F I L E D
United States Court of Appeals
Tenth Circuit
August 27, 2007
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 06-2109
v. (D.C. No. CR 04-2250 M CA)
(D .N.M .)
YA UD IS VENZAN T-DIAZ,
Defendant-Appellant.
OR DER AND JUDGM ENT *
Before KELLY, EBEL, and HO LM ES, Circuit Judges.
Yaudis Venzant-Diaz pleaded guilty to one count of possession of
cocaine base with intent to distribute and one count of using or carrying a firearm
in relation to a drug crime, pursuant to a conditional plea agreement that
preserved his right to appeal an adverse ruling on a suppression motion. W e find
no clear error in the district court’s factual finding that M r. Venzant-Diaz
consented to the challenged search, and we affirm.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I. BAC K GR OU N D
On October 22, 2004, a confidential informant tipped off Officer M ichael
W erner of the Albuquerque Police Department (“APD ”) that M r. Venzant-Diaz
was dealing crack cocaine from his home and that he had hidden both narcotics
and a stolen firearm there. Based on this information, Officer W erner,
accompanied by fellow Officers Tank Guenther and Elder Guevarra, went to the
home of M r. Venzant-Diaz to conduct a warrantless “knock-and-talk” in an
attempt to obtain M r. Venzant-Diaz’s consent to a search of the house.
According to the officers, they told M r. Venzant-Diaz of their suspicions
and asked his permission to enter and search. He responded by inviting the
officers to “come on in and look.” A sked more specifically if the officers could
search for the stolen firearm in the kitchen stove, where the confidential
informant said it could be found, M r. Venzant-Diaz again consented explicitly:
“Go ahead. Look in the stove. You’re not going to find anything.”
M r. Venzant-Diaz disputes this account of the search, and he contends that
he never gave the officers his consent to enter his home or search the premises.
According to M r. Venzant-Diaz, the officers entered as soon as he opened the
door, neither asking for nor receiving his permission to enter. Further, M r.
Venzant-Diaz testified he “never at any time told them that they could look
around,” and that the officers never asked him whether they could search his
-2-
home. M r. Venzant-Diaz claims he did not actively oppose the officers’ entry,
however, because he feared they would physically assault him. 2
The parties do not dispute that the search of M r. Venzant-Diaz’s home
yielded a Glock pistol, hidden in a disguised compartment on the oven door. A
check of the gun’s serial number in the NCIC database showed that it had
previously been reported stolen. M r. Venzant-Diaz was informed of his M iranda
rights, handcuffed, and transported to the police station. Under questioning by
Officer Guevarra at the station, M r. Venzant-Diaz admitted to selling both
methamphetamine and crack cocaine and to purchasing the Glock from a customer
for self-protection. Officer W erner, meanwhile, obtained a search warrant for M r.
Venzant-Diaz’s home, later executed it with M r. Venzant-Diaz present, and
2
M r. Venzant-Diaz’s claimed fear apparently stemmed from an incident on
October 16, 2004, in which M r. Venzant-Diaz’s car was stopped and he was
arrested on suspicion of possessing methamphetamines and for resisting arrest.
Officer W erner was the supervising officer at the scene, and he testified that
“there had been some use of force” against M r. Venzant-Diaz by the arresting
officer. According to M r. Venzant-Diaz, the officers who stopped him, including
Officer W erner, handcuffed him and then beat and threatened him. Officer
W erner testified that he did not believe any beating occurred and that he believed
M r. Venzant-Diaz’s injuries were sustained pursuant to officers’ use of force
necessary to take M r. Venzant-Diaz into custody. It is undisputed that M r.
Venzant-Diaz w as transported from the scene via ambulance to a hospital, where
he was treated for a laceration on his face, held overnight, and then released.
In the district court, M r. Venzant-Diaz sought dismissal of the charges
against him based upon these allegations, which he contended amounted to
outrageous governmental misconduct. The district court denied the motion, and
M r. Venzant-Diaz does not appeal this decision. Accordingly, the only issue
before this court is whether the district court erred in determining M r. Venzant-
Diaz consented to the search of his home, which does not require us to determine
the truth of M r. Venzant-Diaz’s allegation that he was beaten by APD officers.
