FILED United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS September 11, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, v. No. 06-3092 (D.C. No. 05-CR-10080-01-W EB) A N TH O NY R. R OM ER O, (D . Kan.)
Defendant-Appellant.
OR DER AND JUDGM ENT *
Before O 'B RIE N, HOL LOW A Y, and HO LM ES, Circuit Judges.
Defendant-Appellant Anthony R. Romero was convicted by a jury of three
counts of possession with intent to distribute a controlled substance in violation
of 21 U.S.C. § 841(a)(1) and sentenced to 160 months in prison. M r. Romero
appeals the district court’s denial of his motion to suppress evidence related to the
third count – specifically, the cocaine found during an April 10, 2005 police
search of a closet containing M r. Romero’s personal belongings. W e exercise
jurisdiction under 28 U.S.C. § 1291 and AFFIRM .
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. BACKGROUND
At approximately 2:00 A.M . on April 10, 2005, W ichita, Kansas police
officers responded to a call from a neighbor reporting a domestic disturbance at
1802 South M adison. Sergeant Espinoza was one of at least five officers who
responded to the domestic disturbance call. Sgt. Espinoza was standing outside
the residence when he saw M r. Romero, a Hispanic male, running southbound on
an adjoining street. Sgt. Espinoza followed M r. Romero and found him hiding in
bushes. Drawing his gun, Sgt. Espinoza ordered M r. Romero out of the bushes,
patted him down, and instructed him to sit on the curb.
Although Sgt. Espinoza was able to converse with M r. Romero, he testified
at the suppression hearing that M r. Romero’s English was not very good and he
had experienced some difficulty communicating with him. Sgt. Espinoza called
for a Spanish-speaking officer to come to the residence due to the possibility that
the residents of the house did not speak English well and to make sure he was
“covering all the bases.” M oreover, Sgt. Espinoza testified that M r. Romero did
not smell of alcohol and his demeanor and actions did not indicate that he had
been drinking.
M r. Romero falsely identified himself as “Jose Gonzales.” H e told Sgt.
Espinoza that he and his brother had been involved in a bar fight and that he was
running from people w ho had injured his brother. M r. Romero claimed that his
brother w as at a nearby residence, but he could not remember w hich house. Sgt.
-2- Espinoza called dispatch to verify this account and was informed that no
disturbance had been reported from any bar in the area. At this time, Officers
Boone and Shelton arrived on the scene and stayed with M r. Romero while Sgt.
Espinoza returned to the residence, where no one had yet gained access to the
house. After several other officers knocked on the door and windows of the
residence, M s. M ichelle M ontoya eventually answered and let the officers into the
residence. The officers quickly checked the residence and determined that M s.
M ontoya and three children were the only ones present in the residence.
M eanwhile two blocks away, Officer Boone asked M r. Romero for his
name and date of birth. M r. Romero responded that his name was “Jose
Gonzales” and that he w as born A pril 27, 1978. Officer Boone also asked M r.
Romero if he had ever been in jail and M r. Romero answered affirmatively.
Officer Boone ran the name “Jose Gonzales” through the SPIDER identification
database to check if there were any outstanding warrants. However, the database
did not locate any individual by that name. At the suppression hearing, Officer
Boone testified that he asked M r. Romero his name at least three times during this
encounter, and all three times, M r. Romero identified himself as “Jose Gonzales.”
M r. Romero also told Officer Boone the same account of how his brother was
injured and that his brother w as in a nearby house.
Sgt. Espinoza radioed Officer Boone requesting him to ask M r. Romero if
he was willing to come to the residence at the 1800 block of M adison. Officer
-3- Boone drove M r. Romero approximately two blocks to the residence. M r.
Romero rode in the back of the patrol car, but Officer Boone did not handcuff
him. At the residence, the officers continued their attempts to ascertain M r.
Romero’s identity. After being informed that he could face charges for giving the
officers a false name, M r. Romero identified himself as “Victor Gonzales” and
stated that his date of birth was July 7, 1978.
