U.S. v. Enslin

• Decision Date: 13 January 2003
• Docket Number: No. 02-50087.,02-50087.
• Citation: 315 F.3d 1205
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby Der ENSLIN, aka Bobby De Enslin, Bobby Enslin D, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

315 F.3d 1205

UNITED STATES of America, Plaintiff-Appellee, v. Bobby Der ENSLIN, aka Bobby De Enslin, Bobby Enslin D, Defendant-Appellant.

No. 02-50087.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 5, 2002.

Filed January 13, 2003.

COPYRIGHT MATERIAL OMITTED

Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Patrick K. O'Toole, United States Attorney (when brief was filed), Carol C. Lam, United States Attorney (when opinion was filed), Jill Burkhardt, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Napoleon A. Jones, District Judge, Presiding. D.C. No. CR-01-02330-NAJ.

Before: D.W. NELSON and T.G. NELSON, Circuit Judges, and SCHWARZER,^* District Judge.

OPINION

T.G. NELSON, Circuit Judge:

Bobby Der Enslin appeals his criminal conviction for being a felon in possession of a firearm.¹ He contends that the district court wrongfully denied his motion to suppress evidence from a warrantless search and evidence obtained after he was seized unlawfully. He further contends that the indictment was fatally flawed because it failed to allege a mens rea for his felon status. We affirm because we conclude that (1) even if the person who voluntarily consented to the search did not have authority to consent, the U.S. marshals appropriately relied upon her apparent authority; (2) the seizure imposed a de minimis obligation upon Enslin to show his hands while the marshals searched the room; and (3) United States v. Miller² is controlling authority in this circuit, and it appropriately rejected any mens rea requirement for the felon status element of the felon in possession statute.

I. FACTS AND PROCEDURAL HISTORY

Enslin was truly in the wrong place at the wrong time. Seven U.S. marshals were searching for a fugitive named Mickey Bass to execute an arrest warrant. Relying upon a tip that Bass had frequented John and Shannon Palacios' house, they approached the house dressed in plain clothes.³

At a subsequent suppression hearing, the marshals testified about the ensuing events. They knocked and identified themselves to Larry Chance, Shannon Palacios' brother. When Shannon Palacios subsequently joined Chance at the door, they asked her if Bass was there and when she replied that he was not, they requested permission to search the house. Shannon Palacios gave them consent to search the house: she did not limit her consent to any part of the house or give any indication that she could not consent to their search of any part of the house, although the marshals admitted that she did not give them particularized consent to search the back bedroom where they subsequently found Enslin. The marshals also admitted that they did not tell her that she had a right not to consent or read her the Miranda warnings.

The marshals entered the house and began searching for Bass. Two of them, Deputy Marshals Maddry and Kitts, went down the hallway and into the back bedroom. Although the back bedroom door had a key lock, there is no indication in the record that the door was locked. When the marshals entered the room, Enslin was in bed, apparently having just awakened from sleep. Enslin's hands were concealed underneath the covers.

Concerned for their safety while they searched the room for Bass, Maddry and Kitts ordered Enslin to show his hands. The record indicates that the marshals likely had their hands on their weapons at the time. When Enslin put his hands in the air and began to sit up, his movement shifted the covers and the marshals could see a gun in the bed next to him. The marshals drew their weapons and placed Enslin under arrest. Only later did they learn that Enslin was on parole. He was charged subsequently and convicted of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Shannon Palacios testified at the suppression hearing and contradicted some of the marshals' testimony. However, her testimony was confusing and inconsistent, and she was unable to remember many things about the events of that morning. She stated that she did not meet the marshals at the door: they just came into her home. Furthermore, she testified that she did not give consent to search (although she could not remember whether the marshals asked for consent).

During the previous three months, she had rented the back bedroom to a man named Pat Dicker. Shannon Palacios never entered the room when Dicker lived there. However, she was having trouble getting Dicker to leave, so she enlisted the help of Enslin, who stayed in Dicker's room at her request. Enslin had only stayed for a few nights in the back bedroom, and he did not pay rent or have any sort of lease agreement with the Palacios. Dicker slept in the back bedroom as recently as three nights prior to the search. Along with some items belonging to Enslin, the back bedroom contained furniture owned by the Palacios as well as some personal belongings that Dicker had yet to remove. The district court expressed concern over the credibility of Shannon Palacios' testimony.

