U.S. v. Rodriquez, 04-30397.

• Decision Date: 05 October 2006
• Docket Number: No. 04-30494.,No. 04-30397.,04-30397.,04-30494.
• Citation: 464 F.3d 1072
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gino Gonzaga Rodriquez, Defendant-Appellant. United States of America, Plaintiff-Appellant, v. Gino Gonzaga Rodriquez, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

464 F.3d 1072

UNITED STATES of America, Plaintiff-Appellee, v. Gino Gonzaga Rodriquez, Defendant-Appellant.

United States of America, Plaintiff-Appellant, v. Gino Gonzaga Rodriquez, Defendant-Appellee.

No. 04-30397.

No. 04-30494.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 23, 2006.

Filed October 5, 2006.

COPYRIGHT MATERIAL OMITTED

Lana C. Glenn, Spokane, WA, for appellant/cross-appellee Gino Gonzaga Rodriquez.

Joseph H. Harrington, Assistant United States Attorney, Spokane, WA, for appellee/cross-appellant United States.

Appeal from the United States District Court for the Eastern District of Washington; Robert H. Whaley, District Judge, Presiding. D.C. Nos. CR-03-00142-RHW, CR-03-00142-RHW.

Before: RAWLINSON and CLIFTON, Circuit Judges, and MARSHALL,^* Senior District Judge.

RAWLINSON, Circuit Judge:

A jury convicted Gino Rodriquez of being a felon in possession of a firearm. On appeal, he argues that the district court erred in denying his motion to suppress the firearm because consent to search was not voluntary. He also contends that there was insufficient evidence to support his conviction. On cross-appeal, the government maintains that the district court erroneously concluded that Rodriquez's prior drug convictions do not qualify as predicate offenses under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). We conclude that the search was conducted pursuant to a valid consent; there was sufficient evidence to support the jury's finding that Rodriquez possessed the firearm; and the district court — relying on United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir.2002) (en banc) — correctly held that Rodriquez's prior drug convictions do not qualify as predicate offenses under the ACCA. We therefore affirm.

I FACTUAL AND PROCEDURAL BACKGROUND

Gino Rodriquez has several felony convictions in Washington State, including three convictions for delivery of a controlled substance. Rodriquez served his time and, upon his release, was placed on a term of community supervision, from which he absconded. He was subsequently placed on "escape status," and four warrants were issued for his arrest. His whereabouts were unknown until April 2003, when law enforcement officers located and arrested him.

Rodriquez was staying with Tammi Putnam in apartment 36 of an apartment complex in Spokane, Washington. Rodriquez had a key to the apartment, had access to the entire apartment, had his belongings there, and received mail there. Rodriquez and Tammi resided with Tammi's daughter and teenaged son, Zachary.

In March 2003, Zachary's friend, William Packer, spoke to Rodriquez about "getting rid" of a gun. Rodriquez told Packer that he could "get rid" of it. Packer brought the gun to the apartment for Rodriquez. Rodriquez looked at the gun, grabbed it with his shirt, pulled the gun out of the sleeve and replaced it. Rodriquez kept the gun, telling Packer that he would try to sell it. Zachary later observed Rodriquez in the apartment with the gun on a table. When Zachary asked about the gun, Rodriquez stated that he was "getting rid of it."

Meanwhile, a joint fugitive task force was looking for Rodriquez and conducting surveillance of Deanna Torgeson, whom the task force had learned was visiting Rodriquez on a regular basis. In April 2003, task force officers followed Torgeson to the apartment complex where Rodriquez resided. They observed Torgeson talking to Rodriquez right outside the rear, open door of apartment 36, while Rodriquez was eating a bowl of cereal.

Spokane County Sheriff Deputy Kris Thompson arrested Rodriquez pursuant to four outstanding warrants for his arrest. Deputy Thompson found a bag of heroin and approximately $900 dollars in cash when Rodriquez was searched. After Deputy Thompson administered the Miranda warnings, which Rodriquez waived, Rodriquez denied living in apartment 36. Rodriquez also made other statements that, according to Deputy Thompson, "didn't quite match up," including conflicting stories about how he arrived at the apartment.

At this point, Tammi arrived on the scene. When Deputy Thompson asked her whether she lived in apartment 36 and whether she knew Rodriquez or Torgeson, she responded that she did not live in that apartment, she did not know Rodriquez or Torgeson, and she was at the complex to pick up her child. She then entered apartment 35.

