United States v. Romero

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 11, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v. No. 06-3092
(D.C. No. 05-CR-10080-01-W EB)
A N TH O NY R. R OM ER O, (D . Kan.)

Defendant-Appellant.

OR DER AND JUDGM ENT *

Before O 'B RIE N, HOL LOW A Y, and HO LM ES, Circuit Judges.

Defendant-Appellant Anthony R. Romero was convicted by a jury of three

counts of possession with intent to distribute a controlled substance in violation

of 21 U.S.C. § 841(a)(1) and sentenced to 160 months in prison. M r. Romero

appeals the district court’s denial of his motion to suppress evidence related to the

third count – specifically, the cocaine found during an April 10, 2005 police

search of a closet containing M r. Romero’s personal belongings. W e exercise

jurisdiction under 28 U.S.C. § 1291 and 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This order and judgment is not binding precedent, except under the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. BACKGROUND

At approximately 2:00 A.M . on April 10, 2005, W ichita, Kansas police

officers responded to a call from a neighbor reporting a domestic disturbance at

1802 South M adison. Sergeant Espinoza was one of at least five officers who

responded to the domestic disturbance call. Sgt. Espinoza was standing outside

the residence when he saw M r. Romero, a Hispanic male, running southbound on

an adjoining street. Sgt. Espinoza followed M r. Romero and found him hiding in

bushes. Drawing his gun, Sgt. Espinoza ordered M r. Romero out of the bushes,

patted him down, and instructed him to sit on the curb.

Although Sgt. Espinoza was able to converse with M r. Romero, he testified

at the suppression hearing that M r. Romero’s English was not very good and he

had experienced some difficulty communicating with him. Sgt. Espinoza called

for a Spanish-speaking officer to come to the residence due to the possibility that

the residents of the house did not speak English well and to make sure he was

“covering all the bases.” M oreover, Sgt. Espinoza testified that M r. Romero did

not smell of alcohol and his demeanor and actions did not indicate that he had

been drinking.

M r. Romero falsely identified himself as “Jose Gonzales.” H e told Sgt.

Espinoza that he and his brother had been involved in a bar fight and that he was

running from people w ho had injured his brother. M r. Romero claimed that his

brother w as at a nearby residence, but he could not remember w hich house. Sgt.

-2-
Espinoza called dispatch to verify this account and was informed that no

disturbance had been reported from any bar in the area. At this time, Officers

Boone and Shelton arrived on the scene and stayed with M r. Romero while Sgt.

Espinoza returned to the residence, where no one had yet gained access to the

house. After several other officers knocked on the door and windows of the

residence, M s. M ichelle M ontoya eventually answered and let the officers into the

residence. The officers quickly checked the residence and determined that M s.

M ontoya and three children were the only ones present in the residence.

M eanwhile two blocks away, Officer Boone asked M r. Romero for his

name and date of birth. M r. Romero responded that his name was “Jose

Gonzales” and that he w as born A pril 27, 1978. Officer Boone also asked M r.

Romero if he had ever been in jail and M r. Romero answered affirmatively.

Officer Boone ran the name “Jose Gonzales” through the SPIDER identification

database to check if there were any outstanding warrants. However, the database

did not locate any individual by that name. At the suppression hearing, Officer

Boone testified that he asked M r. Romero his name at least three times during this

encounter, and all three times, M r. Romero identified himself as “Jose Gonzales.”

M r. Romero also told Officer Boone the same account of how his brother was

injured and that his brother w as in a nearby house.

Sgt. Espinoza radioed Officer Boone requesting him to ask M r. Romero if

he was willing to come to the residence at the 1800 block of M adison. Officer

-3-
Boone drove M r. Romero approximately two blocks to the residence. M r.

Romero rode in the back of the patrol car, but Officer Boone did not handcuff

him. At the residence, the officers continued their attempts to ascertain M r.

Romero’s identity. After being informed that he could face charges for giving the

officers a false name, M r. Romero identified himself as “Victor Gonzales” and

stated that his date of birth was July 7, 1978.

