U.S. v. Morning

• Decision Date: 28 August 1995
• Docket Number: D,94-10328,LEON-YANE,Nos. 94-10248,s. 94-10248
• Citation: 64 F.3d 531
• Parties: , 95 Cal. Daily Op. Serv. 6773, 95 Daily Journal D.A.R. 11,651 UNITED STATES of America, Plaintiff-Appellee, v. Laura Michelle MORNING, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Francisco Ignacioefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 531

64 F.3d 531

64 USLW 2179, 95 Cal. Daily Op. Serv. 6773,

95 Daily Journal D.A.R. 11,651

UNITED STATES of America, Plaintiff-Appellee, v. Laura Michelle MORNING, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Francisco Ignacio LEON-YANEZ, Defendant-Appellant.

Nos. 94-10248, 94-10328.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 10, 1995.

Decided Aug. 28, 1995.

Gary S. Kneip, Tucson, AZ, for defendant-appellant Laura Michelle Morning.

Thomas G. Hippert, Dardis & Hippert, Tucson, AZ, for defendant-appellant Francisco Ignacio Leon-Yanez.

Robert L. Miskell, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: CANBY and FERNANDEZ, Circuit Judges, and FITZGERALD, ^* District Judge.

FERNANDEZ, Circuit Judge:

Francisco Leon-Yanez conditionally pled guilty to conspiracy and to possession with intent to distribute marijuana in violation of 21 U.S.C. Secs. 841(a)(1), 846. Laura Michelle Morning conditionally pled guilty to misprision of Leon-Yanez's possession with intent to distribute felony. 18 U.S.C. Sec. 4. Both reserved the claim that evidence should have been suppressed because it was seized without a warrant and without consent. Both now appeal on that ground, and Morning also asserts that a prior conviction was improperly used in setting her criminal history score under the United States Sentencing Guidelines. We affirm.

BACKGROUND

In June of 1993, federal agents received information from a confidential source that a man named "Pancho" and a woman had marijuana at a particular residence. Border Patrol Agent Salim Dominguez and DEA Special Agent Mike Groseclose approached the front door of the residence and knocked. Morning answered the door. Agent Dominguez informed her that he and the other agents were conducting a narcotics investigation and suspected that there may be narcotics on the premises. He also asked Morning for permission to search the residence, but Morning replied that she would rather have the agents obtain a search warrant. Dominguez then asked Morning if there was anybody else living in the house, and she told them that Pancho lived there. She then left to summon Leon-Yanez, and after a short time he came to the door. Dominguez told him that he was conducting a narcotics investigation, and Leon-Yanez, before he was even asked for his name, said "It's in the back there, but it's not mine." Dominguez then asked him for permission to search the premises, and he gave oral and written consent. When the agents entered, Morning said nothing further about their presence. The agents found approximately 226 pounds of marijuana in the house's one bedroom, the refrigerator, and the house's one bathroom. It turned out that Leon-Yanez had provided for its storage there.

Both appellants moved to suppress evidence of the search because there was no warrant and no valid consent, but their motions were denied. ¹ They then pled guilty and reserved the suppression issues. Sentencing followed and the district court determined that Morning's criminal history category was II. ² Morning complained that it should be lower because her collateral attack on a prior conviction should have been sustained. The district court disagreed. Both Leon-Yanez and Morning now appeal.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction pursuant to 28 U.S.C.A. Sec. 1291 and 18 U.S.C.A. Sec. 3742(a).

"In general, we review determinations of motions to suppress de novo." United States v. Becker, 23 F.3d 1537, 1539 (9th Cir.1994). However, we review the trial court's factual findings for clear error. Id. The voluntariness of a consent to search is a factual question which is determined "by considering the totality of the surrounding circumstances." United States v. Kelley, 953 F.2d 562, 566 (9th Cir.1992). We review the district court's determination of that question for clear error. Id.

We review applications of the Sentencing Guidelines de novo. See United States v. Buenrostro-Torres, 24 F.3d 1173, 1174 (9th Cir.1994) (per curiam).

