Filed: Oct. 13, 2020
Latest Update: Oct. 13, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT _ October 13, 2020 Christopher M. Wolpert UNITED STATES OF AMERICA, Clerk of Court Plaintiff - Appellee, v. No. 19-2200 (D.C. No. 1:17-CR-01826-MV-1) JUAN CARLOS QUEZADA-LARA, (D. N.M.) Defendant - Appellant. _ ORDER AND JUDGMENT* _ Before TYMKOVICH, Chief Judge, BRISCOE, and MURPHY, Circuit Judges. _ Defendant-Appellant Juan Carlos Quezada-Lara appeals the denial of his motion to suppress. Mr
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT _ October 13, 2020 Christopher M. Wolpert UNITED STATES OF AMERICA, Clerk of Court Plaintiff - Appellee, v. No. 19-2200 (D.C. No. 1:17-CR-01826-MV-1) JUAN CARLOS QUEZADA-LARA, (D. N.M.) Defendant - Appellant. _ ORDER AND JUDGMENT* _ Before TYMKOVICH, Chief Judge, BRISCOE, and MURPHY, Circuit Judges. _ Defendant-Appellant Juan Carlos Quezada-Lara appeals the denial of his motion to suppress. Mr...
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT
_________________________________ October 13, 2020
Christopher M. Wolpert
UNITED STATES OF AMERICA, Clerk of Court
Plaintiff - Appellee,
v. No. 19-2200
(D.C. No. 1:17-CR-01826-MV-1)
JUAN CARLOS QUEZADA-LARA, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, BRISCOE, and MURPHY, Circuit Judges.
_________________________________
Defendant-Appellant Juan Carlos Quezada-Lara appeals the denial of his
motion to suppress. Mr. Quezada-Lara argued before the district court that his
grandfather’s consent to search his residence was invalid because (1) it was
involuntary and (2) his grandfather lacked common authority to consent to the
search.1 After conducting a suppression hearing, the district court rejected Mr.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1
Mr. Quezada-Lara abandons this common authority argument on appeal.
Although he does note that a search does not violate the Fourth Amendment “where
Quezada-Lara’s arguments and denied the motion to suppress. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Mr. Quezada-Lara was charged in a two-count indictment: Count 1, assaulting,
resisting, and impeding a federal officer, in violation of 18 U.S.C. § 111, and Count
2, being a prohibited person in possession of a firearm and ammunition, in violation
of 18 U.S.C. §§ 922(g)(3) and (5). ROA, Vol. I at 13. He moved to suppress the
firearms and ammunition found during a search of his residence, contending (1) that
his grandfather did not voluntarily consent to the search and (2) that his grandfather
did not have authority to consent because he lacked common authority over the
premises. Id. at 42–59.
At the suppression hearing, FBI Special Agent Bryan Acee testified that the
search of Mr. Quezada-Lara’s house occurred late on the night of June 19, 2017 and
in the early morning of June 20, 2017, while law enforcement officers were looking
for Mr. Quezada-Lara in connection with an assault on an officer on June 19th. Id.,
Vol. II at 4–6. A few hours after the assault, Mr. Quezada-Lara’s girlfriend had
reported his car stolen to the Albuquerque Police Department and provided law
enforcement with his home address.
Id. at 5. The car was registered to that address.
Id.
police obtain consent to search from one who possesses common authority over the
premises,” Aplt. Br. at 25, he does not make any argument regarding his
grandfather’s lack of common authority.
2
Agent Acee testified that law enforcement surveilled Mr. Quezada-Lara’s
address and observed a light blue SUV departing the property. Id. at 6. Agent Acee
recognized the vehicle because he believed it had picked up Mr. Quezada-Lara earlier
in the day after he fled from agents.
Id. Agent Acee pulled the car over, and Mr.
Quezada-Lara’s girlfriend, Jessica Artega, was in the car.
Id. at 7.
Agent Acee
explained to her that law enforcement was looking for Mr. Quezada-Lara, and Ms.
