U.S. v. Brown

• Decision Date: 17 April 2009
• Docket Number: No. 08-30040.,08-30040.
• Citation: 563 F.3d 410
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David T. BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

563 F.3d 410

UNITED STATES of America, Plaintiff-Appellee, v. David T. BROWN, Defendant-Appellant.

No. 08-30040.

United States Court of Appeals, Ninth Circuit.

Submitted March 13, 2009.^*

Filed April 17, 2009.

Kimberly A. Deater, Spokane, WA, for the defendant-appellant.

Aine Ahmed, Assistant United States Attorney, Spokane, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington, Justin L. Quackenbush, Senior District Judge, Presiding. D.C. No. CR-07-00068-JLQ.

Before: W. FLETCHER, RONALD M. GOULD and RICHARD C. TALLMAN, Circuit Judges.

TALLMAN, Circuit Judge:

David Brown pleaded guilty to being a felon in possession of firearms and ammunition. On appeal, Brown contests the denial of his pretrial motion to suppress the firearms and ammunition seized during a search of the home in which he had been staying for several nights. A co-occupant of the home consented to the search. Brown had been arrested while walking down the street, not far from the home, with the female co-occupant, and was sitting in a police car in custody when her consent was obtained. Brown contends that her consent was not voluntary, and furthermore that her consent was ineffective as to him because officers should have sought his permission pursuant to Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). We have jurisdiction under 28 U.S.C. § 1291, reject his arguments, and affirm.

I

On April 3, 2007, Special Agent Dale Watson of the Bureau of Alcohol, Tobacco, Firearms and Explosives received information from a confidential informant that Brown, wanted on an outstanding warrant for the felony offense of second degree assault, was staying at 807 East Augusta Avenue (the "East Augusta Residence") in Spokane, Washington, and was in possession of two firearms. Agent Watson and several members of the Spokane Gang Enforcement Team set up surveillance in the neighborhood and soon spotted Brown walking with Lacie Rishel. The officers approached with guns drawn. Both Brown and Rishel were ordered to the ground, handcuffed, and patted down for weapons. No firearm was found on Brown's person. The officers arrested Brown on the outstanding warrant, placed him in a squad car, and eventually transported him to the Spokane County Jail. At no time did Agent Watson ask Brown for permission to search the East Augusta Residence.

Agent Watson initiated a discussion with Rishel while she was in handcuffs. The parties dispute how long Rishel was in handcuffs and when during her exchange with Agent Watson they were removed. Because the district court denied Brown's suppression motion, we interpret the evidence from the suppression hearing in the light most favorable to the government absent a contrary factual finding by the court. See United States v. Patayan Soriano, 361 F.3d 494, 501 (9th Cir.2004). Rishel informed Agent Watson that she lived at the East Augusta Residence with her boyfriend, Devion Tensley, and that Brown had been sleeping on their couch for the past few nights as their guest. At the suppression hearing, Agent Watson and Rishel offered conflicting testimony on how the discussion progressed thereafter.

Agent Watson testified that after informing Rishel that Brown was likely in possession of two firearms and that these were probably located at the East Augusta Residence, Rishel "adamantly denied" this and stated, "Well, you know what, you can come down and look if you want." On cross-examination, Agent Watson repeatedly denied that he or any other officer told Rishel either that they had enough evidence to get a search warrant or that they would "mess[the] house up" and "slice [the] couches" if forced to obtain one.

During direct and redirect examination, Rishel denied inviting Agent Watson to search the East Augusta Residence. To the contrary, Rishel claimed that the officers threatened not only to lock her out until they obtained a search warrant, but also to "tear [the] place apart" if forced to take that route. She stated that she only agreed to the search because of these threats. Upon cross-examination, however, Rishel also admitted to Agent Watson's version of the events:

Q. [D]o you recall telling agent Watson ... that you didn't believe that there were any firearms in your apartment and if he wanted to, he could search it, do you recall saying that to him?

A. Right, yes.

Q. Before he ever asked you anything about searching that apartment, any consent or whatever, you offered him the opportunity to search your apartment, did you not?

A. Right.

(Emphasis added.) The district court found that Rishel spontaneously volunteered consent without any prompting by Agent Watson.

