United States v. Kimoana

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 15 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.

FONUA KIMOANA, also known as No. 03-4023
Siong Fonua Vailea, also known as
Sione Moungloa, also known as Fokisi
Kimoana,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:02-CR-232-PGC)

Benjamin A. Hamilton, Salt Lake City, Utah, for Defendant-Appellant

Michele M. Christiansen, Assistant United States Attorney (Paul M. Warner,
United States Attorney for the District of Utah, with her on the brief), Salt Lake
City, Utah, for Plaintiff-Appellee.

Before EBEL, ANDERSON, and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

Defendant Fonua Kimoana (“Defendant”) was convicted under 18 U.S.C.

§ 922(g) as a felon in possession of a firearm. He now challenges the district
court’s refusal to suppress the firearm as evidence. We hold that the entry and

resultant search were justified by consent given by “Nick,” a third party with both

actual and apparent authority. Alternatively, once the officers’ initial entry into

the room was justified by Nick’s consent, the subsequent search was justified by

voluntary consent given by Patelo Vake. Accordingly, we exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and AFFIRM.

BACKGROUND 1

On March 12, 2002, Officer Robert Miner was sitting in his car after

having cleared an alarm drop at a business near a Days Inn in Midvale, Utah. A

man approached Officer Miner, and looked suspicious because he was “jittery,

looking around and appeared to be very nervous.” The man turned out to be

Nitokalisi Fonua (“Nick”), 2 who told Officer Miner that he had stolen a white

GMC Blazer that was parked nearby. Nick led Officer Miner to the car, and the

officer noticed a sawed-off shotgun in the back seat with markings that looked

gang-related. Nick told Officer Miner that he was staying in a room at the Days

Inn that he was sharing with his “cousins” (meaning people he knows from the

Except where otherwise noted, all of the following facts were taken from
1

uncontested findings of fact in the district court’s opinion dated October 25,
2002.
2
Because the name is similar to Defendant’s name, the parties refer to
Nitokalisi Fonua by his nickname, Nick.

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streets). The registered renter of this room turned out to be Defendant. Nick said

that he did not care if the officer searched the room for the vehicle key. In

response to Officer Miner’s request whether he could use Nick’s room key to

enter the room if nobody answered the door, Nick again said that he did not care.

Officer Miner called other officers to the scene and filled them in on the

details above. He gave Nick’s motel key to Officer Mohr, Sargeant Kent Jarvis,

and Officer Scott Nesbitt. Officer Miner stayed with Nick while the other

officers knocked on the door of the motel room to retrieve the car key. As the

district court explained, the officers “had their weapons drawn because they

suspected that the people in the room may be gang members and that there may be

other weapons in addition to the sawed-off shotgun already found.” Additionally,

Officer Nesbitt believed that the other people in the motel room may be

accomplices to Nick’s vehicle theft.

In response to the officers’ knock, Patelo Vake opened the door. Defendant

was also in the room, but did not prevent Vake from answering the knock on the

door. As the door opened, Officer Nesbitt saw a woman on the bed pointing an

unidentified black object at the wall. 3 At that point, the officers ordered the three

people in the room to show their hands, and they conducted a pat down search of

Upon further investigation, the officers later learned that this object was a
3

remote control for the television.

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the occupants to check for weapons. As soon as the officers concluded that no

weapons posed a threat to their personal safety, they holstered their guns.

While the officers were in the room, Officer Miner advised them via radio

that he had found a 9mm shell casing inside the stolen Blazer, and that the

occupants of the room may be involved in a drive-by shooting and may have more

weapons. Officer Nesbitt asked Vake for consent to search the room for weapons.

The district court found Officer Nesbitt’s testimony credible when he described

the atmosphere in the room as “calm” at this point. Immediately after the first

request, Vake gave the officers his consent to search the room. After obtaining

Vake’s consent, the officers searched the room and found a long-barreled revolver

under the mattress.

On April 17, 2002, Defendant was charged by a federal grand jury with

possession of a firearm by a convicted felon in violation of 18 U.S.C. §922(g).