Artega responded that she stayed at Mr. Quezada-Lara’s home occasionally and that
she was “50 percent sure” that Mr. Quezada-Lara was in the house.
Id. She also
stated that Mr. Quezada-Lara had a .45 pistol.
Id. at 57.
She said that she had
brought food to the residence for Mr. Quezada-Lara’s grandfather that evening and
told officers that the grandfather was hard of hearing.
Id. at 9, 35. Ms. Artega
provided Agent Acee with a key to the residence.
Id. at 9.
Agent Acee testified that Ms. Artega accompanied law enforcement back to
the residence, where the agents knocked on the front door and windows and called
out to the occupants of the house but received no response. Id. at 7–8.
Agents went
to the back of the house and knocked on the back door.
Id. at 9.
They saw the blinds
in a window move and saw Mr. Quezada-Lara’s grandfather (Mr. Lara) look out.
Id.
Agent Acee testified that they had awakened Mr. Lara and that he looked “startled.”
Id. Agent Acee stated that when Mr. Lara first opened the window blinds, agents had
their weapons drawn but lowered the weapons once they saw Mr. Lara.
Id. at 12.
Agents then identified themselves and asked Mr. Lara to come to the back door.
Id.
at 9–10. Agent Acee summoned Agent Stemo, who is fluent in Spanish, to talk to
3
Mr. Lara. Id. at 10. Agent Acee testified that Mr. Lara was cooperative and friendly,
and that Mr. Lara appeared to understand what Agent Stemo was telling him.
Id. at
10–11.
Mr. Lara came out of the house and sat in a chair on the porch. Id. at 11.
Agent Stemo explained why the police were there and asked if Mr. Quezada-Lara
was in the home, and Mr. Lara replied that his grandson had been there earlier in the
day for a little while, mentioning that his grandson had taken a shower.
Id. at 11, 14,
19. He gave agents verbal permission to clear the house to verify whether Mr.
Quezada-Lara was there.
Id. at 12, 72–73. During the initial safety clear, Agent
Acee saw drug paraphernalia, including small plastic bags containing residue of what
he believed was methamphetamine, on the dresser in the bedroom that Mr. Lara later
identified as Mr. Quezada-Lara’s.
Id. at 15.
Agent Stemo testified that she spoke with Mr. Lara on the back porch during
the safety clear. Mr. Lara seemed to understand what she was telling him because his
answers made sense and indicated that he understood what was being asked. Id. at
74. She also stated that Mr. Lara was joking with her.
Id. at 73–74.
Following the
safety clear search, Mr. Lara, Agent Stemo, and Agent Acee went into the kitchen
and sat at the kitchen table.
Id. at 12, 75.
Mr. Lara carried on a conversation with
Agent Stemo, speaking both English and Spanish.
Id. at 12–13. Mr. Lara stated that
he lived at the residence with his daughter and his grandson.
Id. at 76. Agent Stemo
explained to Mr. Lara that agents were there because they believed his grandson had
been involved in an incident where he ran over one of their task force officers.
Id. at
4
78. She testified that she thought she told him agents were looking for drugs or
firearms, and that he responded that he did not have any guns because his daughter
did not like them. Id. at 78–79.
Mr. Lara told the agents that his grandson’s
bedroom was located by the back door and showed Agent Acee the bedroom.
Id. at
14.
Mr. Lara also told the agents that his grandson sometimes slept in a shed in the
backyard.
Id. at 14–15.
Agent Stemo presented Mr. Lara with a Spanish language consent-to-search
form and went over it with him. Id. at 15. When asked if he had any questions about
the form, he stated that he did not.
Id. at 79. Agent Stemo testified that when she
was reading the form to him, Mr. Lara appeared to understand it, was nodding his
head, and never hesitated before signing the form.
Id. at 79–80. Mr. Lara then
signed the consent form, and the agents conducted a full search of the residence.
Id.
at 17–19. Agent Stemo sat in the kitchen with Mr. Lara for 30 to 45 minutes during
the search of the home.