DISCUSSION

The principal issues in this case revolve around the search which uncovered the large cache of marijuana. Leon-Yanez consented to that search, but it is now claimed that his consent was not voluntarily given. Were that true, suppression of the evidence would result, and both he and Morning would benefit. Morning adds that even if Leon-Yanez did consent, she expressly did not. That, she argues, means that the evidence must be suppressed as to her in any event. Because the threshold issue is the validity of Leon-Yanez's consent, we address that first and take up Morning's separate issue second.

A. Voluntary Consent by Leon-Yanez.

When Leon-Yanez was first addressed by the officers, he immediately blurted out the fact that there was marijuana stored in the house. When the officers then asked if they could look, he said that they could. He also signed a written consent form, in which he indicated that he freely consented and had not been threatened or forced in any way. Now, however, he claims that his consent to the search was not effective because it was not voluntarily given.

That is a question of fact, and its resolution depends on the totality of the circumstances. See United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir.1988). As we said in Castillo:

We have previously indicated that several factors must be considered in determining whether consent is voluntary. None of them are dispositive. These factors include: (1) whether defendant was in custody; (2) whether the arresting officers have their guns drawn; (3) whether Miranda warnings have been given; (4) whether the defendant was told he has a right not to consent; and (5) whether defendant was told a search warrant could be obtained. The fact that some of these factors are not established does not automatically mean that consent was not voluntary.

Id. (citations omitted); see also United States v. Carbajal, 956 F.2d 924, 930 n. 3 (9th Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 272, 126 L.Ed.2d 223 (1993); Kelley, 953 F.2d at 566.

In other words, although we have established these factors to aid in the decisionmaking process, the full richness of any encounter must be considered by the district court. Here it is apparent that the district court did not clearly err in determining that the consent was valid.

The officers did not unholster their guns during the encounter with Leon-Yanez and did not threaten him in any way. In fact, they had merely asked Morning if someone else was there, whereupon she sent Leon-Yanez out to the door. He was not arrested, nor was she. He said that he resided there and that he paid all of the bills, but before the police could ask for his name he also said that marijuana was in the house. He added that it was not his.

Not surprisingly, the conversation then quickly flowed to a request by the officers to look in the house. When Leon-Yanez said that they could, they also obtained his signature on a written consent form which was in both Spanish and English. They then entered. They had not told Leon-Yanez that he could refuse consent nor had they given him Miranda ³ warnings or said that they could get a search warrant. But none of those is a sine qua non. They are simply factors.

While Leon-Yanez now says that he did not understand that he could refuse and that he had a questionable immigration status, which concerned him, the evidence showed that he had actually decided to cooperate even before any request was made. At least, he had decided to tell the officers that marijuana was in the house.

Leon-Yanez also complains that he was not told that Morning had said she would prefer it if the officers obtained a warrant, but he does not indicate how that was coercive as to him. If anything, it shows that she did not feel coerced at all, and there is nothing to indicate that the officers became more aggressive when they spoke with him or that they told him that she had consented. Of course, in considering his claims we are concerned with his Fourth Amendment rights, not with those of Morning. See United States v. Padilla, --- U.S. ----, 113 S.Ct. 1936, 1939, 123 L.Ed.2d 635 (1993) (per curiam).

Every encounter has its own facts and its own dynamics. So does every consent. The district court assessed the evidence in this case and determined that Leon-Yanez's consent was, all things considered, voluntarily given. That determination was not clearly erroneous.

B. Morning's Refusal to Consent.

Morning asserts that because she told the agents that she preferred to have a warrant obtained, the search without a warrant violated her Fourth Amendment rights.

The evidence clearly showed that Leon-Yanez had an at least equal interest in the use and possession of the house. Although Morning had signed the rental application, she did so on behalf of herself and her "spouse," Leon-Yanez. Moreover, it was undisputed that he paid the bills, resided there full time, and had as much control over the house as she did. That is underscored by the fact that after she expressed a preference for a warrant, she went and talked to Leon-Yanez, sent him to the front door, and made no protest after he gave his consent to the search. Once he went to the front door, Morning remained in the house while he stood in the doorway and spoke with the agents. The house itself was very small--under 1,000 square feet--so she could not have been very far away. That is some indication that she recognized Leon-Yanez as an equal occupant of the property, or, perhaps, as a person who had an even superior interest that could trump hers. In fact, the district court found that he actually did have "superior authority" over the residence.

It is against that backdrop of the parties' relationship to the house and each...