-3-
discovered an amount of crack cocaine, packaged for retail distribution, in the
hollowed-out legs of M r. Venzant-Diaz’s kitchen table. M r. Venzant-Diaz was
subsequently indicted on one count of unlawfully and knowingly possessing a
firearm subsequent to a felony conviction, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2) (“Count I”); one count of possession with intent to distribute more
than 5 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a) and (b)(1)(B)
(“Count II”); and one count of knowingly carrying a firearm in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c) (“Count III”).
M r. Venzant-Diaz moved to suppress both the physical evidence against
him and the statements he made in interrogation, arguing they were the result of
an unconsented, warrantless search in violation of the Fourth Amendment. The
district court held a hearing on the suppression motion at which M r. Venzant-Diaz
and all three officers testified. At the conclusion of the hearing, the district court
found the testimony of the officers credible, but it found M r. Venzant-Diaz’s
testimony credible only “when he told us his name and when he told us he paid
$60 for the Glock. Other than that, I totally disregard his testimony as being
basically incred[ible].” The district court noted that M r. Venzant-Diaz’s
allegation of the earlier beating “causes me trouble, but not in the sense of the
consent in this case.” The court found that the officers did not need a search
warrant, as M r. Venzant-Diaz “invited them in.” Accordingly, the district court
denied the motion to suppress.
-4-
Subsequently, M r. Venzant-Diaz pleaded guilty to Counts II and III of the
indictment against him, pursuant to a conditional plea agreement which preserved
his right to appeal the district court’s denial of his motion to suppress and his
motion to dismiss the indictment. He filed a timely notice of appeal, and we have
jurisdiction under 28 U.S.C. § 1291.
II. D ISC USSIO N
“W hen reviewing a district court’s denial of a motion to suppress, we view
the evidence in the light most favorable to the government, accepting the district
court’s factual findings unless clearly erroneous.” United States v. Villagrana-
Flores, 467 F.3d 1269, 1273 (10th Cir. 2006) (quoting United States v. Gregoire,
425 F.3d 872, 875 (10th Cir. 2005)). The scope of consent, and whether it was
exceeded under the circumstances of the challenged search, are questions of fact.
United States v. Rosborough, 366 F.3d 1145, 1150 (10th Cir. 2004). And “[t]he
validity of consent to search requires a factual determination based upon the
totality of the circumstances of whether the consent was ‘the product of an
essentially free and unconstrained choice by [the] maker’ or whether it was ‘the
product of duress or coercion, express or implied.’” United States v. Sawyer, 441
F.3d 890, 894 (10th Cir. 2006) (quoting Schneckloth v. Bustamonte, 412 U.S.
218, 225, 227 (1973); internal citations omitted). Accordingly, we review a
district court’s determinations whether consent was given, what its scope was, and
whether it was given voluntarily, for clear error. See United States v. Zubia-
-5-
M elendez, 263 F.3d 1155, 1162 (10th Cir. 2001). “The witnesses[’] credibility
and the weight to be given evidence, together with all inferences and conclusions
drawn from the evidence, are matters within the province of the district judge.”
United States v. Stephenson, 452 F.3d 1173, 1176 (10th Cir. 2006).
Before this court, M r. Venzant-Diaz raises three challenges to the district
court’s denial of his motion to suppress. First, he argues that the district court
improperly equated M r. Venzant-Diaz’s consent to the officers’ entry into his
home with a consent to search. Second, he contends the district court’s findings
on the credibility of w itness testimony at the suppression hearing were
inconsistent with its order to investigate further M r. Venzant-Diaz’s allegations
he had been beaten at his October 16, 2004, arrest. Third, he argues the
Government failed to carry its burden of demonstrating M r. Venzant-Diaz’s
consent to entry and search was voluntary, even accepting the officers’ testimony.