Id. at 80.
They discussed who lived there, and Mr. Lara told
agents that his daughter had gone to Mexico.
Id. at 94. According to Agent Stemo,
Mr. Lara appeared to have his wits about him, never indicated that he was suffering
from some type of dementia, and never responded to her questions with, “I don’t
remember.”
Id. at 81. During the search, agents found some of Mr. Quezada-Lara’s
clothing in the bathroom.
Id. at 19. Agents also found two guns in the bedroom.
Id.
at 95.
Mr. Lara also testified at the suppression hearing. He could not recall his age
or where he lives, why he was in court, or that his grandson was there. Id. at 102–04.
5
He also testified that police had never been to his house.
Id. at 107.
He stated that he
did not remember sitting with the police in his kitchen.
Id. at 108.
When asked how
old he was, he responded, “I’m really old. I’m like, you know, like 33, 34, I think.”
Id. at 109.
In addition, Mr. Lara’s daughter—Rosa Lara Baillon (Ms. Lara)—testified at
the suppression hearing. She testified that her father lives at her residence, has his
own bedroom, and full access to everywhere in the house. Id. at 120.
She explained
that Mr. Lara has been receiving treatment for Alzheimer’s for five years.
Id. at 114.
She testified that she had gone to Mexico to check on her mother on the date that the
agents searched her residence.
Id. at 112.
She stated that when she returned home,
she found a window of Mr. Lara’s room broken.
Id. at 113.
When she asked Mr.
Lara what happened, he said, “They tried to kill me.”
Id.
Mr. Quezada-Lara introduced into evidence medical records from Mr. Lara’s
psychiatrist, who met with Mr. Lara on August 14, 2017 and on February 19, 2018.
Id., Vol. I at 50–51. According to the district court, the August 14, 2017 report stated
that Mr. Lara suffered from moderate Alzheimer’s dementia, describing Mr. Lara as
having poor memory, no decisional capacity, and “impoverishment of thinking.”
Id.
The February 19, 2018 report stated that Mr. Lara had “advanced” Alzheimer’s
dementia, as well as impaired memory and limited insight and judgment.
Id. at 51.
Following the parties’ post-hearing briefing, the district court denied Mr.
Quezada-Lara’s motion to suppress. Id. at 41–59. The district court concluded that
Mr. Lara had actual authority to consent to the search because his familial
6
relationship with both Mr. Quezada-Lara and Ms. Lara gave rise to a presumption of
control for most of the property. Id. at 51–54, 58. The district court also found that
Mr. Lara voluntarily consented to the search, despite his Alzheimer’s dementia, given
that at the time of the search, he was lucid and gave coherent answers to the agents’
questions.
Id. at 54–58.
The court also found that the agents did not use any
coercive tactics to obtain the consent and that the agents’ testimony was
“straightforward and credible.”
Id. at 57.
Mr. Quezada-Lara subsequently entered
into a plea agreement, pleading guilty to both counts of the indictment but reserving
his right to appeal the denial of his motion to suppress.
Id. at 60–71.
The district
court sentenced him to 48 months’ imprisonment.
Id. at 72–75.
He timely filed a
notice of appeal.
II
In reviewing the denial of a motion to suppress, we accept the district court’s
factual findings unless they are clearly erroneous, and we view the evidence in the
light most favorable to the government. United States v. Worthon, 520 F.3d 1173,
1178 (10th Cir. 2008). “The credibility of witnesses, the weight accorded to
evidence, and the reasonable inferences drawn therefrom fall within the province of
the district court.”
Id. However, we review de novo the ultimate determination of
reasonableness under the Fourth Amendment.
Id.
The Fourth Amendment protects “[t]he right of the people to be secure in their
person, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. “It is axiomatic that the physical entry of the home is the
7
chief evil against which the wording of the Fourth Amendment is directed.” Welsh v.
Wisconsin, 466 U.S. 740, 748 (1984) (quotations omitted). A principal protection
against unnecessary intrusions into the home by police is the Fourth Amendment’s
warrant requirement.