John Palacios also testified at the suppression hearing. He was in the front bedroom watching television when the marshals entered. Despite the fact that the front door was very close to his open bedroom window, he did not hear any conversation between the marshals and Chance or Shannon Palacios until Chance said "cops." When he walked out of his bedroom, the marshals were in the living room.

The district court determined that Shannon Palacios consented to the search and that she had authority to do so. According to the court, Enslin did not have a reasonable expectation that Shannon Palacios could not allow others to enter the room because he was staying in a room that contained the furniture and belongings of a third party. The court further determined that the gun was in plain view once Enslin moved his hands from under the covers. Therefore, the court refused to suppress the gun. Finally, the court denied Enslin's motion to dismiss the indictment for failure to allege a mens rea requirement for his felon status.

II. JURISDICTION AND STANDARD OF REVIEW

Enslin timely appealed his criminal conviction. Therefore, we have jurisdiction pursuant to 28 U.S.C. § 1291.

We review a district court's refusal to grant a motion to suppress de novo.⁴ Whether consent to search is voluntary depends upon the totality of the circumstances and is a question of fact that we review for clear error.⁵ However, whether a person has apparent authority to consent is a mixed question of law and fact that we review de novo.⁶

We review whether an encounter between a defendant and law enforcement is a seizure de novo as a mixed question of law and fact as well.⁷ Finally, when a defendant has properly objected, we review the sufficiency of the indictment de novo.⁸

III. DISCUSSION

A. The marshals searched the bedroom pursuant to consent from a resident with apparent authority to consent.

Enslin contends that Shannon Palacios did not voluntarily consent and that, even if she did, she did not have actual or apparent authority to consent to the search of the back bedroom. Therefore, our analysis must proceed through several steps in order to address Enslin's claim on appeal. We will first address whether Shannon Palacios' consent was voluntary. Next, we will discuss her authority to consent.

1. Enslin has not shown that the district court clearly erred in concluding that Shannon Palacios consented to the search voluntarily.

Consent to search is a well-established exception to the Fourth Amendment's prohibition of warrantless searches of homes.⁹ However, the consent must be voluntary, not a mere submission to an assertion of authority.¹⁰ Although the Government must show consent,¹¹ Enslin has a difficult burden to overcome in order to prevail on this appeal because the district court found that Shannon Palacios voluntarily consented, discounting her testimony to the contrary. The district court is in the best position to make credibility determinations, and Enslin has not shown any reason for us to conclude that the district court erred, let alone that the district court clearly erred,¹² in making this determination.¹³ Thus, we conclude that the district court properly found that Shannon Palacios voluntarily consented to the search.

2. Assuming that Enslin could show that the district court erred in concluding that Shannon Palacios had actual authority, she certainly had apparent authority to consent to the search.

Voluntariness alone does not end our inquiry. The Government must also show that Shannon Palacios had either actual or apparent authority to consent to the search.¹⁴ To establish apparent authority, the Government must show that: (1) the marshals believed an untrue fact that they used to assess Palacios' control of the back bedroom; (2) it was objectively reasonable for the marshals to believe that the fact was true; and (3) if the fact was true, Palacios would have had actual authority to consent.¹⁵

Assuming Palacios did not have actual authority, the Government made the necessary showing to establish that she had apparent authority. The marshals knew that John and Shannon Palacios were the residents of the house. The marshals did not know or have reason to believe that the Palacios rented the back bedroom in the past or that Enslin was staying in the back bedroom. A person who identified herself as Shannon Palacios came to the door in response to their arrival and gave them unlimited permission to search the house. Therefore, even assuming that Shannon Palacios did not have actual authority to consent, it was objectively reasonable for the marshals to rely upon her consent to search the back bedroom.¹⁶

Enslin relies upon United States v. Reid to argue that just because Shannon Palacios answered the...