United States v. Fernado Ortiz

NOT RECOMMENDED FOR PUBLICATION
File Name: 12a0052n.06
FILED
No. 08-6257 Jan 13, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT

United States of America, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
Fernado Ortiz, aka Fernando Ortiz, ) WESTERN DISTRICT OF KENTUCKY
aka Alex Florez-Torres )
)
Defendant-Appellant. )
)

BEFORE: MERRITT and COLE, Circuit Judges; VARLAN, District Judge.*

I. Overview

MERRITT, Circuit Judge. Fernando Ortiz was charged with possessing methamphetamine

with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1), and with possessing a gun after

entering the United States illegally, in violation of 18 U.S.C. § 922(g)(5)(A). Ortiz thereafter moved

to suppress the evidence against him (a “bindle” of meth, a syringe, and a burned piece of aluminum

foil) on the basis that the police obtained it through conducting a non-consensual, warrantless search

of his apartment.1 Pursuant to the magistrate judge’s recommendation, the district court denied

*
The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of Tennessee, sitting
by designation.

1
Ortiz also challenged as lacking in probable cause the search warrant that the police used to conduct a second,
more thorough search of his apartment that produced additional drugs and drug paraphernalia, an unloaded AR-15 assault
rifle, and several clips of ammunition. However, he does not raise this issue on appeal beyond arguing that, “[i]f the
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U.S. v. Ortiz

Ortiz’s motion. Ortiz then pled guilty to the charged offenses, and the district court sentenced him

to 97 months in prison.2 On appeal, Ortiz challenges the district court’s order denying his

suppression motion by claiming, once again, that he did not consent to the search that yielded the

incriminating evidence. First, he asserts that the police entered his apartment without his consent.

(Appellant’s Br. 23.) Alternatively, Ortiz argues that even if this initial entry was consensual, the

subsequent search of his back bedroom was not. Id. at 23-24.

II. Facts

The facts relevant on appeal are as follows. On October 6, 2006, uniformed Louisville Police

Officers Donald Schrout and Dennis Embry knocked on Ortiz’s door.3 They suspected Ortiz of

attempted sexual assault because some of his neighbors and the victim, a thirteen year-old girl, had

identified him as the perpetrator. According to the officers, once Ortiz answered the door, they

explained to him in English the reason for their presence, and then asked him (also in English) if they

could step into his apartment to discuss the accusations with him further. Both officers testified that

Ortiz responded by stepping back, gesturing, and opening the door wider, which they interpreted as

a grant of affirmative, nonverbal consent to enter. Once inside his living room, the officers asked

Ortiz (an illegal immigrant) to produce identification, but he was unable to readily satisfy their

[c]ourt suppresses the plain view items seized from the search of Mr. Ortiz’s bedroom, then the search and seizure
warrant that contained the tainted information should be suppressed as well.” (Appellent’s Br. 24.)

2
Ortiz entered his guilty plea pursuant to a plea agreement that does not bar the instant appeal. (Appellee’s Br.
4-5.)

3
Ortiz claims that three officers were involved in the search. However, Schrout, Embry, and Detective Collin
King (whom Schrout radioed after finding the incriminating evidence) were the only members of law enforcement to
testify at the suppression hearing, and so the other officer – if indeed there was one – remains unidentified.

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request. However, Ortiz indicated that he might have some form of identification (such as mail or

check stubs) in his back bedroom. There is some disagreement over what happened next. Officer

Schrout testified that he specifically asked to accompany Ortiz into his bedroom, and that Ortiz

signaled his consent by a gesture. Officer Embry was more equivocal, and indicated that he was

unsure whether either officer verbally requested permission to follow Ortiz. Ortiz, for his part,

asserts that neither officer requested – nor did he give – such permission.4 It is undisputed, however,

that Ortiz did not protest when the officers followed him down the hall and into his bedroom, at

which point Officer Schrout observed the drugs and drug paraphernalia in plain view on a cabinet.