Id. Thus, warrantless searches and seizures inside the home
are presumptively unreasonable. Payton v. New York,
445 U.S. 573, 586 (1980).
Nonetheless, the “Fourth Amendment recognizes a valid warrantless entry and
search of premises when police obtain the voluntary consent of an occupant who
shares, or is reasonably believed to share, authority over the area in common with a
co-occupant who later objects to the use of evidence so obtained.” Georgia v.
Randolph, 547 U.S. 103, 106 (2006). “In other words, a third party who voluntarily
consents to the search of commonly held property must have actual or apparent
authority to do so.” United States v. Thompson,
524 F.3d 1126, 1132 (10th Cir.
2008).
In addition, the Fourth Amendment requires that consent be voluntary and “not
be coerced, by explicit or implicit means, by implied threat or covert force.”
Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973). “The government bears the
burden of proving that consent is given freely and voluntarily.” United States v.
Harrison,
639 F.3d 1273, 1278 (10th Cir. 2011). Voluntariness is a factual finding
that is determined under the totality of the circumstances.
Bustamonte, 412 U.S. at
226. Thus, we review the district court’s determination of voluntariness for clear
error.
Thompson, 524 F.3d at 1133. “A district court’s factual finding is clearly
erroneous when it is without factual support in the record or if, after reviewing all the
8
evidence, we are left with a definite and firm conviction that a mistake has been
made.” United States v. Cash, 733 F.3d 1264, 1273 (10th Cir. 2013) (quotation
omitted). That is, as long as the district court’s account of the evidence is plausible
in light of the record viewed in its entirety, we will not reverse. Anderson v. City of
Bessemer City,
470 U.S. 564, 573–74 (1985).
III
Mr. Quezada-Lara makes several new arguments that he did not make before
the district court. Mr. Quezada-Lara failed to file a reply brief, even though the
government raised the issue of waiver in its response. Aple. Br. at 1, 14, 27.
Mr. Quezada-Lara argues that the backyard of the residence is part of its
curtilage and that the agents violated the Fourth Amendment by entering it. Aplt. Br.
at 16, 20. He also argues that agents conducted an improper protective sweep, id. at
20–23, and that Mr. Lara lacked authority to consent because agents were not told he
resided at the home until after he signed a written consent
, id. at 23. None of these
arguments were made before the district court—not in Mr. Quezada-Lara’s motion to
suppress or in his closing brief. See ROA, Vol. I at 15–18 (motion to suppress);
id. at
33–40 (closing brief).
“An argument not raised in the suppression motion, however, is waived.”
United States v. Warwick, 928 F.3d 939, 944 (10th Cir. 2019) (citing United States v.
Burke,
633 F.3d 984, 987 (10th Cir. 2011) (“But none of these arguments was
presented to the district court at the suppression hearing, and they are therefore
waived on appeal.”)). “Indeed, we are required under Federal Rule of Criminal
9
Procedure 12(e) to decline review of any argument not made in a motion to suppress
evidence and raised for the first time on appeal, unless good cause can be shown why
the argument was not raised below.” Warwick, 928 F.3d at 944.
It is true that “Rule 12 was amended after our decision in Burke. But we
recently held the 2014 amendments ‘did not change the standard for appellate review,
[and] Burke remains good law.’” Id. at n.2 (quoting United States v. Bowline,
917
F.3d 1227, 1236 (10th Cir. 2019)) (alteration in Warwick). Under Burke, “a
suppression argument raised for the first time on appeal is waived (i.e., completely
barred) absent a showing of good cause for why it was not raised before the trial
court.” 633 F.3d at 988 (emphasis added). Moreover, Burke “applies not only where
the defendant failed to file a suppression motion at all in the district court, but also
where the motion filed lacked the specific issues raised on appeal.”
Id. at 988–89.