At Sgt. Espinoza’s request, M s. M ontoya agreed to come out of the house
to see if she could identify M r. Romero. M s. M ontoya identified M r. Romero as
her boyfriend, Anthony Romero. Sgt. Espinoza was familiar with the name
“Anthony Romero” from his previous work in the Narcotics Division, and
consequently, suspected M r. Romero of dealing drugs. However, M r. Romero
steadfastly maintained that his name w as “Victor Gonzales,” and not “Anthony
Romero.” The officers ran the name “A nthony Romero” in the SPIDER database
and determined that there were two outstanding felony arrest warrants. Upon
learning of the outstanding warrants, the officers handcuffed M r. Romero in the
back of the patrol car. W hen M r. Romero still insisted he was not “Anthony
Romero,” the officers asked him whether he had any identification inside the
residence. M r. Romero claimed that he thought he might have something inside
the house proving that he was, in fact, “Victor Gonzales.”
Inside the residence, Sgt. Espinoza informed M s. M ontoya that he
suspected M r. Romero of having drugs in the house and asked for her permission
-4- to search the house. M s. M ontoya agreed, but expressly stated that M r. Romero
kept his belongings in a closet and that the officers w ould have to get M r.
Romero’s permission to search that area. Sgt. Espinoza returned outside and told
M r. Romero that they needed to establish his identity and requested permission to
search his belongings in the closet for identification. According to the officers,
M r. Romero agreed to the search. Although Sgt. Espinoza wanted to search for
drugs in addition to the identification, he did not inform M r. Romero of his
suspicions regarding drug activity.
After obtaining M r. Romero’s oral consent, Sgt. Espinoza began searching
M r. Romero’s closet which was located in a hallw ay betw een tw o bedrooms.
Inside the closet, there were some clothes on hangers and some clothes folded on
shelves. Beginning with the top shelf, Sgt. Espinoza began lifting up the folded
shirts, looking underneath, and feeling any pockets to see if they contained
identification. In between the folded clothes, Sgt. Espinoza discovered a white,
non-transparent, “W al-M art type” shopping bag. Opening the shopping bag, Sgt.
Espinoza saw a clear plastic bag containing what appeared to be rocks of
crack-cocaine. After finding the bag, Sgt. Espinoza continued to search the closet
for identification. He found various items including a police citation issued to
“Anthony Romero” and pay stubs bearing the same name.
On M ay 3, 2005, M r. Romero was charged with one count of unlaw fully
possessing, with intent to distribute, fifty grams or more of a mixture containing
-5- detectable amounts of cocaine base. 1 M r. Romero filed a motion to suppress the
cocaine, arguing that the police officers unlawfully searched the closet. On
September 22, 2005, the district court held an evidentiary hearing on M r.
Romero’s M otion to Suppress. Sgt. Espinoza, Officer Boone, and another officer
who responded to the domestic disturbance call, Officer Izzard, testified at the
hearing. M r. Romero and M s. M ontoya also testified.
Follow ing the district court’s denial of M r. Romero’s M otion to Suppress,
M r. Romero stood trial. On December 9, 2005, the jury found M r. Romero guilty
on all three counts. The district court sentenced M r. Romero to a term of 160
months in prison. M r. Romero timely filed this appeal.
II. D ISC USSIO N
In review ing a denial of a motion to suppress, we consider the evidence in
the light most favorable to the government (as the prevailing party) and accept the
district court’s factual findings unless clearly erroneous. United States v. Trotter,
483 F.3d 694, 698 (10th Cir. 2007). A finding is clearly erroneous w hen it is
“w ithout factual support in the record or we are left with the definite and firm
conviction that a mistake has been made.” United States v. Cernobyl, 255 F.3d
1 On September 21, 2005 in a superseding indictment, M r. Romero was charged with three counts: (1) possession with intent to distribute 427 grams of marijuana on December 12, 2003; (2) possession with intent to distribute 5,235 grams of marijuana on June 17, 2004; and (3) possession with intent to distribute 50 grams of cocaine base on April 10, 2005. This appeal is limited to reviewing the district court’s denial of M r. Romero’s m otion to suppress evidence related to Count 3.
