FILED
NOT FOR PUBLICATION JUN 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10586
Plaintiff - Appellee, D.C. No. CR 12-01471-TUC-FRZ
v.
MEMORANDUM*
CARLOS POOM-MEDINA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Argued and Submitted April 14, 2015
San Francisco, California
Before: KOZINSKI and GRABER, Circuit Judges, and PONSOR,** Senior
District Judge.
Defendant challenges his 2013 convictions for possession of a firearm as an
alien, in violation of 18 U.S.C. §§ 922(g)(5)(a) & 924(a)(2), and illegal reentry
after deportation, in violation of 8 U.S.C. § 1326(a). Defendant contends that the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Michael A. Ponsor, Senior United States District
Judge for the District of Massachusetts, sitting by designation.
district court erred in denying his motion to suppress certain physical evidence (a
firearm) and statements made by him to officers. We affirm.
We review de novo the district court’s denial of a suppression motion.
United States v. Jones, 286 F.3d 1146, 1150 (9th Cir. 2002). We review the
district court’s underlying factual finding that Defendant voluntarily consented to
the entry and search under a clearly erroneous standard. Id.
1. The district court properly denied Defendant’s motion to suppress.
“[A] search conducted pursuant to a valid consent is constitutionally permissible.”
Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). The district court’s finding
that Defendant consented to the agents’ request to enter his home and search for
illegal aliens did not constitute clear error. The district court correctly applied the
five guidepost factors set forth in United States v. Patayan Soriano. 361 F.3d 494,
502 (9th Cir. 2004) (considering (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 he had a right not to consent;
and (5) whether the defendant had been told a search warrant could be obtained).
The record amply demonstrated that the agents, upon confronting Defendant after
he opened the door, identified themselves, never drew their weapons or threatened
Defendant, observed Defendant to be calm, and obtained his voluntary consent to
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enter and search the premises. Unlike the defendant in Florida v. Jardines, 133 S.
Ct. 1409 (2013), here Defendant was at home and affirmatively consented to a
search before the officers began looking for any evidence. Given those facts, the
time of day and location of the door are insufficient to support a conclusion that the
district court’s finding of voluntariness was clearly erroneous. Under the totality
of the circumstances, Defendant freely and voluntarily gave his consent.
Schneckloth, 412 U.S. at 222.
2. If a defendant does not limit the scope of his consent to a search, the
limits of the search extend to what is objectively reasonable or what “the typical
reasonable person [would] have understood by the exchange between the officer
and the suspect.” Florida v. Jimeno, 500 U.S. 248, 251 (1991). Defendant argues
that even if he did consent to a search, the fruits of that search nonetheless should
have been suppressed because the agents exceeded the scope of his consent when
they looked in a closet and discovered a firearm. The record is clear that
Defendant never limited the scope of his consent to a specific area of the house.
Agents did not breach any constitutional boundary by investigating the closet,
because the closet was large enough to hide an illegal alien, and a reasonable
person would have understood the request to search the house to include that area.
Thus, the search of the closet was constitutionally permissible. The seizure of the
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firearm was also permissible because a firearm, within a dwelling that officers
reasonably suspect is a stash house, has an “incriminating character [that] is
immediately apparent.” Minnesota v. Dickerson, 508 U.S. 366, 375 (1993); see
also United States v. Stafford, 416 F.3d 1068, 1076-77 (9th Cir. 2005).
3. The district court properly denied Defendant’s motion to suppress his
statements on Miranda grounds. An officer’s obligation to give a suspect
Miranda warnings before interrogation extends only to those instances where the
individual is “in custody.” Oregon v. Mathiason, 429 U.S. 492, 495(1977) (per
curiam). To determine whether an individual is in custody, a court must examine
all of the objective circumstances surrounding the interaction. Berkemer v.
McCarty, 468 U.S. 420, 442 (1984). In this case, one agent, for security purposes,
remained near Defendant in an area slightly apart from where the search occurred,
while other officers performed the brief search. Defendant was not in custody, and
it was not error to admit statements made by Defendant during this time. Only
after Defendant corrected his previous lie and admitted he was not a U.S. citizen
did the agents arrest him and place him in custody. Here, Miranda warnings were
not required until he was arrested. Mathiason, 429 U.S. at 495.
AFFIRMED.
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