Unless good cause is shown, Bowline precludes us from engaging in plain error
review. 917 F.3d at 1237. But even if Mr. Quezada-Lara could show good cause, he
would have to also argue for the application of plain error review. See United States
v. Gonzalez-Huerta,
403 F.3d 727, 733 (10th Cir. 2005) (noting that the appellant
bears the burden of showing plain error). He does not make that argument here.
In addition to failing to show good cause and argue for plain error review, Mr.
Quezada-Lara failed to file a reply brief, despite the government raising the issue of
waiver in its response. See, e.g., Aple. Br. at 1, 14, 27. Accordingly, these
arguments are waived, and “we must decline review.” Warwick, 928 F.3d at 945; see
Burke, 633 F.3d at 988 (concluding that the defendant “waived appellate review of
10
[certain] suppression arguments” because he “made no showing of cause in his
opening brief, and he failed to do so again in his reply brief despite the government’s
raising the waiver issue in its response”).
A. Whether consent was voluntary
Mr. Quezada-Lara argues that Mr. Lara’s consent was involuntary because of
(1) Mr. Lara’s dementia and (2) coercive tactics employed by the agents. Aplt. Br. at
24–35. This argument is preserved for our review. Mr. Quezada-Lara challenged the
voluntariness of the consent on these grounds before the district court, and the district
court ruled on them. See ROA, Vol. I at 38 (Mr. Quezada-Lara arguing that the
consent was involuntary because of the time of night, number of armed agents, and
Mr. Lara’s dementia); id. at 56–57 (the district court finding that “the record is
devoid of evidence that the agents attempted to coerce Mr. Lara or exploit any of his
vulnerabilities” and that “[t]he testimony of the FBI agents establishes that at the
time of the search, Mr. Lara appeared to be lucid”). Voluntariness is a factual
finding determined under the totality of the circumstances, which we review for clear
error.
Thompson, 524 F.3d at 1133.
1. Mr. Lara’s mental condition.
As in United States v. Sims, 428 F.3d 945 (10th Cir. 2005), “the most troubling
issue is whether, given [Mr. Lara’s] mental condition, his consent was nonetheless
the ‘product of a rational intellect and a free will’ and made with a ‘mental awareness
so that the act of consent was that of one who knew what he was doing.’”
Id. at 953
(quoting United States v. Gay,
774 F.2d 368, 377 (10th Cir. 1985)). This mental
11
awareness “requires both understanding and judgment.” Id. But “our cases have
never required perfect mental ability to find a consent to search was voluntary.”
Id.
In Gay, for instance, we concluded that the defendant’s argument that consent was
involuntary had “no merit” where the defendant was so intoxicated that he “was
staggering and swaying as he walked” and slurred his speech, but was able to answer
questions and produce his driver’s license upon
request. 774 F.2d at 375–77.
In determining whether a district court’s finding of voluntariness was clearly
erroneous, our cases have considered whether the impairment was apparent to the
officers, emphasizing that our inquiry regarding impairment focuses on the
individual’s condition at the time of the search, rather than at a later date. For
example, in Sims, 428 F.3d at 953, we upheld the district court’s finding of
voluntariness despite suggestions in the record that the defendant suffered from
dementia, “a degenerative disorder that could ultimately affect [the defendant’s]
judgment.” We reasoned that the district court’s finding was not clearly erroneous
given that the defendant did “not point[ ] this court to any specific evidence of the
extent of his impairment at the time of his consent to search,” the police testified
“that no aspect of [the defendant’s] dysfunction was apparent to them,” and there was
no evidence that the officers “had attempted to exploit any of his vulnerabilities.”
Id.
Mr. Quezada-Lara contends that Mr. Lara’s dementia rendered his consent
involuntary, and, for support, he relies on (1) the fact that he “had no idea where he
was, or what was happening” at the suppression hearing, Aplt. Br. at 31; (2) his
daughter’s testimony at the suppression hearing that he had dementia for five years,
12
id. at 32; and (3) medical records presented to the district court that were created
months after the search
, id.