At Sgt. Espinoza’s request, M s. M ontoya agreed to come out of the house

to see if she could identify M r. Romero. M s. M ontoya identified M r. Romero as

her boyfriend, Anthony Romero. Sgt. Espinoza was familiar with the name

“Anthony Romero” from his previous work in the Narcotics Division, and

consequently, suspected M r. Romero of dealing drugs. However, M r. Romero

steadfastly maintained that his name w as “Victor Gonzales,” and not “Anthony

Romero.” The officers ran the name “A nthony Romero” in the SPIDER database

and determined that there were two outstanding felony arrest warrants. Upon

learning of the outstanding warrants, the officers handcuffed M r. Romero in the

back of the patrol car. W hen M r. Romero still insisted he was not “Anthony

Romero,” the officers asked him whether he had any identification inside the

residence. M r. Romero claimed that he thought he might have something inside

the house proving that he was, in fact, “Victor Gonzales.”

Inside the residence, Sgt. Espinoza informed M s. M ontoya that he

suspected M r. Romero of having drugs in the house and asked for her permission

-4-
to search the house. M s. M ontoya agreed, but expressly stated that M r. Romero

kept his belongings in a closet and that the officers w ould have to get M r.

Romero’s permission to search that area. Sgt. Espinoza returned outside and told

M r. Romero that they needed to establish his identity and requested permission to

search his belongings in the closet for identification. According to the officers,

M r. Romero agreed to the search. Although Sgt. Espinoza wanted to search for

drugs in addition to the identification, he did not inform M r. Romero of his

suspicions regarding drug activity.

After obtaining M r. Romero’s oral consent, Sgt. Espinoza began searching

M r. Romero’s closet which was located in a hallw ay betw een tw o bedrooms.

Inside the closet, there were some clothes on hangers and some clothes folded on

shelves. Beginning with the top shelf, Sgt. Espinoza began lifting up the folded

shirts, looking underneath, and feeling any pockets to see if they contained

identification. In between the folded clothes, Sgt. Espinoza discovered a white,

non-transparent, “W al-M art type” shopping bag. Opening the shopping bag, Sgt.

Espinoza saw a clear plastic bag containing what appeared to be rocks of

crack-cocaine. After finding the bag, Sgt. Espinoza continued to search the closet

for identification. He found various items including a police citation issued to

“Anthony Romero” and pay stubs bearing the same name.

On M ay 3, 2005, M r. Romero was charged with one count of unlaw fully

possessing, with intent to distribute, fifty grams or more of a mixture containing

-5-
detectable amounts of cocaine base. 1 M r. Romero filed a motion to suppress the

cocaine, arguing that the police officers unlawfully searched the closet. On

September 22, 2005, the district court held an evidentiary hearing on M r.

Romero’s M otion to Suppress. Sgt. Espinoza, Officer Boone, and another officer

who responded to the domestic disturbance call, Officer Izzard, testified at the

hearing. M r. Romero and M s. M ontoya also testified.

Follow ing the district court’s denial of M r. Romero’s M otion to Suppress,

M r. Romero stood trial. On December 9, 2005, the jury found M r. Romero guilty

on all three counts. The district court sentenced M r. Romero to a term of 160

months in prison. M r. Romero timely filed this appeal.

II. D ISC USSIO N

In review ing a denial of a motion to suppress, we consider the evidence in

the light most favorable to the government (as the prevailing party) and accept the

district court’s factual findings unless clearly erroneous. United States v. Trotter,

483 F.3d 694, 698 (10th Cir. 2007). A finding is clearly erroneous w hen it is

“w ithout factual support in the record or we are left with the definite and firm

conviction that a mistake has been made.” United States v. Cernobyl, 255 F.3d

1
On September 21, 2005 in a superseding indictment, M r. Romero was
charged with three counts: (1) possession with intent to distribute 427 grams of
marijuana on December 12, 2003; (2) possession with intent to distribute 5,235
grams of marijuana on June 17, 2004; and (3) possession with intent to distribute
50 grams of cocaine base on April 10, 2005. This appeal is limited to reviewing
the district court’s denial of M r. Romero’s m otion to suppress evidence related to
Count 3.