For none of the three claims, however, does M r. Venzant-Diaz provide evidence
which leaves us “with the definite and firm conviction that a mistake has been
comm itted.” United States v. W ilfong, 475 F.3d 1214, 1218 (10th Cir. 2007)
(quotation omitted).
M r. Venzant-Diaz’s first contention, that the district court found only
consent to enter his home, not consent to search, is directly belied by the w itness
testimony and the credibility determination made by Judge Conway at the
suppression hearing. As Officer W erner testified, he specifically asked M r.
-6-
Venzant-Diaz for permission to search the kitchen stove for a gun; according to
the officer’s testimony, M r. V enzant-Diaz replied, “Go ahead. Look in the stove.
You’re not going to find anything.” The district court stated that it believed
Officer W erner’s testimony about the circumstances of the search and disbelieved
M r. Venzant-Diaz’s testimony to the contrary. M r. Venzant-Diaz provides no
evidence other than his testimony to suggest the district court erred in its
determination, and we will not set aside a factual finding of consent to search
based on M r. Venzant-Diaz’s bare assertion that the district court incorrectly
found the officers credible.
M r. Venzant-Diaz next argues that the district court’s factual findings are
“internally inconsistent” and that its “admonishment to counsel to further
investigate the alleged beating of M r. Venzant-Diaz on October 16, 2004, [flew ]
in the face of the witness credibility findings it had just announced.” According
to this theory, because the district court apparently found some potential for truth
in M r. Venzant-Diaz’s allegation that he had been beaten, it “erred by failing to
analyze the voluntariness of M r. Venzant-Diaz’s consent in light of these
circumstances.” W e disagree. There is no inherent inconsistency between the
district court’s factual finding that consent was voluntarily given and the court’s
apparent concern with the actual facts underlying M r. Venzant-Diaz’s allegation
of a beating at the hands of APD officers. Indeed, it would have been entirely
consistent for the court to find that M r. Venzant-Diaz had been beaten on October
-7-
16, 2004, and yet he voluntarily offered his consent to the officers’ search a week
later. It is the province of the district court to w eigh the credibility of w itnesses,
and on the evidence presented on appeal we do not conclude that its weighing was
clearly erroneous.
Finally, M r. Venzant-Diaz argues that, even accepting the officers’
testimony, the totality of the circumstances of the search indicates his consent
was involuntary, contrary to the district court’s determination. He points to the
presence in his home of three uniformed and armed police officers, the absence of
other civilians in the home, the prior use of force in response to his resisting
arrest on October 16, 2004, and his physically vulnerable condition while he
recovered from the injuries he sustained in that incident, as factors w eighing in
favor of a finding that his consent was coerced. W e find nothing, however, that
would permit us to label the district court’s conclusion of voluntariness to be
clear error. There was no testimony that the officers at any point drew their
weapons, made threats, or employed any force whatsoever against M r. Venzant-
Diaz. See U nited States v. Cruz-M endez, 467 F.3d 1260, 1265-66 (10th Cir.
2006) (finding the courteous interaction of several armed officers with an
inhabitant did not render consent to search coerced); United States v. Ledesma,
447 F.3d 1307, 1314 (10th Cir. 2006) (collecting factors bearing on the
determination of voluntariness, none of which is dispositive). And whatever
conclusion we may have drawn from the evidence presented at the suppression
-8-
hearing ab initio, there simply is no basis for overturning the factual
determination of voluntariness under these circumstances.
III. C ON CLU SIO N
The district court’s factual determinations — that M r. Venzant-Diaz
consented to the officers’ entry into his home and to their search of his kitchen
stove, and that his consent was voluntarily given and not the product of duress or
coercion — are not clearly erroneous. Accordingly, we AFFIRM the district
court’s denial of M r. Venzant-Diaz’s motion to suppress his statements and the
physical evidence procured as a result of the consented search and through the
subsequently obtained warrant.
ENTERED FOR THE COURT
David M . Ebel
Circuit Judge
-9-