U.S. v. Spence, 04-6118.

• Decision Date: 15 February 2005
• Docket Number: No. 04-6118.,04-6118.
• Citation: 397 F.3d 1280
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bruce R. SPENCE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

397 F.3d 1280

UNITED STATES of America, Plaintiff-Appellee, v. Bruce R. SPENCE, Defendant-Appellant.

No. 04-6118.

United States Court of Appeals, Tenth Circuit.

February 15, 2005.

Submitted on the briefs: Robert G. McCampbell, United States Attorney, James F. Robinson, Assistant United States Attorney, Oklahoma City, OK, for Plaintiff-Appellee.

Thomas D. McCormick, Oklahoma City, OK, for Defendant-Appellant.

Before, EBEL, MURPHY, and McCONNELL, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Bruce R. Spence was charged in the Western District of Oklahoma with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). In the district court, Spence moved to suppress evidence seized in a search of his home. The court denied the motion after an evidentiary hearing. Spence then entered a conditional guilty plea reserving his right to appeal the denial of his motion. This court has jurisdiction pursuant to 28 U.S.C. § 1291. Because the encounter between the government agents and Spence during the search of his home was consensual, this court affirms the district court's denial of Spence's motion to suppress.¹

II. BACKGROUND

The evidence presented at the hearing on the motion to suppress showed that Russian law enforcement officials notified the United States Customs Service that Spence was one of several Americans who had paid to access Russian-based web sites featuring child pornography. Responding to this information, three agents dressed in plain clothes went to Spence's home in Oklahoma City to conduct a "knock and talk." Special Agents Paul Masteller and Eric Munson knocked on Spence's front door sometime between ten and eleven o'clock in the morning, while Special Agent Bill Davis waited in a vehicle outside. When Spence answered the door, Masteller and Munson identified themselves as special agents of the United States Customs Service and asked if they could come inside to talk. Spence agreed.

The agents informed Spence that his name had been linked to Russian web sites featuring child pornography. They then asked if they could search his computer. Spence asked at least twice whether he could decline the search request, and Munson responded "[y]ou have a choice ... you can say no." Spence orally agreed and signed a written consent form. Davis then entered the home to conduct the computer search. While Davis was working on the computer, Masteller and Munson asked Spence if they could search his residence. Spence again orally agreed and signed a second written consent form.

The agents seized two CDs containing images of children engaged in sexually explicit activity. The entire encounter lasted approximately two hours. The next day, Masteller obtained a search warrant and seized Spence's computer and other evidence.

III. STANDARD OF REVIEW

In reviewing the denial of a motion to suppress, this court views the evidence in the light most favorable to the government and accepts the district court's factual findings unless clearly erroneous. United States v. Sanchez, 89 F.3d 715, 717 (10th Cir.1996). This court "conduct[s] a de novo review of all the relevant circumstances to determine whether an interaction between an individual and a law enforcement officer is a consensual encounter that does not implicate the Fourth Amendment." United States v. Abdenbi, 361 F.3d 1282, 1291 (10th Cir.2004).

IV. DISCUSSION

The district court concluded that the agents' actions did not constitute an unconstitutional seizure, search, or custodial interrogation within the meaning of the Fourth and Fifth Amendments of the United States Constitution. On appeal, Spence challenges only the district court's conclusion that he was not unconstitutionally seized in violation of the Fourth Amendment.²

Spence contends that he was effectively under arrest "at the moment government agents entered his home" and that this arrest was not supported by either a warrant or probable cause. See United States v. Edwards, 242 F.3d 928, 933-34 (10th Cir.2001) ("To be lawful, a warrantless arrest must be supported by probable cause to arrest." (quotation omitted)). He therefore argues the district court should have suppressed any evidence obtained as a result of his unlawful detention. The government does not dispute that the agents had neither probable cause nor a warrant, but instead asserts that the encounter was consensual and that Spence was not under arrest at the time.

A consensual encounter is not a seizure for purposes of the Fourth Amendment. United States v. Gigley, 213 F.3d 509, 514 (10th Cir.2000). A seizure occurs only when an officer, by means of physical force or show of authority, in some way restrains the liberty of a citizen. United States v. Zapata, 997 F.2d 751, 756 (10th Cir.1993). The Supreme Court in Florida v. Bostick held that, "in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). This court has identified several factors relevant to this inquiry:

the location of the encounter, particularly whether the defendant is in an open public place where he is within the view of persons other than law enforcement officers; whether the officers touch or physically restrain the defendant; whether the officers are uniformed or in plain clothes; whether their weapons are displayed; the number, demeanor and tone of voice of the officers; whether and for how long the officers retain the defendant's personal effects such as tickets or identification; and whether or not they have specifically advised defendant at any time that he had the right to terminate the encounter or refuse consent.

Zapata, 997 F.2d at 756-57 (quotations, citations, and alteration omitted). The list of factors is non-exclusive and no one factor is dispositive. Abdenbi, 361 F.3d at 1291. The focus of the test is on "the coercive effect of police conduct, taken as a whole on a reasonable person." United States v. Little, 18 F.3d 1499, 1504 (10th Cir.1994) (en banc) (quotation omitted).

Spence's primary argument is that the encounter took place within his home and that "[t]he highest Fourth Amendment requirements therefore attach." Although Spence is correct that he had an increased expectation of privacy within his own home, this privacy expectation "has limited relevance to the question of whether a reasonable person would believe that he or she is unable to terminate the encounter." Little, 18 F.3d at 1505 (noting that an individual's increased expectation of privacy is primarily relevant to the question of the reasonableness of a police search, not to whether an encounter is consensual) (quotation omitted); see also United States v. Kim, 27 F.3d 947, 953 (3d Cir.1994) ("As far as consent is concerned, one may consent to an encounter in the privacy of his own home or in a public square."). This court does consider "interaction in a nonpublic place ... and the absence of other members of the public" as factors pointing toward a nonconsensual encounter. Sanchez, 89 F.3d at 718. The particular location of the encounter, however, is only one factor in the totality of the circumstances test. Little, 18 F.3d at 1503. There is no per se rule that a police encounter within an individual's home is a seizure within the meaning of the Fourth Amendment. See Abdenbi, 361 F.3d at 1288 ("[I]t is axiomatic that all requests to search a home or apartment are made in nonpublic places."); United States v. Jerez, 108 F.3d 684, 691-92 (7th Cir.1997) (recognizing that a "knock and talk" is ordinarily consensual unless coercive circumstances exist).

Even assuming Spence is correct that his presence in his own home weighs toward the conclusion that a seizure occurred,³ the district court was correct in this case to conclude the encounter was consensual. Spence admits that the agents asked for permission to enter his home and that he invited them inside. The agents' request for permission to enter is not the same thing as an explicit advisement that Spence had the right to terminate the encounter or refuse consent. See Zapata, 997 F.2d at 757 n. 4. An explicit advisement, however, "is not a requirement; it is merely a factor to be...