-6-
1215, 1221 (10th Cir. 2001) (internal quotations omitted). The ultimate question

of the reasonableness of a search, however, is reviewed de novo. Trotter, 483

F.3d at 698.

The Fourth Amendment guarantees “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures . . . .” U .S. Const. amend. IV. Indeed, “physical entry into the home is

the chief evil against which the . . . Fourth Amendment is directed.” Welsh v.

Wisconsin, 466 U.S. 740, 748 (1984) (quoting United States v. U.S. Dist. Court

for E. Dist. of M ich., 407 U .S. 297, 313 (1972)). Accordingly, warrantless

searches and seizures conducted inside a home are presumptively unreasonable.

Payton v. New York, 445 U.S. 573, 586 (1980); Jones v. United States, 357 U.S.

493, 497-98 (1958). 2 Nevertheless, the Fourth A mendment allow s the w arrantless

search of a home when law enforcement officials obtain the voluntary consent of

an individual with actual or apparent authority. Georgia v. Randolph, 547 U.S.

103, 109 (2006) (citing Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) and

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)).

On appeal, M r. Romero claims that he did not consent to the search of the

2
As Justice Jackson cogently explained, the rationale underlying the
Fourth Amendment’s requirement of a warrant is that the determination as to
“[w ]hen the right of privacy must reasonably yield to the right of search is, as a
rule, to be decided by a [neutral and detached] judicial officer, not by a policeman
or Government enforcement agent.” Johnson v. United States, 333 U.S. 10, 13-14
(1948).

-7-
closet. Additionally, M r. Romero contends that any consent given was

involuntary because: (1) he was in police custody and handcuffed in the back of a

patrol car at the time of his alleged consent; (2) he had been drinking heavily

prior to the incident; and (3) he was deceived by the police officer w ho told him

they were looking for identification and failed to inform him of the real purpose

of the search, i.e., to look for drugs. Finally, M r. Romero argues that the officer

exceeded the scope of his alleged consent to search for identification by opening

an opaque shopping bag in which the cocaine was ultimately found. Each of

these arguments lacks merit.

A. The District Court Did N ot Clearly Err in Finding that M r.
Romero Gave the O fficers Consent to Search.

After holding an evidentiary hearing, the district court found that M r.

Romero “unequivocally” gave Sgt. Espinoza consent to search the closet. R. Vol.

I, Doc. 25 at 6-7. Notwithstanding M r. Romero’s claim at the suppression

hearing that he never gave the officers permission to search for identification, the

district court found that during his August 2, 2005 interrogation by police, M r.

Romero stated that he could not remember w hether he gave officers permission to

search. Accordingly, the district court found that Sgt. Espinoza’s testimony was

more credible than that of M r. Romero on the issue of consent.

The government bears the burden of proving, by a preponderance of the

evidence, that unequivocal and specific consent w as obtained. United States v.

-8-
Guerrero, 472 F.3d 784, 789 (10th Cir. 2007) (requiring “clear and positive

testimony that consent was unequivocal and specific”). “[T]he 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 resolution by the district court.” Id. (internal quotations omitted).

Accord United States v. Pena, 920 F.2d 1509, 1513 (10th Cir. 1990) (“Assessment

of the credibility of witnesses is the prerogative of the trial court, not an appellate

court, which neither sees nor hears the witnesses.”) Accordingly, determinations

of witness credibility will not be disturbed unless they are clearly erroneous.

“This holds particularly true where, as here, the credibility of witnesses is

important on the issue of voluntariness [of consent to search].” Guerrero, 472

F.3d at 789 (internal quotations omitted).

M r. Romero argues that the district court’s credibility determination

regarding Sgt. Espinoza is clearly erroneous because “[o]n two occasions, he was

untruthful to the Court.” Aplt. Opening Br. at 9. W e disagree.