Defendant filed a motion to suppress the firearm found in his hotel room on two

grounds: (1) the officers’ initial entry into the room violated the Fourth

Amendment as it was based on consent by a third party (Nick) without actual or

apparent authority and it exceeded the scope of Nick’s consent to search for the

vehicle key, and (2) the officers’ subsequent search of the motel room violated

the Fourth Amendment because Vake’s consent was not “voluntary.” The district

court denied this motion, and Defendant entered a conditional plea of guilty,

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preserving his right to challenge the district court’s denial of his motion to

suppress. Defendant was later sentenced to twenty-seven months in prison,

followed by thirty-six months of supervised release. Judgment was entered on

January 30, 2003, and Defendant filed a timely notice of appeal from the district

court’s order on the motion to suppress on January 31, 2003.

DISCUSSION

Standard of Review:

When reviewing a district court’s denial of a motion to suppress, we will

consider the totality of the circumstances and view the evidence in a light most

favorable to the government. United States v. Long, 176 F.3d 1304, 1307 (10th

Cir. 1999). We will accept the district court’s factual findings unless those

findings are clearly erroneous. Id. The credibility of witnesses, the weight to be

given evidence, and the reasonable inferences drawn from the evidence fall within

the province of the district court. Id.; United States v. Broomfield, 201 F.3d

1270, 1273 (10th Cir. 2000). The ultimate determination of reasonableness under

the Fourth Amendment is a question of law reviewable de novo. Long, 176 F.3d

at 1307; United States v. Little, 60 F.3d 708, 712 (10th Cir. 1995).

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Analysis:

We hold that the officers’ entry into the motel room and subsequent search

was justified by Nick’s consent, as he was a third party with actual and apparent

authority, and the officers did not exceed the scope of his consent. Alternatively,

once the officers’ initial entry into the motel room was justified by Nick’s

consent, their subsequent search was justified by Vake’s voluntary consent.

A. The Officers’ Entry and Search of the Motel Room as Justified by
Nick’s Consent

No party disputes that Nick gave Officer Miner consent to search the motel

room. The dispute centers on whether Nick had actual and/or apparent authority

to give such consent, and whether the officers acted within the scope of his

consent in executing the subsequent search of the room. We answer each

question in the affirmative.

1. Nick had actual and apparent authority to consent to the entry
and search of the motel room.

Defendant argues that Nick lacked actual or apparent authority to consent

to the officers’ entry into and search of the motel room. The crux of his argument

is that Nick was not the registered renter of the room and that the officers were

aware of the ambiguity surrounding who rented the room. As described below,

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we disagree with Defendant and find that Nick had both actual and apparent

authority to consent.

Overnight guests and joint occupants of motel rooms possess reasonable

expectations of privacy in the property on which they are staying. Minnesota v.

Carter, 525 U.S. 83, 89-90 (1998); Stoner v. California, 376 U.S. 483, 489-90

(1964). 4 The Fourth Amendment generally prohibits the government from making

a warrantless entry into a person’s residence to search for specific objects.

Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). This general rule has a few

exceptions, however. “[O]ne of the specifically established exceptions to the

requirements of both a warrant and probable cause is a search that is conducted

pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

“The [Fourth Amendment] prohibition does not apply . . . to situations in which

voluntary consent has been obtained, either from the individual whose property is

searched or from a third party who possesses common authority over the

premises.” Rodriguez, 497 U.S. at 81 (citations omitted).

A third party’s consent to search is valid if that person has either the

“actual authority” or the “apparent authority” to consent to a search of that

4
See also United States v. Thomas, 372 F.3d 1173, 1176 (10th Cir. 2004)
(“Further, we have held that even social guests who do not stay the night have a
reasonable expectation of privacy in the host’s home and may therefore challenge
a search of the home on Fourth Amendment grounds.”).

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property. United States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1230 (10th Cir.

1998) (citing Rodriguez, 497 U.S. at 188). The test for “actual authority” was

articulated in United States v. Matlock, 415 U.S. 164, 171 (1974), and interpreted

by the Tenth Circuit in United States v. Rith, 164 F.3d 1323, 1329 (10th Cir.