-6- 1215, 1221 (10th Cir. 2001) (internal quotations omitted). The ultimate question
of the reasonableness of a search, however, is reviewed de novo. Trotter, 483
F.3d at 698.
The Fourth Amendment guarantees “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures . . . .” U .S. Const. amend. IV. Indeed, “physical entry into the home is
the chief evil against which the . . . Fourth Amendment is directed.” Welsh v.
Wisconsin, 466 U.S. 740, 748 (1984) (quoting United States v. U.S. Dist. Court
for E. Dist. of M ich., 407 U .S. 297, 313 (1972)). Accordingly, warrantless
searches and seizures conducted inside a home are presumptively unreasonable.
Payton v. New York, 445 U.S. 573, 586 (1980); Jones v. United States, 357 U.S.
493, 497-98 (1958). 2 Nevertheless, the Fourth A mendment allow s the w arrantless
search of a home when law enforcement officials obtain the voluntary consent of
an individual with actual or apparent authority. Georgia v. Randolph, 547 U.S.
103, 109 (2006) (citing Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) and
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)).
On appeal, M r. Romero claims that he did not consent to the search of the
2 As Justice Jackson cogently explained, the rationale underlying the Fourth Amendment’s requirement of a warrant is that the determination as to “[w ]hen the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a [neutral and detached] judicial officer, not by a policeman or Government enforcement agent.” Johnson v. United States, 333 U.S. 10, 13-14 (1948).
-7- closet. Additionally, M r. Romero contends that any consent given was
involuntary because: (1) he was in police custody and handcuffed in the back of a
patrol car at the time of his alleged consent; (2) he had been drinking heavily
prior to the incident; and (3) he was deceived by the police officer w ho told him
they were looking for identification and failed to inform him of the real purpose
of the search, i.e., to look for drugs. Finally, M r. Romero argues that the officer
exceeded the scope of his alleged consent to search for identification by opening
an opaque shopping bag in which the cocaine was ultimately found. Each of
these arguments lacks merit.
A. The District Court Did N ot Clearly Err in Finding that M r. Romero Gave the O fficers Consent to Search.
After holding an evidentiary hearing, the district court found that M r.
Romero “unequivocally” gave Sgt. Espinoza consent to search the closet. R. Vol.
I, Doc. 25 at 6-7. Notwithstanding M r. Romero’s claim at the suppression
hearing that he never gave the officers permission to search for identification, the
district court found that during his August 2, 2005 interrogation by police, M r.
Romero stated that he could not remember w hether he gave officers permission to
search. Accordingly, the district court found that Sgt. Espinoza’s testimony was
more credible than that of M r. Romero on the issue of consent.
The government bears the burden of proving, by a preponderance of the
evidence, that unequivocal and specific consent w as obtained. United States v.
-8- Guerrero, 472 F.3d 784, 789 (10th Cir. 2007) (requiring “clear and positive
testimony that consent was unequivocal and specific”). “[T]he credibility of the
witnesses and the weight to be given the evidence, together with the inferences,
deductions and conclusions to be drawn from the evidence, are all matters most
appropriate for resolution by the district court.” Id. (internal quotations omitted).
Accord United States v. Pena, 920 F.2d 1509, 1513 (10th Cir. 1990) (“Assessment
of the credibility of witnesses is the prerogative of the trial court, not an appellate
court, which neither sees nor hears the witnesses.”) Accordingly, determinations
of witness credibility will not be disturbed unless they are clearly erroneous.
“This holds particularly true where, as here, the credibility of witnesses is
important on the issue of voluntariness [of consent to search].” Guerrero, 472
F.3d at 789 (internal quotations omitted).
M r. Romero argues that the district court’s credibility determination
regarding Sgt. Espinoza is clearly erroneous because “[o]n two occasions, he was
untruthful to the Court.” Aplt. Opening Br. at 9. W e disagree.
