U.S. v. Abdenbi

• Decision Date: 22 March 2004
• Docket Number: No. 02-1435.,02-1435.
• Citation: 361 F.3d 1282
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Samir Hedi Ben ABDENBI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

361 F.3d 1282

UNITED STATES of America, Plaintiff-Appellee, v. Samir Hedi Ben ABDENBI, Defendant-Appellant.

No. 02-1435.

United States Court of Appeals, Tenth Circuit.

March 22, 2004.

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John T. Carlson, Office of the Federal Public Defender (Michael G. Katz, Federal Public Defender, and Charles Szekely, Assistant Federal Public Defender, on the briefs), Denver, CO, for Defendant-Appellant.

James C. Murphy, Assistant United States Attorney (John W. Suthers, United States Attorney, with him on the brief), Denver, CO, for Plaintiff-Appellee.

Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and McCONNELL, Circuit Judge.

MURPHY, Circuit Judge.

I. Introduction

Defendant-appellant Samir Hedi Ben Abdenbi was charged, inter alia, with one count of fraud and misuse of a government identity document, in violation of 18 U.S.C. § 1546(a). He thereafter filed a motion to suppress all evidence discovered as a result of statements he made to federal agents during a warrantless search of his apartment. Abdenbi entered into a plea agreement wherein he agreed to plead guilty but preserved his right to appeal the district court's ruling on his motion to suppress. The district court denied Abdenbi's suppression motion, concluding that the encounter between Abdenbi and three federal agents which occurred in Abdenbi's apartment was wholly consensual.¹ Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the denial of Abdenbi's motion to suppress.

II. Factual Background

In February 2002, Kenneth Grubb, a special agent criminal investigator for the Social Security Administration Office of the Inspector General, received information from INS special agent Ross Godwin concerning a social security application. Agent Grubb was told that an individual named Janis Habib Jlassi had applied for a social security card using documents the INS suspected were false. Based on his review of the information provided by the INS and his subsequent investigation, Agent Grubb formed a belief that Jlassi was in the United States illegally. To confirm this belief, Grubb concluded that he needed to speak with Jlassi. Agent Godwin agreed to accompany Agent Grubb to the address Jlassi had provided on his social security application. Agent Grubb testified that his objective was to "speak to Mr. Jlassi and basically conduct an interview with him and see if ... he had submitted that application to Social Security."

On the morning of April 10, 2002, at approximately 6:15 a.m., Agents Grubb and Godwin arrived at Jlassi's apartment. They were accompanied by INS special agent Jayson Mallard. The agents did not have either an arrest warrant for Jlassi or a search warrant for the apartment. All three were dressed in street clothes and each carried a gun concealed by his clothing. Agent Godwin knocked on the apartment door and it was opened by Jlassi's roommate, Amour Bejaoui. The agents displayed their badges and asked Bejaoui if Jlassi was in the apartment. Bejaoui confirmed that Jlassi was asleep in the apartment. Grubb testified that the agents then "requested entry to the apartment so we could speak with Mr. Jlassi." Agent Mallard testified that Bejaoui opened the door, stepped aside, and said, "Yes, come on in."

The agents entered the apartment and moved down a hallway. Agent Godwin entered Jlassi's bedroom and Agent Grubb stopped at a second bedroom occupied by defendant Abdenbi. Agent Mallard testified that he remained in the hallway so he "could see inside both bedrooms and into the living room."

At the suppression hearing, Agent Grubb testified that Abdenbi was in bed, although it was unclear if he was asleep. He further testified that the bedroom door was open; the lights in the bedroom were off and it was "mostly dark"; that he stood in the doorway, not in the bedroom; and the only exit from the bedroom was the door leading to the hallway. During his direct examination, Agent Grubb testified that he identified himself as a police officer and "told [Abdenbi] that he needed to come out and requested that he step out somewhere where I could talk to him." On cross-examination, Grubb clarified his testimony, stating that he "asked [Abdenbi] to get out of the bedroom."² Grubb further testified that he did not physically touch Abdenbi, did not draw his weapon, and did not raise his voice. Abdenbi did not refuse the agent's request, but asked if he could put on some clothes.