These arguments fail because, as in Sims, the agents here testified that no
aspect of Mr. Lara’s dysfunction was apparent to them, and the district court credited
that testimony. See ROA, Vol. I at 57. The agents testified that Mr. Lara was
friendly, cooperative, showed no signs of dementia, and seemed to understand what
was going on because his answers were responsive to their questions. See, e.g.
, id.,
Vol. II at 11, 74. For instance, when asked if he would consent to a search, Mr. Lara
nodded affirmatively and signed the consent-to-search form.
Id. at 79–80. He was
also able to explain that he was Mr. Quezada-Lara’s grandfather, and that he lived in
the home with him.
Id. at 76. In addition, he knew that his daughter had gone to
Mexico
, id. at 94, and he told the agents that Mr. Quezada-Lara had come to the
home earlier that day to take a shower, which agents confirmed when they found
some of his clothing in the bathroom
, id. at 19. Moreover, like in Sims, “the district
court found no evidence that the police had attempted to exploit any of his
vulnerabilities.” 428 F.3d at 953; see ROA, Vol. I at 57 (“[T]he record is devoid of
evidence that the agents attempted to . . . exploit any of his vulnerabilities.”).
Mr. Lara’s testimony at the March 30, 2018 suppression hearing says nothing
about the extent of his impairment at the time of the search, given that the
suppression hearing took place more than nine months after the search. The same is
true of the medical records introduced. As to his daughter’s testimony that Mr. Lara
had dementia at the time of the search, the district court found that her testimony
13
suggested that “his dysfunction was limited and perhaps not apparent because he was
largely able to care for himself.” Id. In other words, while her testimony indicated
that he had dementia (which was true of the defendant in Sims), it also indicated that
the “extent of his impairment at the time of his consent to search” was not severe.
Sims, 428 F.3d at 953. Moreover, Ms. Lara’s testimony does not show that the
dysfunction was “apparent to [the agents].”
Id. Indeed, the agents testified that no
aspect of the dysfunction was apparent to them, which is consistent with his
daughter’s testimony suggesting that his dysfunction was limited at the time of the
search. And, in any event, “our cases have never required perfect mental ability to
find a consent to search was voluntary.”
Id. Considering the evidence in the light
most favorable to the government, the district court did not clearly err in finding that
Mr. Lara was mentally capable to consent.
2. Coercive police tactics alleged
Mr. Quezada-Lara also argues that Mr. Lara’s consent was involuntary because
of coercive police tactics, stating that the agents: (a) awoke him late at night;
(b) pointed rifles at him; (c) allegedly broke his bedroom window; (d) told him to
come out to the back porch; (e) yelled into the house for other occupants to come
outside; (f) did not ask for consent to accompany him into the residence; (g) did not
tell him that they wanted to search for guns and drugs before he signed the consent-
to-search form; and (h) did not explain that he had a right to refuse consent to the
search. Aplt. Br. at 29–30, 33. He also contends (i) that the number of agents
present had a coercive effect. Id. at 33.
Before the district court, Mr. Quezada-Lara
14
relied only on grounds (a), (h), and (i). See ROA, Vol. I at 38 (arguing that consent
was involuntary when “[c]oupling his dementia . . . with the time of night . . . and the
number of armed agents” and noting that “apparently [Agent Stemo] did not explain
to him that he had a right to refuse”). The other arguments are therefore waived.
Again, “the question whether a consent to a search was in fact ‘voluntary’ or
was the product of duress or coercion, express or implied, is a question of fact to be
determined from the totality of all the circumstances.” Bustamonte, 412 U.S. at 227.
Regarding coercion, relevant factors “include physical mistreatment, use of violence,
threats, promises, inducements, deception, trickery, or an aggressive tone, . . . the
number of officers on the scene, and the display of police weapons.” United States v.
Sawyer,
441 F.3d 890, 895 (10th Cir. 2006) (citations omitted). The district court
found that “the record is devoid of evidence that the agents attempted to coerce Mr.