In the first cited instance, which occurred during the suppression hearing,

Sgt. Espinoza testified on direct examination that he found the cocaine in a clear

bag between folded clothes in the closet. Contrary to M r. Romero’s assertions,

Sgt. Espinoza did not testify that the cocaine was in plain view as he sorted

through the folded clothing. Subsequently, in response to more detailed

questioning on cross-examination, Sgt. Espinoza clarified that the clear bag of

-9-
cocaine was inside a white, opaque “W al-M art- type” shopping bag. Such a

clarification hardly impugns Sgt. Espinoza’s credibility. W e discern nothing in

this example that would lead us to conclude that the district court’s credibility

determination is clearly erroneous.

In the second instance, M r. Romero asserts that Sgt. Espinoza contradicted

himself regarding the need for an interpreter. At the suppression hearing, Sgt.

Espinoza testified that he had some difficulty communicating with M r. Romero

because M r. Romero did not speak English well. Two months later at M r.

Romero’s trial, Sgt. Espinoza testified that he did not recall having difficulty

communicating with M r. Romero.

After review ing the transcript of the suppression hearing, however, Sgt.

Espinoza conceded that initially he did have some difficulty communicating with

M r. Romero. Yet, Sgt. Espinoza consistently maintained that he called the

Spanish-language interpreter to the residence in order to comm unicate with the

individuals inside the house, not M r. Romero. These purported “inconsistencies”

in Sgt. Espinoza’s testimony do not support a conclusion that the district court

clearly erred in finding his testimony to be credible.

In sum, insofar as it rests on Sgt. Espinoza’s alleged lack of veracity, M r.

Romero’s challenge to the district court’s credibility finding is wholly without

merit. See United States v. Cruz-M endez, 467 F.3d 1260, 1266 (10th Cir. 2006)

(seeing “no reason not to defer to the court’s credibility determination” w here

-10-
district court credits law enforcement officer’s testimony over that of defendant

(emphasis added)), cert. denied, 127 S. Ct. 1027 (2007). 3

Finally, M r. Romero argues, for the first time on appeal, that the failure to

provide a consent-to-search form supports giving him the benefit of the doubt that

he did not, in fact, consent, unless there is some justification for why the consent

was not documented. As support, M r. Romero argues that “[a]s a matter of

policy, law enforcement should be held to a higher burden of verification or

documentation when obtaining consent to search a home.” Aplt. Opening Br. at

15. M r. Romero cites no authority to undergird this proposition, however.

Generally, absent plain error resulting in manifest injustice, we will not

consider issues that are raised for the first time on appeal. See United States v.

Goode, 483 F.3d 676, 681 (10th Cir. 2007); United States v. Orr, 864 F.2d 1505,

1508-09 (10th Cir. 1988). A ny error here is hardly plain.

Consent is a factual issue to be determined by the totality of the

circumstances, not by per se rules. In other words, no one factor – including the

3
M r. Romero suggests that it would defy logic to believe that he would
have granted consent under the circumstances: “[t]here is no logical reason to
believe that he would [consent] if [the closet] contained cocaine.” Aplt. Opening
Br. at 15. However, the case law is replete with examples of individuals
consenting to a search that later reveals evidence of contraband, attesting to the
fact that people do not always behave logically. See, e.g., United States v.
Sawyer, 441 F.3d 890, 892 (10th Cir. 2006) (consensual search of defendant’s
business revealed stolen motorcycle engines), cert. denied, 127 S. Ct. 156 (2006);
United States v. Rosborough, 366 F.3d 1145, 1148 (10th Cir. 2004) (consensual
search of defendant’s vehicle revealed 30 pounds of cocaine).

-11-
execution of a consent-to-search form – is dispositive. Indeed, the Supreme Court

has tw ice rejected per se rules in determining the validity of a consent to search.

See Ohio v. Robinette, 519 U.S. 33, 39-40 (1996) (rejecting rule requiring “police

officers to always inform detainees that they are free to go before a consent to

search may be deemed voluntary”); Schneckloth v. Bustamonte, 412 U.S. 218,

227, 248-49 (1973) (rejecting rule requiring individuals to be informed of their

right to refuse consent). M ore specifically, citing Robinette, the Eighth Circuit

concluded that a signed consent-to-search form was not a prerequisite for

establishing the voluntariness of consent. United States v. Carrate, 122 F.3d 666,

670 (8th Cir. 1997). Accordingly, M r. Romero’s newly-spawned contention of

error regarding the officers’ failure to get his written consent is not plain, and w e

therefore will not consider it.

