United States v. Sanchez

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 5, 2023
• Docket: 21-1328
• Status: Unpublished

Opinion

Appellate Case: 21-1328 Document: 010110793325 Date Filed: 01/05/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 5, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-1328 (D.C. No. 1:20-CR-00039-RBJ-1) MARIO RAYMOND SANCHEZ, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, KELLY, and MORITZ, Circuit Judges. _________________________________

Defendant-Appellant Mario Sanchez was convicted of being a felon in possession

of a firearm and ammunition in a bench trial and sentenced to 37 months’ imprisonment

to be followed by three years’ supervised release. 18 U.S.C. § 922(g)(1). He appeals the

denial of his motion to suppress evidence. Our jurisdiction arises under 28 U.S.C.

§ 1291, and we 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 21-1328 Document: 010110793325 Date Filed: 01/05/2023 Page: 2

Background The parties are familiar with the underlying facts and so we recount them herein

only as necessary to our disposition.

Mr. Sanchez was a person of interest in a homicide investigation. On January 23,

2020, law enforcement officers located Mr. Sanchez at the home of his mother, Serapia

Gutierrez. Ms. Gutierrez was present with her grandson, Mario Jr., and his dog. She

welcomed the officers, encouraging them to “search anything on the property that [they]

wanted,” including cars and a detached garage. 3 R. 183. The officers declined to search

the home at that time, instead opting to wait for a warrant. Warrant application pending,

the officers secured the home and informed Ms. Gutierrez that they “may or may not be

securing a [warrant],” which could take a while. Id. 223. As a security measure and to

prevent destruction of evidence, the officers indicated anyone walking around in the

home would be followed. While Ms. Gutierrez and Mario Jr. were present, Mr. Sanchez

was handcuffed and removed. Ms. Gutierrez then left the house to be interviewed by law

enforcement. Only the officers remained.

Approximately two hours later, Mr. Sanchez’s ex-wife Victoria Mandujano

(Mario Jr.’s mother) arrived to retrieve the dog from the bathroom, where it had been

secured while the officers performed a “cursory sweep of the house.” Id. 156, 181–82.

Ms. Mandujano looked around the home for a leash. One of the officers, Deputy Sean

Allegar, followed her as she did so. Ms. Mandujano opened a dresser drawer in Mario

Jr.’s bedroom (where Mr. Sanchez had slept the previous night) in which there was a gun.

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Both she and the officer saw it. This observation was included in the application for a

search warrant. The officers remained in the home for about two to three hours before

the warrant arrived. “The officers then executed the search warrant [and] recovered the

gun, which turned out to be a nine-millimeter handgun.” Id. 331. “Mr. Sanchez’s DNA

was found on the gun, and . . . . [t]he bullet from the apartment that was found near the

[victim’s] body matched th[e] gun.” Id. Mr. Sanchez admitted to possessing the gun.

Mr. Sanchez moved to suppress the firearm as derivative evidence on the basis

that the warrant lacked probable cause and the house was improperly impounded during

the application for the warrant. Mr. Sanchez contended that there was no nexus between

the suspected criminality and the home. After an evidentiary hearing, the district court

denied the motion. The court determined that the search warrant was based on probable

cause, even excluding the gun, concluding the officers had reason to believe that Mr.

Sanchez would be in the home along with a “very portable device” like the handgun at

bar. 3 R. 265–66, 322, 333. The court then ruled that the gun was found, not because of

a consent search or any search for that matter, but because the deputy “properly”

followed Ms. Mandujano into the bedroom and observed the gun “by chance” and “in

plain view.” Id. 333.

Discussion Our review of a denial of a motion to suppress proceeds with a view of the

evidence in the light most favorable to the government, and the district court’s factual

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findings will be upheld unless clearly erroneous. United States v. Romero, 749 F.3d 900,

903–04 (10th Cir. 2014). We review the district court’s legal conclusions regarding

Fourth Amendment reasonableness de novo. United States v. Johnson, 43 F.4th 1100,

1107 (10th Cir. 2022).

Mr. Sanchez argues that the initial impoundment of the home violated the Fourth

Amendment because it was not supported by probable cause at its inception. Aplt. Br.

32. While ordinarily a seizure “require[s] probable cause (as well as a warrant or exigent

circumstances),” Manzanares v. Higdon, 575 F.3d 1135, 1147 (10th Cir. 2009), none was

required in this case because Ms. Gutierrez’s unbounded permission overrode any such

requirement. See Soza v. Demsich, 13 F.4th 1094, 1105 (10th Cir. 2021). Here, Ms.

Gutierrez volunteered her home unprompted, including her vehicles and garage for the

officers to view. She repeatedly advised that she had “nothing to hide.” 3 R. 224, 328.

Her testimony supports the district court’s view of the evidence that Ms. Gutierrez

patently indicated she would cooperate. Id. 52–53. Given this manifest consent, it is

immaterial whether the officers’ conduct constituted a search or seizure.

To the extent Mr. Sanchez argues that Ms. Gutierrez’s consent was somehow

limited or invalidated, this is legally and factually incorrect. See Aplt. Reply Br. 2–5. As

discussed, when the officers arrived, Ms. Gutierrez gave the officers permission, then

sometime later she was voluntarily transported to the police station to be interviewed. 3

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R. 46–47, 186–87.1 There is nothing in the record to suggest that during that time, she

withdrew her permission or was unaware that the officers would remain in the home. See

United States v. Ortiz, 669 F.3d 439, 445 (4th Cir. 2012) (“[A]ny consent given is valid

until it is withdrawn by the defendant.”). Thus, the consent remained valid throughout

the duration of the officers’ presence in the home.

The gun was observed in plain view when Deputy Allegar appropriately followed

Ms. Mandujano into the back room. The parties don’t dispute that the gun was visible to

Ms. Mandujano and Deputy Allegar when Ms. Mandujano opened the dresser drawer.

As Deputy Allegar was lawfully present from that vantage point, the plain-view

exception to the warrant requirement applies. Johnson, 43 F.4th at 1110. In sum, the

district court did not err in concluding that the officers had consent to be in the home and

that Deputy Allegar lawfully followed Ms. Mandujano into the bedroom where the gun

was observed in plain view.

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge

1 Although her memory was admittedly fuzzy, Ms. Gutierrez recalled being transported in a non-law enforcement vehicle, while Deputy Travis Wilson (also present on scene) remembered escorting Ms. Gutierrez, who drove her own vehicle. In either event, Ms. Gutierrez was asked and agreed to be interviewed. 3 R. 185–86. 5