Lara or exploit any of his vulnerabilities.” ROA, Vol. I at 57.
We review each of Mr. Quezada-Lara’s coercion arguments below, noting
which arguments have been preserved and which have been waived. We conclude by
analyzing whether the preserved arguments outweigh the numerous factors indicating
that Mr. Lara’s consent was not coerced.
(a) Time of day
Mr. Quezada-Lara argues that because the agents came to the residence in the
middle of the night, their request that Mr. Lara sign a consent form was coercive.
The arrival of police officers at a home in the middle of the night can be more
coercive than their arrival during the day, but this factor alone does not show that the
15
consent was involuntary. See United States v. Abdenbi, 361 F.3d 1282, 1288, 1292
(10th Cir. 2004) (concluding that “the record is void of any indication that [the third
party’s consent] was threatened or coerced in any way” even though the third party
was contacted at his home “very early in the morning”). Thus, while this factor
likely weighs against a conclusion that the consent was voluntary, the district court’s
ruling was based on a totality of the circumstances.
(b) Showing of force
As for the argument that the consent was involuntary because the agents
pointed rifles at Mr. Lara, Mr. Quezada-Lara never made this argument before the
district court. He relied only on the “number of armed agents,” ROA, Vol. I at 38,
never mentioning the agents pointing their rifles at Mr. Lara. This argument is
therefore waived.
(c) The broken window
Next, without record support, Mr. Quezada-Lara contends that the consent was
involuntary because “agents br[oke the] bedroom window.” Aplt. Br. at 29. Mr.
Quezada-Lara never made this argument before the district court. It is therefore
waived. While Mr. Quezada-Lara pointed in his district court briefing to testimony
showing that the window had a hole in it, see ROA, Vol. I at 35, he never stated who
broke the window, or that the agents’ purported breaking of the window made the
consent involuntary or a product of coercion, see id.
16
(d), (e), (f) Requesting Mr. Lara come to the back porch; yelling for
others in the home to come outside; and lack of consent to accompany
him into the kitchen
None of these arguments were raised below. They are therefore waived.
Regardless, Agent Acee testified that they moved Mr. Lara to the porch because they
thought an exchange of gunfire with Mr. Quezada-Lara was possible, id., Vol. II at 57,
and the agents were yelling to find out who else was in the home, see
id. at 42. As the
government points out, these actions had a “valid, non-coercive purpose,” so they do not
undermine the district court’s finding of voluntariness.
Warwick, 928 F.3d at 946.
Moreover, there is no evidence that Mr. Lara later went into the kitchen with agents
unwillingly. Agent Stemo asked him if he would go inside, and both of them went to the
kitchen. ROA, Vol. II at 75.
(g) Whether agents told Mr. Lara of the purpose of the search
Next, Mr. Quezada-Lara argues that the consent was involuntary because
agents did not tell Mr. Lara they were searching for guns and drugs. This argument
was not raised before the district court, so this argument, too, is waived. In fact, Mr.
Quezada-Lara argued the opposite below—that agents “indicated [at the suppression
hearing] that they explained [to Mr. Lara] that they wanted to search the house for
contraband.” Id., Vol. I at 36.
(h) Right to refuse consent
Mr. Quezada-Lara next contends that the consent was involuntary because Mr.
Lara was not asked if he understood that he had a right to refuse the search.
Although Mr. Quezada-Lara raised this argument before the district court, the record
17
indicates that Agent Stemo read the consent-to-search form to Mr. Lara, including its
statement, “I’ve been informed of my right to deny permission to search.” Id., Vol. II
at 77. After the consent-to-search form was read to Mr. Lara, he signed it. In United
States v. Iribe,
11 F.3d 1553, 1557 (10th Cir. 1993), we concluded that “the evidence
indicates that [the] consent was intelligently given” because the third-party “signed a
consent to search form [and t]he form contained a clause discussing the right to
refuse consent.” The same holds true here. See also
Warwick, 928 F.3d at 945 (“A
signed consent form indicates voluntary consent.”). And, in any event, “knowledge
of the right to refuse consent” is not “a necessary prerequisite to demonstrating a
‘voluntary’ consent.”