The parties agree that after her exchange with Agent Watson, Rishel walked back to the East Augusta Residence alone. Agent Watson testified that because Rishel expressed concern that her landlord would be upset by law enforcement activity, the officers removed some police insignia before meeting Rishel at home. Rishel denied making such a request, and further claimed that the officers were already waiting for her outside the East Augusta Residence when she arrived.

Agent Watson's and Rishel's accounts of the search itself are mostly in accord. After entering the apartment, Agent Watson asked if he could search the area where Brown had slept, and Rishel consented. Agent Watson found a semiautomatic pistol under a couch cushion. Upon probing by the agents, Rishel revealed that the revolver was likely in the bedroom she shared with Tensley. After Agent Watson asked Rishel if he could search the bedroom and she consented, he found a .357 caliber revolver in a chest of drawers.

Tensley, Rishel's boyfriend, arrived at the East Augusta Residence after the officers had finished their search. Agent Watson explained that Brown had been arrested on an outstanding warrant, that Rishel had consented to a search of the East Augusta Residence, and that two firearms had been found. Because Rishel expressed fear of Tensley's reaction should he learn of her cooperation, Agent Watson also asked Tensley not to be upset with Rishel for consenting to the search—adding that he believed he had probable cause for a search warrant and likely would have applied for one had he needed to do so.

Brown was charged by indictment with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924. After hearing testimony, the district court denied Brown's motion to suppress the two firearms and ammunition. The court found that Rishel gave knowing and voluntary consent to search the apartment. The court also concluded that the officers did not violate the mandate of Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), because Brown was placed in the police car pursuant to his arrest and prior to any discussion between Agent Watson and Rishel. Brown pleaded guilty but reserved the right to appeal the district court's ruling.

II

We review de novo the denial of a motion to suppress evidence. United States v. Davis, 530 F.3d 1069, 1077 (9th Cir.2008). We review the underlying factual findings for clear error. Id.

A

We first address Brown's contention that the district court erred in finding that Rishel validly consented to search of the East Augusta Residence. "We review for clear error a district court's determination of the voluntariness of a defendant's consent to a search." United States v. Todhunter, 297 F.3d 886, 891 (9th Cir. 2002). "Review under the clearly erroneous standard is significantly deferential, `requiring for reversal a definite and firm conviction that a mistake has been committed.'" United States v. Elliott, 322 F.3d 710, 714 (9th Cir.2003) (quoting United States v. Maldonado, 215 F.3d 1046, 1050 (9th Cir.2000)). Moreover, "evidence regarding the question of consent must be viewed in the light most favorable to the fact-finder's decision." Patayan Soriano, 361 F.3d at 501 (quoting United States v. Kaplan, 895 F.2d 618, 622 (9th Cir.1990)). Thus, "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Id. at 503 (quoting United States v. Garcia, 135 F.3d 667, 671 (9th Cir.1998)).

A warrantless search is unconstitutional unless the government demonstrates that it "fall[s] within certain established and well-defined exceptions to the warrant clause." United States v. Murphy, 516 F.3d 1117, 1120 (9th Cir. 2008) (quoting United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1298 (9th Cir.1988)). Consent constitutes one such exception: "[A warrantless] search conducted pursuant to a valid consent is constitutionally permissible." Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The government bears the burden of proving that consent was voluntary. Patayan Soriano, 361 F.3d at 501. Whether consent to search was voluntarily given is "to be determined from the totality of all the circumstances." Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041. We consider five factors in determining voluntariness:

(1) whether the [consenting individual] was in custody; (2) whether the arresting officers had their guns drawn; (3) whether Miranda warnings were given; (4) whether the [consenting individual] was notified that she had a right not to consent; and (5) whether the [consenting individual] had been told a search warrant could be obtained.

United States v. Jones, 286 F.3d 1146, 1152 (9th Cir.2002) (citing United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1989)). These factors serve merely as guideposts, "not [as] a mechanized formula to resolve the voluntariness inquiry." Patayan Soriano, 361 F.3d at 502. Moreover, no one factor is determinative. Id. With respect to the first factor, a seizure occurs "when, `taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a...