1999). In Rith, we stated that “a third party has authority to consent to a search

of property if that third party has either (1) mutual use of the property by virtue of

joint access, or (2) control for most purposes over it.” Id. Therefore, the

gravamen of the “actual authority” rule is that it is reasonable to recognize that

“any of the co-habitants has the right to permit the inspection in his own right and

. . . the others have assumed the risk that one of their number might permit the

common area to be searched.” Matlock, 415 U.S. at 171 n.7.

The Supreme Court set forth the test for “apparent authority” in Rodriguez,

497 U.S. at 186-88. “Rodriguez held that the Fourth Amendment is not violated

when officers enter without a warrant when they reasonably, although

erroneously, believe that the person who consents to their entry has the authority

to consent to this entry.” Gutierrez-Hermosillo, 142 F.3d at 1230. 5 The “apparent

5
Defendant argues that Gutierrez-Hermosillo is inapposite here, insisting
that it involved only the question of whether a minor could provide such third-
party consent. This is an incorrect reading of the case, as the court dealt with the
consenter’s minority as one factor in the consideration of whether an officer could
reasonably believe that the minor had authority to consent under these rules. The
relevance of the case is in no way limited to the minority issue, as the court
(continued...)

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authority” test for determining the reasonableness of the officer’s belief is an

objective one: “[W]ould the facts available to the officer at the moment . . .

warrant a man of reasonable caution [to believe] that the consenting party had

authority over the premises?” Id. (quoting Rodriguez, 497 U.S. at 188). Police

officers must evaluate the surrounding circumstances in order to determine

whether a reasonable person would “act upon [the invitation] without further

inquiry.” Rodriguez, 497 U.S. at 188.

Although we review for clear error the factual findings underlying the

district court’s determination, we review de novo the determination of the

reasonableness of an officer’s belief in the consenter’s authority. See Gutierrez-

Hermosillo, 142 F.3d at 1229-30.

In this case, Defendant argues that Nick lacked “actual authority” because

he was not the registered renter of the motel room. However, the Supreme Court

has instructed,

Common authority is, of course, not to be implied from the mere
property interest a third party has in the property. The authority
which justifies the third-party consent does not rest upon the law of

5
(...continued)
investigated other factors in addition to age when it concluded that the consenter
indeed had authority to consent. “These facts are sufficient to establish the
officers’ reasonable belief that Nora had mutual use of the motel room and that
Defendant assumed the risk that she would permit the officers to enter the motel
room.” Gutierrez-Hermosillo, 142 F.3d at 1231.

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 property, . . . but rests rather on mutual use of the property by
persons generally having joint access or control for most purposes[.]

Matlock, 415 U.S. at 171 n.7. Although Defendant was not the registered guest

who had paid for the room, he had stayed there overnight, left his possessions

there, and carried a key to the room. This supports a finding that Defendant had

joint access or control over the room, and thus had actual authority to consent.

Even if Nick lacked actual authority, however, his consent would be valid

if Officer Miner reasonably believed that Nick had such authority. Defendant

argues that Nick lacked apparent authority because he told Officer Miner that the

room was not his and thus Officer Miner’s belief that Nick possessed authority

was unreasonable. Defendant is correct that where an officer is presented with

ambiguous facts related to authority, he or she has a duty to investigate further

before relying on the consent. In United States v. Salinas-Cano, we quoted with

favor the D.C. Circuit’s interpretation of Rodriguez on this point: “The burden [of

proving effectiveness of consent] cannot be met if agents, faced with an

ambiguous situation, nevertheless proceed without making further inquiry.” 959

F.2d 861, 864 (10th Cir. 1992) (quoting United States v. Whitfield, 939 F.2d

1071, 1075 (D.C. Cir. 1991)) (emphasis omitted). Warrantless entry is unlawful

without further inquiry if “circumstances make it unclear whether the property

about to be searched is subject to mutual use by the person giving consent.” Id.;

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(quotation omitted), see also United States v. Rosario, 962 F.2d 733, 738 (7th Cir.

1992); Kaspar v. City of Hobbs, 90 F. Supp. 2d 1313, 1319 (D. N.M. 2000).