After conversing with the resident of apartment 35, Deputy Thompson discovered that Tammi had not been forthright. He confronted Tammi with her earlier statements, which she confessed were false. He advised her that "it was a criminal offense to make a false or misleading statement to a public servant." During the course of their conversation, she seemed "nervous" and "upset." Deputy Thompson explained that Rodriquez had been arrested and told Tammi that a warrant could be obtained to search the apartment, in which case the apartment would be secured to ensure the integrity of its contents. Alternatively, she could consent to a search. Deputy. Thompson informed Tammi that she had the right to refuse to consent and read to her a search consent card, which she reviewed, signed, and dated. Upon receiving her consent, the officers searched the apartment, where they discovered the gun underneath a couch.

Rodriquez was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He moved to suppress evidence seized during the search, asserting that Tammi's consent was not voluntary. The district court denied the motion, and Rodriquez was convicted by a jury.

Rodriquez also objected to the government's request that the judge enhance his sentence under the ACCA. He contended that his two prior burglary convictions and three prior drug convictions did not qualify as predicate offenses under the ACCA. The district court concluded that Rodriquez's prior burglary convictions qualified as two predicate offenses; however, relying on Corona-Sanchez, the district court held that the ACCA enhancement did not apply because Rodriquez's prior drug convictions did not qualify as predicate offenses. This timely appeal and cross-appeal followed.

II DISCUSSION

A. The Motion to Suppress Was Properly Denied Because Tammi Putnam Voluntarily Consented to the Search of Apartment 36

"We review de novo the district court's denial of a suppression motion. The district court's underlying factual finding that a person voluntarily consented to a search is reviewed for clear error." United States v. Pang, 362 F.3d 1187, 1191 (9th Cir.2004) (citations omitted).

"It is well settled that a search conducted pursuant to a valid consent is constitutionally permissible." United States v. Soriano, 361 F.3d 494, 501 (9th Cir.2004) (citation and internal quotation marks omitted). "Whether consent to search was voluntarily given is to be determined from the totality of all the circumstances. It is the government's burden to prove that the consent was freely and voluntarily given. On appeal, evidence regarding the question of consent must be viewed in the light most favorable to the fact-finder's decision." Id. (citations and internal quotation marks omitted).

"Our cases have identified five factors to be considered in determining the voluntariness of consent to a search. They are: (1) whether defendant was in custody; (2) whether the arresting officers had their guns drawn; (3) whether Miranda warnings were given; (4) whether the defendant was notified that she had a right not to consent; and (5) whether the defendant had been told a search warrant could be obtained." Id. at 502 (citations and internal quotation marks omitted). "No one factor is determinative in the equation. It is not necessary to check off all five factors, but many of this court's decisions upholding consent as voluntary are supported by at least several of the factors. Nevertheless, these factors are only guideposts, not a mechanized formula to resolve the voluntariness inquiry." Id. (citations and internal quotation marks omitted).

Based on the totality of the circumstances and after considering the applicable factors, we conclude that Tammi voluntarily consented to the search. As to the first factor, the district court concluded, and Rodriquez conceded in his brief, that Tammi was not in custody when she consented to the search. Second, the court determined that there was no "indication that firearms were exhibited or drawn," a conclusion with which Rodriquez also agreed. Third, because Tammi was not in custody, "Miranda warnings were inapposite ..." Id. at 504 (citation omitted). Fourth, the court found, and Rodriquez acknowledged, that Tammi knew she had the right to refuse consent. "Knowledge of the right to refuse consent is highly relevant in determining whether a consent is valid." Id. (alteration and citations omitted). Moreover, where, as here, "the officers themselves informed[Tammi] that she was free to withhold her consent," "the probability that their conduct could reasonably have appeared to her to be coercive" is "substantially lessened." United States v. Mendenhall, 446 U.S. 544, 559, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (emphasis added).

Fifth, Deputy Thompson told Tammi that, if she chose not to consent, he could apply for a search warrant and secure her apartment. A "statement indicating that a search warrant would likely be sought and the [apartment] secured could not have, by itself, rendered [Tammi's] consent involuntary as a matter of law." United States v. Whitworth, 856 F.2d 1268, 1279 (9th Cir.1988) (citations omitted). Rather, application of this factor "hinges on whether [Tammi was] informed about the possibility of a search warrant in a threatening manner." Soriano, 361 F.3d at 504 (citations omitted). "Even assuming, however, that [Deputy Thompson's statements] were made in a threatening manner so as to imply the futility of withholding consent, when probable cause to justify a warrant exists,...