In the first cited instance, which occurred during the suppression hearing,
Sgt. Espinoza testified on direct examination that he found the cocaine in a clear
bag between folded clothes in the closet. Contrary to M r. Romero’s assertions,
Sgt. Espinoza did not testify that the cocaine was in plain view as he sorted
through the folded clothing. Subsequently, in response to more detailed
questioning on cross-examination, Sgt. Espinoza clarified that the clear bag of
-9- cocaine was inside a white, opaque “W al-M art- type” shopping bag. Such a
clarification hardly impugns Sgt. Espinoza’s credibility. W e discern nothing in
this example that would lead us to conclude that the district court’s credibility
determination is clearly erroneous.
In the second instance, M r. Romero asserts that Sgt. Espinoza contradicted
himself regarding the need for an interpreter. At the suppression hearing, Sgt.
Espinoza testified that he had some difficulty communicating with M r. Romero
because M r. Romero did not speak English well. Two months later at M r.
Romero’s trial, Sgt. Espinoza testified that he did not recall having difficulty
communicating with M r. Romero.
After review ing the transcript of the suppression hearing, however, Sgt.
Espinoza conceded that initially he did have some difficulty communicating with
M r. Romero. Yet, Sgt. Espinoza consistently maintained that he called the
Spanish-language interpreter to the residence in order to comm unicate with the
individuals inside the house, not M r. Romero. These purported “inconsistencies”
in Sgt. Espinoza’s testimony do not support a conclusion that the district court
clearly erred in finding his testimony to be credible.
In sum, insofar as it rests on Sgt. Espinoza’s alleged lack of veracity, M r.
Romero’s challenge to the district court’s credibility finding is wholly without
merit. See United States v. Cruz-M endez, 467 F.3d 1260, 1266 (10th Cir. 2006)
(seeing “no reason not to defer to the court’s credibility determination” w here
-10- district court credits law enforcement officer’s testimony over that of defendant
(emphasis added)), cert. denied, 127 S. Ct. 1027 (2007). 3
Finally, M r. Romero argues, for the first time on appeal, that the failure to
provide a consent-to-search form supports giving him the benefit of the doubt that
he did not, in fact, consent, unless there is some justification for why the consent
was not documented. As support, M r. Romero argues that “[a]s a matter of
policy, law enforcement should be held to a higher burden of verification or
documentation when obtaining consent to search a home.” Aplt. Opening Br. at
15. M r. Romero cites no authority to undergird this proposition, however.
Generally, absent plain error resulting in manifest injustice, we will not
consider issues that are raised for the first time on appeal. See United States v.
Goode, 483 F.3d 676, 681 (10th Cir. 2007); United States v. Orr, 864 F.2d 1505,
1508-09 (10th Cir. 1988). A ny error here is hardly plain.
Consent is a factual issue to be determined by the totality of the
circumstances, not by per se rules. In other words, no one factor – including the
3 M r. Romero suggests that it would defy logic to believe that he would have granted consent under the circumstances: “[t]here is no logical reason to believe that he would [consent] if [the closet] contained cocaine.” Aplt. Opening Br. at 15. However, the case law is replete with examples of individuals consenting to a search that later reveals evidence of contraband, attesting to the fact that people do not always behave logically. See, e.g., United States v. Sawyer, 441 F.3d 890, 892 (10th Cir. 2006) (consensual search of defendant’s business revealed stolen motorcycle engines), cert. denied, 127 S. Ct. 156 (2006); United States v. Rosborough, 366 F.3d 1145, 1148 (10th Cir. 2004) (consensual search of defendant’s vehicle revealed 30 pounds of cocaine).
-11- execution of a consent-to-search form – is dispositive. Indeed, the Supreme Court
has tw ice rejected per se rules in determining the validity of a consent to search.
See Ohio v. Robinette, 519 U.S. 33, 39-40 (1996) (rejecting rule requiring “police
officers to always inform detainees that they are free to go before a consent to
search may be deemed voluntary”); Schneckloth v. Bustamonte, 412 U.S. 218,
227, 248-49 (1973) (rejecting rule requiring individuals to be informed of their
right to refuse consent). M ore specifically, citing Robinette, the Eighth Circuit
concluded that a signed consent-to-search form was not a prerequisite for
establishing the voluntariness of consent. United States v. Carrate, 122 F.3d 666,
670 (8th Cir. 1997). Accordingly, M r. Romero’s newly-spawned contention of
error regarding the officers’ failure to get his written consent is not plain, and w e
therefore will not consider it.