B. The District Court Did N ot Clearly Err in Finding that M r.
Romero Voluntarily Consented to the Search of the Closet.

M r. Romero also challenges the district court’s ruling that he voluntarily

consented to the search claiming that: (1) he was in custody in handcuffs in the

back seat of a patrol car; (2) he had been drinking heavily prior to the incident;

and (3) he was deceived by the police officer who told him officers were looking

for identification and did not mention any suspicion of drug activity. 4

4
On appeal, M r. Romero does not argue that his consent was involuntary
because of language barriers. A ny “communication barrier” M r. Romero refers to
involves his allegation that he had been drinking heavily. M r. Romero’s
(continued...)

-12-
 The government bears the burden of proving, by a preponderance of the

evidence, that the individual voluntarily consented – “a burden that is not

satisfied by showing a mere submission to a claim of lawful authority.” Florida

v. Royer, 460 U.S. 491, 497 (1983). The government must demonstrate that

consent w as given without duress or coercion, express or implied. See United

States v. Butler, 966 F.2d 559, 562 (10th Cir. 1992). The question of whether an

individual has voluntarily consented to a search is a question of fact that the

district court must evaluate under the totality of the circumstances. Robinette,

519 U.S. at 39-40; Schneckloth, 412 U.S. at 226-27; see also Cruz-M endez, 467

F.3d at 1265 (observing that voluntariness of consent is a question of fact which

is review ed under the highly deferential clearly-erroneous standard); United

States v. Sawyer, 441 F.3d 890, 895 (10th Cir. 2006) (“[T]he federal test for

determining the validity of consent to search requires a factual determination

4
(...continued)
arguments regarding the need for an interpreter all bear on the issue of Sgt.
Espinoza’s credibility. It is only in his reply brief that M r. Romero seems to
argue that the language barrier provides a basis for finding involuntary consent.
“Failure to raise an issue in the opening appellate brief waives that issue.” United
States v. Black, 369 F.3d 1171, 1176 (10th Cir. 2004). In any event, M r.
Romero’s contention is unpersuasive. The district court specifically noted that
“[a]lthough the defendant may not be completely fluent in English, the evidence
persuades the court that the defendant understood the request, that he was able to
comm unicate his thoughts to the officer, and he made a decision of his own free
will to grant permission to search the closet for his identification.” R. Vol. I, Doc.
25 at 7. These findings are not clearly erroneous. See United States v. Contreras,
372 F.3d 974, 977-78 (8th Cir. 2004) (finding that defendant’s difficulties w ith
English did not prevent him from voluntarily consenting to a search of his home).

-13-
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.’”) (quoting

Schneckloth, 412 U.S. at 225), cert. denied, 127 S. Ct. 156 (2006). Factors to

consider w ithin the totality of circumstances include:

• the threatening presence of several officers;
• the display or brandishing of weapons;
• some physical touching by an officer;
• use of aggressive language or tone of voice indicating that
compliance with an officer’s request is compulsory;
• prolonged retention of personal effects such as identification, plane
or bus tickets;
• request to accompany officer to the station;
• interaction in a nonpublic place;
• absence of other members of the public;
• the administration of M iranda warnings;
• use of physical violence;
• oral threats;
• promises, inducements, deception, trickery;
• the physical and mental condition and capacity of the defendant; and
• whether the police informed defendant of the right to refuse consent.

See G uerrero, 472 F.3d at 790; Sawyer, 441 F.3d at 895; United States v.

Hernandez, 93 F.3d 1493, 1500 (10th Cir. 1996).

