U.S. v. Waupekenay, No. 91-2239

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before BRORBY and EBEL, Circuit Judges, and VAN SICKLE; EBEL
• Citation: 973 F.2d 1533
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Steven Curtis WAUPEKENAY, Defendant-Appellee.
• Decision Date: 31 August 1992
• Docket Number: No. 91-2239

Page 1533

973 F.2d 1533 UNITED STATES of America, Plaintiff-Appellant,
v.
Steven Curtis WAUPEKENAY, Defendant-Appellee. No. 91-2239. United States Court of Appeals,
Tenth Circuit. Aug. 31, 1992.

Page 1534

Richard A. Friedman, Dept. of Justice, Washington, D.C. (Don J. Svet, U.S. Atty., and Mary L. Higgins, Asst. U.S. Atty., District of N.M., with him on the briefs), for plaintiff-appellant.

Angela Arellanes, Albuquerque, N.M., for defendant-appellee.

Before BRORBY and EBEL, Circuit Judges, and VAN SICKLE, Senior District Judge. ^*

EBEL, Circuit Judge.

In this case, we review the district court's decision to grant the defendant-appellee's motion to suppress evidence obtained after the defendant-appellee assaulted police officers who had entered his house trailer to intervene in a domestic dispute. We must address two issues. First, did the defendant-appellee's wife give the officers consent to enter the trailer? Second, if the officers did not receive consent, should the evidence of the defendant-appellee's assault upon the officers inside the trailer be suppressed as the fruit of an illegal police entry?

We hold that the police officers did not have consent to enter the trailer. However, the evidence of the assault upon the officers should not have been suppressed because the defendant-appellee did not have a reasonable expectation of privacy at the time he initiated the assault. Accordingly, we reverse the district court's order granting the defendant-appellee's motion to suppress and remand for trial on the merits.

I. BACKGROUND

In the early morning hours of February 9, 1991, Nanette Waupekenay drove to the Jicarella Apache Police Station in Dulce, New Mexico, on the Jicarilla Apache Indian reservation, seeking police intervention in a domestic dispute with her common-law husband, Steven Curtis Waupekaney, the defendant-appellee. Specifically, she asked the tribal officers to assist her in removing her husband from the trailer in which they resided.

Four officers went to the trailer in response to her request: Sergeant Eli Natsena, Officer Duane Lynch, Officer Wilbur Montoya, and Officer Thomas Salazar. Mrs. Waupekenay explained the basis of the dispute and reiterated that she wanted her husband to leave the trailer. The parties dispute the course of the events that followed.

The officers' version is that Mrs. Waupekenay gave them express permission to enter the trailer. In addition, she informed them that Mr. Waupekenay was not drunk and had no guns or other weapons inside the trailer. In response to her requests, Officer Lynch knocked on the screen door and identified himself as a police officer. Mr. Waupekenay asked the police to leave, opened the front door approximately five inches, unlocked the screen door, and retreated to the back of the trailer. Mrs. Waupekenay again gave them permission to enter the trailer, and Officer Lynch and Sergeant Natsena did so.

Mrs. Waupekenay presents a different version of the events. She asserts that the officers never asked for, and she never gave, permission to enter the trailer and

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that she never spoke with them about guns or other weapons. Furthermore, she contends, Officer Lynch opened the trailer door only after struggling against her husband's resistance.

Despite the difference of accounts, the outcome of the confrontation is not in dispute. The officers entered the trailer and saw Mr. Waupekenay standing near the back of the trailer, half-exposed through an open doorway. When Officer Lynch asked him to step fully into view, Mr. Waupekenay revealed that he was holding a .22 caliber semi-automatic rifle and he aimed it at the officers. The officers drew their weapons in response. During the course of the standoff that ensued, Mrs. Waupekenay asked the police to leave and to allow the couple to work it out themselves. The police remained and eventually persuaded Mr. Waupekenay to place the rifle on the floor. He was taken into custody, and the rifle was seized.

On May 9, 1991, Mr. Waupekenay was indicted in the United States District Court for the District of New Mexico for assaulting two tribal officers with a dangerous weapon in violation of 18 U.S.C. § 1153 and 18 U.S.C. § 113(c).

On July 10, 1991, Mr. Waupekenay moved to suppress all evidence, statements, and items obtained as a result of the officers' entry into his home. Stating its findings and conclusions orally, the district court granted this motion on the ground that the statements and evidence were obtained in violation of Mr. Waupekenay's Fourth Amendment rights. The court found Mrs. Waupekenay to be more believable than the officers and accordingly adopted her version of the events as the truth. Thus, the court found (1) that Mrs. Waupekenay did not voluntarily consent to police entry of the trailer and (2) that no exigent reasons existed so as to permit the officers to enter without her consent. R., Vol. II, at 36-39.

The United States appeals the district court's decision. We have jurisdiction pursuant to 18 U.S.C. § 3731.

II. DISCUSSION

A. Standard of Review

The proponent of a motion to suppress bears the burden of establishing that the challenged search or seizure violated his or her Fourth Amendment rights. United States v. Rios, 611 F.2d 1335, 1344 (10th Cir.1979). The district court determined that Mr. Waupekenay satisfied this burden.

In evaluating the district court's decision, we focus upon Mr. Waupekenay's expectation of privacy at the time of the incident in dispute. We review the district court's findings of fact under the clearly erroneous standard, as " 'the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters' most appropriate for the district court." United States v. Mendoza-Salgado, 964 F.2d 993, 1011 (10th Cir.1992) (citation omitted); accord Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). However, we review de novo the constitutionality of the police officers' actions under the Fourth Amendment, as well as other questions of law. United States v. Evans, 937 F.2d 1534, 1536-37 (10th Cir.1991).

B. Lack of Consent

As discussed supra, the parties dispute whether Mrs. Waupekenay gave the police officers permission to enter the house trailer in order to respond to her request for assistance. The district court ruled that the officers did not have Mrs. Waupekenay's voluntary consent to enter the trailer. We affirm this determination.

Whether Mrs. Waupekenay gave the police officers explicit or implicit permission to enter the house trailer is judged by an "objective reasonableness" standard: "what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, --- U.S. ----, ---- - ----, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991); see also Illinois...