After Abdenbi put on a shirt and shorts, he accompanied Agent Grubb and Mr. Bejaoui into the living room. Grubb testified that he then "waited for Agents Godwin and Mallard in the back room, and I just basically sat there with Mr. Bejaoui and Mr. Ben Abdenbi awaiting the arrival of the other two agents because at that point my case was concerning Mr. Jlassi." Agent Godwin then entered the living room and began questioning Abdenbi. Godwin asked Abdenbi biographical questions and then questioned him regarding his right to be in the United States. Abdenbi admitted that he was in the United States illegally. Godwin placed him under arrest.

Agent Mallard's testimony regarding the encounter with Abdenbi in his apartment differed only slightly from Agent Grubb's. On cross-examination, Agent Mallard first testified that he entered Abdenbi's bedroom and that Abdenbi was awake. Mallard then stated, however, that he could not remember whether his initial contact with Abdenbi occurred in the bedroom or the living room although he did remember that Agent Godwin was in the room.

Q. When you talked to [Abdenbi] about his immigration status, where was he?

A. Mr. Godwin was in the room. I believe I was in the room at that point also because we were — he told us there was a passport; I remember that.

Q. So you are not sure where you talked to him?

A. To be honest, initially the very first time I spoke to him, I don't remember exactly which room it was.

Defense counsel asked Mallard to clarify his testimony and the following exchange took place:

Q. And that for officer safety Mr. Grubb asked Mr. Abdenbi to go to the living room. He went to the living room along with Mr. Bejaoui, and then subsequent to that Godwin and yourself came to the living room after talking to Mr. Jlassi and then talked to Mr. Abdenbi. Is that the sequence of events or not?

A. That sounds correct, yes.

At approximately 8:00 a.m., the agents left the apartment with Abdenbi and Jlassi and proceeded to the INS office. Abdenbi signed a written waiver of his Miranda rights and was questioned further. After additional investigation, Abdenbi was charged with one count of using a social security account number obtained with false information in violation of 42 U.S.C. § 408(a)(7)(A); one count of fraud and misuse of a government identity document in violation of 18 U.S.C. § 1546(a); and one count of possession of a false identification document in violation of 18 U.S.C. § 1028(a)(6).

Abdenbi filed a motion to suppress "any and all evidence seized as a result of [his] illegal seizure and interrogation." The district court denied the motion³ and Abdenbi entered into a conditional plea agreement with the government, reserving the right to appeal the district court's ruling on his motion to suppress. This appeal followed.

III. Discussion

A. Standard of Review

This court reviews de novo, a district court's determination of reasonableness under the Fourth Amendment. United States v. Zabalza, 346 F.3d 1255, 1258 (10th Cir.2003). In the course of that review, we consider the evidence in the light most favorable to the government and will not overturn factual findings unless they are clearly erroneous. Id. at 1257-58. The question of whether consent to a warrantless search was given voluntarily is one of fact to be determined from all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 249, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The burden of proving voluntariness is borne by the government. Id. at 248, 93 S.Ct. 2041.

B. Initial Entry into the Apartment

"The Fourth Amendment generally prohibits the warrantless entry of a person's home, whether to make an arrest or to search for specific objects. The prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched, or from a third party who possesses common authority over the premises." Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (citations omitted). Abdenbi does not dispute that Bejaoui had authority to consent to the search of the apartment, but instead argues that Bejaoui's consent was not given voluntarily.

After examining the evidence presented at the hearing on the motion to suppress, the district court concluded that there was "no evidence of force, threat or coercion of any kind." On appeal, Abdenbi relies on "empirical data" set forth in several law review articles and an unpublished Ph.D. dissertation to support the broad proposition that almost all encounters with law enforcement officers carry an "air of menace" and implicit coercion. From this he argues that Bejaoui's consent was involuntary because no reasonable person ever feels free to decline an officer's request for permission to enter or search.

We cannot accept Abdenbi's broad proposition because it would have the practical effect of preventing all district courts in this circuit from ever finding that an individual's cooperation with law enforcement officials was voluntary. The correct approach remains that articulated by the Supreme Court in Schneckloth: "[T]he 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." 412 U.S. at 227, 93 S.Ct. 2041.

Our review of the record convinces us the district court's finding that Bejaoui voluntarily consented...