Addressing M r. Romero’s first argument, the fact that M r. Romero was in

custody is not dispositive as to the voluntariness of his consent. See United

States v. Watson, 423 U.S. 411, 424 (1976) (“[T]he fact of custody alone has

never been enough in itself to demonstrate a coerced confession or consent to

search.”). “Consent to search may be voluntary, even though the consenting party

-14-
is being detained at the time consent is given.” United States v. Doyle, 129 F.3d

1372, 1377 (10th Cir. 1997). Accord United States v. Dozal, 173 F.3d 787, 796

(10th Cir. 1999); United States v. Soto, 988 F.2d 1548, 1557 (10th Cir. 1993)

(“Valid consent may be given by a person being detained.”). A court must look to

all the facts and circumstances to determine whether the consent to search was

freely given by an individual under arrest. See United States v. Shields, 573 F.2d

18, 23 (10th Cir. 1978).

Applying the factors enumerated above, the district court found that

although M r. Romero was in custody at the time he gave consent, the totality of

the circumstances did not warrant a finding that M r. Romero’s consent was

coerced. Specifically, the court observed that:

the defendant was on a public street in front of his home . . . , and the
officers did not use any overt display of force or coercion to gain the
consent. The interaction between the officer and the defendant was
cordial and courteous at the time of the request. And although the
officers did not inform the defendant that he had a right to refuse a
search, the manner in which the officer sought consent conveyed that
he was seeking the defendant’s permission for a search and that the
defendant was not obligated to give consent. M oreover, the evidence
shows that the defendant is a competent adult who understood the
circumstances and the nature of the officer’s request.

R. Vol. I, Doc. 25 at 7. In our view, the district court properly considered the fact

that M r. Romero was in custody along with the rest of the circumstances in

concluding that M r. Romero voluntarily consented to the search.

Second, M r. Romero argues that his heavy drinking prior to the incident

-15-
rendered his consent involuntary. The district court found that “despite testimony

of the defendant and his girlfriend about how much alcohol the defendant drank

prior to the incident, there is no credible evidence that defendant’s ability to

understand or make a voluntary decision was impaired to any significant degree

by alcohol.” R. Vol. I, Doc. 25 at 7. On appeal, M r. Romero fails to show why

this conclusion is clearly erroneous.

In United States v. Gay, 774 F.2d 368 (10th Cir. 1985), we held that the

defendant voluntarily consented to the search of his glove box even though his

drug intoxication made him slur his speech, stagger, sw ay, and use his vehicle to

support himself. Id. at 377 (recognizing “different degrees of intoxication” w here

an individual “can be too intoxicated to operate a motor vehicle, but rational

enough to understand requests and to give plausible explanations”). In this case,

M r. Romero understood and responded to Sgt. Espinoza’s and Officer Boone’s

questions and even offered a narrative explaining why he was running down the

street. Both officers also testified that they did not smell alcohol on M r.

Romero’s breath and that M r. Romero’s actions and demeanor did not indicate

that he had been drinking. Accordingly, the district court properly weighed the

evidence and did not clearly err in finding M r. Romero’s consent to be voluntary,

despite his alleged intoxication.

Third, M r. Romero claims that Sgt. Espinoza’s “deception” and “trickery”

regarding the object of the search rendered his consent invalid. Aplt. Opening Br.

-16-
at 16-17. W hen assessing the voluntariness of consent, the use of deception or

trickery is one factor to be considered in the totality of the circumstances.

Sawyer, 441 F.3d at 895. However, under the facts present here, this factor is of

no moment.

Sgt. Espinoza truthfully told M r. Romero that he wanted to look for proof

confirming his identity. He simply did not go further and tell M r. Romero he also

was looking for evidence of drug-dealing. Even if this omission could be

construed as evincing deceit, it would not be the kind of deceit that would have

the capacity on these facts to erode the strong foundation of M r. Romero’s

otherw ise voluntary consent. See United States v. White, 706 F.2d 806, 807-08

(7th Cir. 1983) (holding that officer’s subjective intent to search for money did

not render involuntary a defendant’s consent to search for drugs). Cf. United

States v. Kimoana, 383 F.3d 1215, 1224 (10th Cir. 2004) (“Although the officers

executing the search were looking for weapons rather than the vehicle key, the

subjective motivation of the officers executing the search is irrelevant.”). 5

Accordingly the district court did not comm it clear error in its determination of

voluntariness.