B. The District Court Did N ot Clearly Err in Finding that M r. Romero Voluntarily Consented to the Search of the Closet.
M r. Romero also challenges the district court’s ruling that he voluntarily
consented to the search claiming that: (1) he was in custody in handcuffs in the
back seat of a patrol car; (2) he had been drinking heavily prior to the incident;
and (3) he was deceived by the police officer who told him officers were looking
for identification and did not mention any suspicion of drug activity. 4
4 On appeal, M r. Romero does not argue that his consent was involuntary because of language barriers. A ny “communication barrier” M r. Romero refers to involves his allegation that he had been drinking heavily. M r. Romero’s (continued...)
-12- The government bears the burden of proving, by a preponderance of the
evidence, that the individual voluntarily consented – “a burden that is not
satisfied by showing a mere submission to a claim of lawful authority.” Florida
v. Royer, 460 U.S. 491, 497 (1983). The government must demonstrate that
consent w as given without duress or coercion, express or implied. See United
States v. Butler, 966 F.2d 559, 562 (10th Cir. 1992). The question of whether an
individual has voluntarily consented to a search is a question of fact that the
district court must evaluate under the totality of the circumstances. Robinette,
519 U.S. at 39-40; Schneckloth, 412 U.S. at 226-27; see also Cruz-M endez, 467
F.3d at 1265 (observing that voluntariness of consent is a question of fact which
is review ed under the highly deferential clearly-erroneous standard); United
States v. Sawyer, 441 F.3d 890, 895 (10th Cir. 2006) (“[T]he federal test for
determining the validity of consent to search requires a factual determination
4 (...continued) arguments regarding the need for an interpreter all bear on the issue of Sgt. Espinoza’s credibility. It is only in his reply brief that M r. Romero seems to argue that the language barrier provides a basis for finding involuntary consent. “Failure to raise an issue in the opening appellate brief waives that issue.” United States v. Black, 369 F.3d 1171, 1176 (10th Cir. 2004). In any event, M r. Romero’s contention is unpersuasive. The district court specifically noted that “[a]lthough the defendant may not be completely fluent in English, the evidence persuades the court that the defendant understood the request, that he was able to comm unicate his thoughts to the officer, and he made a decision of his own free will to grant permission to search the closet for his identification.” R. Vol. I, Doc. 25 at 7. These findings are not clearly erroneous. See United States v. Contreras, 372 F.3d 974, 977-78 (8th Cir. 2004) (finding that defendant’s difficulties w ith English did not prevent him from voluntarily consenting to a search of his home).
-13- based upon the totality of the circumstances of whether the consent was the
product of an ‘essentially free and unconstrained choice by [the] maker’ or
whether it was the product of ‘duress or coercion, express or implied.’”) (quoting
Schneckloth, 412 U.S. at 225), cert. denied, 127 S. Ct. 156 (2006). Factors to
consider w ithin the totality of circumstances include:
• the threatening presence of several officers; • the display or brandishing of weapons; • some physical touching by an officer; • use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory; • prolonged retention of personal effects such as identification, plane or bus tickets; • request to accompany officer to the station; • interaction in a nonpublic place; • absence of other members of the public; • the administration of M iranda warnings; • use of physical violence; • oral threats; • promises, inducements, deception, trickery; • the physical and mental condition and capacity of the defendant; and • whether the police informed defendant of the right to refuse consent.
See G uerrero, 472 F.3d at 790; Sawyer, 441 F.3d at 895; United States v.
Hernandez, 93 F.3d 1493, 1500 (10th Cir. 1996).
