorable to the government. United States v. Long, 176 F.3d 1304, 1307 (10th Cir.1999). We will accept the district court’s factual findings unless those findings are clearly erroneous. Id. The credibility of witnesses, the weight to be given evidence, and the reasonable inferences drawn from the evidence fall within the province of the district court. Id.; United States v. Broomfield, 201 F.3d 1270, 1273 (10th Cir.2000). The ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewable de novo. Long, 176 F.3d at 1307; United States v. Little, 60 F.3d 708, 712 (10th Cir.1995).

Analysis:

We hold that the officers’ entry into the motel room and subsequent search was justified by Nick’s consent, as he was a third party with actual and apparent authority, and the officers did not exceed the scope of his consent. Alternatively, once the officers’ initial entry into the motel room was justified by Nick’s consent, their subsequent search was justified by Vake’s voluntary consent.

A. The Officers’ Entry and Search of the Motel Room as Justified by Nick’s Consent

No party disputes that Nick gave Officer Miner consent to search the motel room. The dispute centers on whether Nick had actual and/or apparent authority to give such consent, and whether the officers act *1221 ed within the scope of his consent in executing the subsequent search of the room. We answer each question in the affirmative.

1. Nick had actual and apparent authority to consent to the entry and search of the motel room.

Defendant argues that Nick lacked actual or apparent authority to consent to the officers’ entry into and search of the motel room. The crux of his argument is that Nick was not the registered renter of the room and that the officers were aware of the ambiguity surrounding who rented the room.

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Cite This Page — Counsel Stack

Bluebook (online)
383 F.3d 1215, 2004 U.S. App. LEXIS 19336, 2004 WL 2051381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kimoana-ca10-2004.