Bustamonte, 412 U.S. at 232–33.
(i) The number of agents present
Without stating the specific number of agents present at the time of the search,
Mr. Quezada-Lara argues that the number of agents made the consent involuntary.
Mr. Quezada-Lara raised this argument before the district court. While the presence
of more than one officer increases the coerciveness of an encounter, Iribe, 11 F.3d at
1557, “that alone does not render consent per se involuntary.”
Thompson, 524 F.3d
at 1134. Although ten to twelve officers were present at the residence here, ROA,
Vol. II at 35–36, only three officers were present with Mr. Lara when his consent was
requested.
Id. at 98–99;
see
Thompson, 524 F.3d at 1134 (concluding that consent
was voluntary where “the record demonstrate[d] that when [the officer] requested
permission to search . . . [the third-party] was approached by three police officers”).
Regardless, the number of officers present does not “outweigh[] the numerous factors
18
indicating that [Mr. Lara] voluntarily consented to the search of the house.” Iribe, 11
F.3d at 1557.
3. Factors indicating a lack of coercion
In sum, regarding coercion, we are left with only three arguments preserved
for appellate review: the time of day; the number of agents present; and the alleged
failure to inform Mr. Lara that he could refuse consent. As for his right to refuse
consent, Mr. Lara signed a form containing a clause describing his right to refuse.
The number of officers present here and the fact that the search occurred in the
middle of the night, however, both tend to make the officers’ request to search more
coercive than had it occurred during the day with only a single officer. But these
factors do not outweigh the numerous factors indicating that Mr. Lara’s consent was
voluntary and not a product of coercion.
The agents did not engage in coercive tactics such as “physical mistreatment
. . . threats, promises, inducements, deception, trickery, or an aggressive tone.”
Warwick, 928 F.3d at 945. The record also “does not reveal that [Mr. Lara] felt
coerced, frightened or otherwise threatened” at the time he gave consent to search.
Iribe, 11 F.3d at 1557. To the contrary, agents testified that Mr. Lara was joking
with them, that he was “[c]alm and friendly,” even offering to make them food, and
there is no evidence that he was handcuffed or restrained. ROA, Vol. II at 21, 73–74,
81, 90–91, 94; see
Warwick, 928 F.3d at 945 (the fact that the defendant “was
friendly and comfortable enough to engage the agents in small talk and jokes”
supported finding that he voluntarily consented to a search);
Iribe, 11 F.3d at 1557
19
(emphasizing that “[t]he conversation between [the officer] and [the third-party]
regarding her consent to search the house was cordial and spoken in low volume”).
And, as in Iribe, “[n]o promises or threats were made in an attempt to extract [his]
consent.” 11 F.3d at 1557. Agent Stemo read the consent-to-search form to Mr. Lara
in Spanish, including its statement that he had a right to refuse consent, and he signed
it without hesitation. Given the numerous factors indicating Mr. Lara’s consent was
not a product of coercion, the time of day and the number of agents present do not
render the district court’s finding clearly erroneous.
B. Whether the search exceeded the scope of the consent
Finally, Mr. Quezada-Lara argues that “the search that took place exceeded the
scope of any consent as Mr. Lara was not told agents were searching for drugs and
firearms until after his written consent was obtained.” Aplt. Br. at 24 (capitalization
omitted). This argument was not made before the district court, and he has not
attempted to show good cause. Before the district court, Mr. Quezada-Lara did note,
in setting forth the general legal standards, that a search cannot exceed the scope of
the consent given. See ROA, Vol. I at 16. But he never argued that the search
exceeded the scope of the consent given by Mr. Lara here. See id. at 15–18, 33–40.
Thus, the argument has been waived.
20
IV
For the foregoing reasons, we AFFIRM the district court’s denial of Mr. Quezada-
Lara’s motion to suppress.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
21