Addressing M r. Romero’s first argument, the fact that M r. Romero was in
custody is not dispositive as to the voluntariness of his consent. See United
States v. Watson, 423 U.S. 411, 424 (1976) (“[T]he fact of custody alone has
never been enough in itself to demonstrate a coerced confession or consent to
search.”). “Consent to search may be voluntary, even though the consenting party
-14- is being detained at the time consent is given.” United States v. Doyle, 129 F.3d
1372, 1377 (10th Cir. 1997). Accord United States v. Dozal, 173 F.3d 787, 796
(10th Cir. 1999); United States v. Soto, 988 F.2d 1548, 1557 (10th Cir. 1993)
(“Valid consent may be given by a person being detained.”). A court must look to
all the facts and circumstances to determine whether the consent to search was
freely given by an individual under arrest. See United States v. Shields, 573 F.2d
18, 23 (10th Cir. 1978).
Applying the factors enumerated above, the district court found that
although M r. Romero was in custody at the time he gave consent, the totality of
the circumstances did not warrant a finding that M r. Romero’s consent was
coerced. Specifically, the court observed that:
the defendant was on a public street in front of his home . . . , and the officers did not use any overt display of force or coercion to gain the consent. The interaction between the officer and the defendant was cordial and courteous at the time of the request. And although the officers did not inform the defendant that he had a right to refuse a search, the manner in which the officer sought consent conveyed that he was seeking the defendant’s permission for a search and that the defendant was not obligated to give consent. M oreover, the evidence shows that the defendant is a competent adult who understood the circumstances and the nature of the officer’s request.
R. Vol. I, Doc. 25 at 7. In our view, the district court properly considered the fact
that M r. Romero was in custody along with the rest of the circumstances in
concluding that M r. Romero voluntarily consented to the search.
Second, M r. Romero argues that his heavy drinking prior to the incident
-15- rendered his consent involuntary. The district court found that “despite testimony
of the defendant and his girlfriend about how much alcohol the defendant drank
prior to the incident, there is no credible evidence that defendant’s ability to
understand or make a voluntary decision was impaired to any significant degree
by alcohol.” R. Vol. I, Doc. 25 at 7. On appeal, M r. Romero fails to show why
this conclusion is clearly erroneous.
In United States v. Gay, 774 F.2d 368 (10th Cir. 1985), we held that the
defendant voluntarily consented to the search of his glove box even though his
drug intoxication made him slur his speech, stagger, sw ay, and use his vehicle to
support himself. Id. at 377 (recognizing “different degrees of intoxication” w here
an individual “can be too intoxicated to operate a motor vehicle, but rational
enough to understand requests and to give plausible explanations”). In this case,
M r. Romero understood and responded to Sgt. Espinoza’s and Officer Boone’s
questions and even offered a narrative explaining why he was running down the
street. Both officers also testified that they did not smell alcohol on M r.
Romero’s breath and that M r. Romero’s actions and demeanor did not indicate
that he had been drinking. Accordingly, the district court properly weighed the
evidence and did not clearly err in finding M r. Romero’s consent to be voluntary,
despite his alleged intoxication.
Third, M r. Romero claims that Sgt. Espinoza’s “deception” and “trickery”
regarding the object of the search rendered his consent invalid. Aplt. Opening Br.
-16- at 16-17. W hen assessing the voluntariness of consent, the use of deception or
trickery is one factor to be considered in the totality of the circumstances.
Sawyer, 441 F.3d at 895. However, under the facts present here, this factor is of
no moment.
Sgt. Espinoza truthfully told M r. Romero that he wanted to look for proof
confirming his identity. He simply did not go further and tell M r. Romero he also
was looking for evidence of drug-dealing. Even if this omission could be
construed as evincing deceit, it would not be the kind of deceit that would have
the capacity on these facts to erode the strong foundation of M r. Romero’s
otherw ise voluntary consent. See United States v. White, 706 F.2d 806, 807-08
(7th Cir. 1983) (holding that officer’s subjective intent to search for money did
not render involuntary a defendant’s consent to search for drugs). Cf. United
States v. Kimoana, 383 F.3d 1215, 1224 (10th Cir. 2004) (“Although the officers
executing the search were looking for weapons rather than the vehicle key, the
subjective motivation of the officers executing the search is irrelevant.”). 5
Accordingly the district court did not comm it clear error in its determination of
voluntariness.
