U.S. v. Enslin, 042403 FED9, 02-50087

Docket Nº:02-50087
Party Name:U.S. v. Enslin
Case Date:April 24, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit



BOBBY DER ENSLIN, aka Bobby De ORDER AND Enslin, Bobby Enslin D, AMENDED Defendant-Appellant.

No. 02-50087

United States Court of Appeals for the Ninth Circuit

April 24, 2003


Appeal from the United States District Court for the Southern District of California Napoleon A. Jones, District Judge, Presiding

Argued and Submitted December 5, 2002-Pasadena, California

Filed January 13, 2003 Amended April 24, 2003

Before: Dorothy W. Nelson and Thomas G. Nelson, Circuit Judges, and William W Schwarzer,[*] District Judge.

Opinion by Judge Thomas G. Nelson


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

Patrick K. O'Toole, United States Attorney, San Diego, Cali- fornia, for the plaintiff-appellee.

Jill Burkhardt, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.


The Opinion filed January 13, 2003, slip op. 331, and appearing at 315 F.3d 1205, is amended as follows:

1. At slip op. 344, line 4, insert the following footnote after "During their search,": The officers had lawful consent to search the entire house to look for a dangerous fugitive for whom they had an arrest warrant. They had not yet com- pleted their search. Thus, the officers were lawfully in the room when they found Enslin. Accordingly, Enslin's reliance upon Maryland v. Buie, 494 U.S. 325 (1990), is misplaced. Buie held that an officer must have reasonable suspicion to search previously unsearched areas of a house when the officers were present to execute an arrest warrant and they had already found and arrested the suspect. Id. at 334. In reaching this conclusion, the Supreme Court relied on the fact that the officers had already accomplished what they set out to achieve. Thus, their jus- tification for being in the house (to execute the arrest warrant) had evaporated. Id. at 332-33. In this case, the officers were lawfully in the room when they found Enslin because they had not completed their search. Second, in balancing the Fourth Amendment interests, the Buie Court concluded that entering into previously unsearched rooms was not de minimis. Id. at 333-34. In this case, as we have described above, ordering Enslin to show his hands was a minimal intrusion. 2. At slip op. 343, footnote 29, insert the following at the end of the first paragraph, line 3 from the bottom: Thus, Enslin's reliance upon cases that require rea- sonable suspicion for a Terry stop is misplaced. SeeUnited States v. Flippin, 924 F.2d 163, 167 (9th Cir.1991) (requiring reasonable suspicion before an offi- cer may forcibly remove a bag from the possession of an occupant during a consent search). These cases do not involve de minimis intrusions into individualliberty.

3. At slip op. 345, footnote 33, line 1, insert "in oral argu- ment" after "Contrary to Enslin's assertion".

With these amendments, the panel has voted unanimously to deny the petition for panel rehearing and the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED.


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 dis- trict 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. Miller 2 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.


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 them- selves 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. Shan- non Palacios gave them consent to search the house: she did not limit her consent to any part of the house or give any indi- cation 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 under- neath 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 mar- shals 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 remem- ber 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 mar- shals entered. Despite the fact that the front door was very close to his open bedroom window, he did not hear any con- versation between the marshals and Chance or Shannon Pala- cios 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 con- sented 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 con- tained 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 mensrea requirement for his felon status.


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 denovo4 Whether consent to search is voluntary depends upon the totality of the circumstances and is a ques- tion 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 oflaw and fact as well.7 Finally, when a defendant has properly objected, we review the sufficiency of the indictment de novo8


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 bed- room. 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 volun- tary....

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