5
M r. Romero’s argument that Sgt. Espinoza was familiar with an
individual by the name of “Anthony Romero,” and therefore, had no need to
confirm M r. Romero’s identity is belied by the fact that M r. Romero steadfastly
maintained that he was not Anthony Romero. M oreover, even after finding the
drugs, Sgt. Espinoza continued to look for identification bearing the name
“Anthony Romero.”

-17-
 C. The Officers Did Not Exceed the Scope of M r. Romero’s Consent
in O pening up the Plastic Shopping Bag in the C loset.

M r. Romero also argues that Sgt. Espinoza exceeded the scope of any

alleged consent when he opened an opaque shopping bag found in the closet.

“The scope of a search is generally defined by its expressed object.”

Florida v. Jimeno, 500 U.S. 248, 251 (1991). Accord Kimoana, 383 F.3d at 1223.

Additionally, “the scope of the consent determines the permissible scope of the

search.” United States v. M arquez, 337 F.3d 1203, 1207 (10th Cir. 2003). Accord

United States v. West, 219 F.3d 1171, 1177 (10th Cir. 2000). In determining the

scope of the consent, courts apply an objective-reasonableness test: “[W]hat

would the typical reasonable person have understood by the exchange between the

officer and the suspect?” Jimeno, 500 U.S. at 251 (finding it objectively

reasonable for police to conclude that general consent to search defendant’s car

for drugs included consent to search paper bag on floor of car which might

reasonably have contained drugs). M oreover, consent to search for specific items

includes consent to search those areas and containers that might reasonably

contain those items. Id. Finally, whether a search remains within the boundaries

of consent is a question of fact to be determined by the totality of circumstances,

and a district court’s findings will be upheld unless they are clearly erroneous.

See Kimoana, 383 F.3d at 1223; West, 219 F.3d at 1177 (“The court determines

from the totality of the circumstances whether a search remains within the

-18-
boundaries of the consent, viewing the evidence in the light most favorable to the

government.”).

In this case, a reasonable person would have understood the exchange

between Sgt. Espinoza and M r. Romero to mean that M r. Romero was granting

permission to search anywhere in the closet for identification. The plastic

shopping bag discovered by Sgt. Espinoza in the closet reasonably could have

contained a receipt or other identifying information. M r. Romero disputes that

one could reasonably believe that identifying information could be found where

Sgt. Espinoza discovered the bag – that is, among folded (possibly clean) clothes.

But w e do not share M r. Romero’s doubt.

Sgt. Espinoza was feeling the pockets of the clothes when he found the bag.

Clothing pockets reasonably could be viewed as possible locations of identifying

information. Cf. M arquez, 337 F.3d at 1208-09 (holding it was objectively

reasonable for police to conclude that the general consent to search defendant’s

recreational vehicle for drugs and guns included consent to search compartment

under bench seat of vehicle where drugs and guns could reasonably have been

stored); United States v. Tirado, 313 F.3d 437, 440 (8th Cir. 2002) (searching

defendant’s bedroom closet and bag hanging in the closet was not beyond scope

of consent to search where defendant did not limit the scope of the search of his

bedroom); United States v. Ramstad, 308 F.3d 1139, 1446-47 (10th Cir. 2002)

(upholding officer’s removal of speaker grill covers as not exceeding scope of

-19-
general consent to search car); West, 219 F.3d at 1178 (affirming district court’s

conclusion that consent given by defendant to search car for drugs and firearms

reasonably included consent to search the trunk and the containers w hich could

have contained either drugs or firearms). Accordingly, we conclude that the

district court did not clearly err in finding that the search was within the scope of

M r. R omero’s consent.
III. C ON CLU SIO N

W e conclude that the district court did not comm it clear error in finding

that M r. Romero unequivocally and voluntarily consented to the search and that

the search did not exceed the scope of M r. Romero’s consent. Therefore, we

A FFIR M the district court’s judgment.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

-20-