5 M r. Romero’s argument that Sgt. Espinoza was familiar with an individual by the name of “Anthony Romero,” and therefore, had no need to confirm M r. Romero’s identity is belied by the fact that M r. Romero steadfastly maintained that he was not Anthony Romero. M oreover, even after finding the drugs, Sgt. Espinoza continued to look for identification bearing the name “Anthony Romero.”
-17- C. The Officers Did Not Exceed the Scope of M r. Romero’s Consent in O pening up the Plastic Shopping Bag in the C loset.
M r. Romero also argues that Sgt. Espinoza exceeded the scope of any
alleged consent when he opened an opaque shopping bag found in the closet.
“The scope of a search is generally defined by its expressed object.”
Florida v. Jimeno, 500 U.S. 248, 251 (1991). Accord Kimoana, 383 F.3d at 1223.
Additionally, “the scope of the consent determines the permissible scope of the
search.” United States v. M arquez, 337 F.3d 1203, 1207 (10th Cir. 2003). Accord
United States v. West, 219 F.3d 1171, 1177 (10th Cir. 2000). In determining the
scope of the consent, courts apply an objective-reasonableness test: “[W]hat
would the typical reasonable person have understood by the exchange between the
officer and the suspect?” Jimeno, 500 U.S. at 251 (finding it objectively
reasonable for police to conclude that general consent to search defendant’s car
for drugs included consent to search paper bag on floor of car which might
reasonably have contained drugs). M oreover, consent to search for specific items
includes consent to search those areas and containers that might reasonably
contain those items. Id. Finally, whether a search remains within the boundaries
of consent is a question of fact to be determined by the totality of circumstances,
and a district court’s findings will be upheld unless they are clearly erroneous.
See Kimoana, 383 F.3d at 1223; West, 219 F.3d at 1177 (“The court determines
from the totality of the circumstances whether a search remains within the
-18- boundaries of the consent, viewing the evidence in the light most favorable to the
government.”).
In this case, a reasonable person would have understood the exchange
between Sgt. Espinoza and M r. Romero to mean that M r. Romero was granting
permission to search anywhere in the closet for identification. The plastic
shopping bag discovered by Sgt. Espinoza in the closet reasonably could have
contained a receipt or other identifying information. M r. Romero disputes that
one could reasonably believe that identifying information could be found where
Sgt. Espinoza discovered the bag – that is, among folded (possibly clean) clothes.
But w e do not share M r. Romero’s doubt.
Sgt. Espinoza was feeling the pockets of the clothes when he found the bag.
Clothing pockets reasonably could be viewed as possible locations of identifying
information. Cf. M arquez, 337 F.3d at 1208-09 (holding it was objectively
reasonable for police to conclude that the general consent to search defendant’s
recreational vehicle for drugs and guns included consent to search compartment
under bench seat of vehicle where drugs and guns could reasonably have been
stored); United States v. Tirado, 313 F.3d 437, 440 (8th Cir. 2002) (searching
defendant’s bedroom closet and bag hanging in the closet was not beyond scope
of consent to search where defendant did not limit the scope of the search of his
bedroom); United States v. Ramstad, 308 F.3d 1139, 1446-47 (10th Cir. 2002)
(upholding officer’s removal of speaker grill covers as not exceeding scope of
-19- general consent to search car); West, 219 F.3d at 1178 (affirming district court’s
conclusion that consent given by defendant to search car for drugs and firearms
reasonably included consent to search the trunk and the containers w hich could
have contained either drugs or firearms). Accordingly, we conclude that the
district court did not clearly err in finding that the search was within the scope of
M r. R omero’s consent. III. C ON CLU SIO N
W e conclude that the district court did not comm it clear error in finding
that M r. Romero unequivocally and voluntarily consented to the search and that
the search did not exceed the scope of M r. Romero’s consent. Therefore, we
A FFIR M the district court’s judgment.
ENTERED FOR THE COURT
Jerome A. Holmes Circuit Judge
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