III. Discussion

1. Consent to Initial Police Entry

We review for clear error the district court’s finding that Ortiz consented to the officers’

entry into his apartment and assess the evidence in the light most favorable to the prosecution. See

United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc); United States v. Lopez-Medina,

461 F.3d 724, 737 (6th Cir. 2006). However, the government bears the burden of proving that Ortiz

freely and voluntarily consented to the warrantless search. See Carter, 378 F.3d at 587. It has done

so in this case. Consent to a search may be nonverbal so long it is not the product of “duress,

4
At the suppression hearing, Ortiz provided an account of the search that painted a far more coercive picture
of police activity. Specifically, he asserted that three officers asked him for identification while they were standing
outside his front door, and that they barged into his apartment when he turned to retrieve his ID from his bedroom. He
also testified that Officer Schrout grabbed his hand and detained him in the living room while the two other officers
searched his back bedroom. This version of events directly contradicted the testimony of Officers Schrout and Embry,
who both stated that it was Officer Schrout who found the drugs. Ortiz backtracks on appeal, attributing his initial story
to a probable case of “memory lapse” since the police later detained him after finding the illicit materials. (Appellant’s
Br. 16.)

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coercion, or trickery.” United States v. Buchanan, 904 F.2d 349, 355 (6th Cir. 1990). Although

there is no evidence that the police officers threatened him either verbally or physically, Ortiz

nonetheless maintains that his actions (stepping back, gesturing, and opening the door wider) were

an expression of his submission to authority rather than an unequivocal statement of free and

voluntary consent. (Appellant’s Br. 23.)

It is true that “stepping back in fear is not consent.” Carter, 378 F.3d at 589 (citing Robbins

v. MacKenzie, 364 F.2d 45, 48 (1st Cir. 1966)). Moreover, it is also true that the presence of

uniformed policemen at his door, and the nature of his discussion with those officers, likely rendered

Ortiz nervous. However, the district court did not clearly err when it concluded, pursuant to the

magistrate judge’s recommendation, that more was required to vitiate the assent that Ortiz otherwise

unambiguously conveyed by his conduct. In Carter, this court held that uniformed police officers

had validly obtained consent to enter when they “properly asked permission . . . and [the suspect]

stepped back, letting them in.” 378 F.3d at 588. Ortiz does not sufficiently distinguish the facts of

that case from his own. Further, although Ortiz’s ability to understand English is indeed relevant

to the question of whether his consent was valid (he is a native Spanish speaker, albeit one who has

spent the past ten years living in the United States), he does not claim that he failed to understand

the officers’ request. See United States v. Riascos-Suarez, 73 F.3d 616, 625 (6th Cir. 1996). For

their part, Officers Schrout and Embry testified that they had no trouble communicating in English

with Ortiz. Finally, Ortiz does not assert that he lacked awareness of his right to refuse entry. See

United States v. Ivy, 165 F.3d 397, 402 (6th Cir. 1998). Thus, we hold that Ortiz gave the police

consent to enter his apartment.

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2. Consent to the Bedroom Search

We also hold that Ortiz consented to the search of his back bedroom. Ortiz claims that the

district court erred by crediting the conflicting testimony of Officers Schrout and Embry over his

own. However, this court has repeatedly held that “[f]indings of fact anchored in credibility

assessments are generally not subject to reversal upon appellate review.” See, e.g., United States v.

Hudson, 405 F.3d 425, 442 (6th Cir. 2005) (internal quotations omitted). Moreover, there is no

dispute on appeal that Ortiz’s demeanor was cooperative and that he did not protest when the officers

followed him down the hall and entered his bedroom. It was not unreasonable for the officers to

believe that they had permission to do so. See Carter, 378 F.3d at 588 (noting that, when

interpreting an exchange with a suspect, “police are not held to a higher standard . . . than an ordinary

person”). The district court did not err by concluding that the bedroom search fell within the scope

of Ortiz’s consent.

For the foregoing reasons, the order of the district court is AFFIRMED.

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