If we viewed Nick’s statement that it was not his room in a vacuum, any

consent to search given by Nick would obviously be ambiguous at the very least.

In that case, the government would not have met its burden to show effective

third-party consent, as the officers did not make any further inquiry into Nick’s

authority to consent. See Salinas-Cano, 959 F.2d at 864. However, we do not

view these facts in a vacuum, and the totality of the circumstances in this case

demonstrates that the officers had sufficient information reasonably to believe in

Nick’s authority to consent. Although Nick was not the registered property owner

or renter, Officer Miner knew that Nick had a key to the room and that he had

stayed there with his “cousins.” Nick is in the position of the consenter in

Gutierrez-Hermosillo, who was not the registered renter of the motel room, but

presented facts “sufficient to establish the officers’ reasonable belief that [she]

had mutual use of the motel room and that Defendant assumed the risk that she

would permit the officers to enter the motel room.” Gutierrez-Hermosillo, 142

F.3d at 1231. Therefore, the officers’ reliance on Nick’s apparent authority was

justified.

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 2. Officers did not exceed the scope of Nick’s consent.

Defendant argues that even if Nick had authority to consent, the consent

given was limited to permitting entry only if nobody was in the room. According

to Defendant, the officers thus exceeded the scope of consent when they entered

the room after Vake answered the door. We disagree, and find that the district

court did not clearly err in finding that Nick’s consent was not so narrow.

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

Florida v. Jimeno, 500 U.S. 248, 251 (1991); see also United States v. Anderson,

114 F.3d 1059, 1065 (10th Cir. 1997) (noting that “[t]he scope of a search is

generally defined by its expressed object and is limited by the breadth of the

consent given”) (quotation omitted). We apply an objective reasonableness test to

measure the scope of a person’s consent: “[W]hat would the typical reasonable

person have understood by the exchange between the officer and the suspect?”

Id. (quoting Jimeno, 500 U.S. at 251).

Consent to search for specific items includes consent to search those areas

or containers that might reasonably contain those items. Jimeno, 500 U.S. at 251;

United States v. Wacker, 72 F.3d 1453, 1470 (10th Cir. 1995) (discussing

Jimeno); see also United States v. Zapata, 180 F.3d 1237, 1243 (11th Cir. 1999)

(“A general consent to search for specific items includes consent to search any

compartment or container that might reasonably contain those items.”). Whether

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a search remains within the boundaries of the consent is a question of fact to be

determined from the totality of the circumstances, and a trial court’s findings will

be upheld unless they are clearly erroneous. United States v. Pena, 920 F.2d

1509, 1514 (10th Cir. 1990). In ascertaining whether officers exceeded the scope

of consent, the court must view the facts in the light most favorable to the

government. Id. at 1514-15.

In the instant case, Officer Miner testified that he asked Nick “if we could

obtain the keys to the vehicle so we could turn those back over to the owner,” and

that Nick “said they were in the room somewhere lost.” He then “asked him if we

could go up to the room and retrieve the keys” and “[Nick] said he didn’t care.”

Officer Miner then testified that after discovering the room key on Nick’s person,

he asked “if no one answers the door, if we could utilize that key to access that

room to locate the keys to the vehicle, and he said he didn’t care.” Officer Jarvis

testified that Miner had told him that “we had permission from one of the people

outside to go inside[.]” Nick testified that he told Officer Miner that he believed

the keys were lost in the motel room, and that he gave the officer permission to

search the room for the key: “I say it was in my room and, yes, if he can search it.

And I say, I don’t care.” He also answered “Yes” in response to the question,

“You told the officers you didn’t care if they went to the room?”

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 Viewing the evidence in the light most favorable to the government, the

district court did not commit clear error in interpreting this evidence to mean that

Nick had indeed given the officers consent to enter the motel room for the

purpose of searching for the vehicle key. The record supports the district court’s

holding that “any limitation to [Nick’s] consent pertained (at most) to using the

card key to enter the room if no one answered the door” and that the consent was

not narrowed to entry only if nobody was in the room. Although Officer Miner

testified elsewhere that his own subjective understanding of Nick’s consent was

that it was limited to entry if nobody was there, the standard is an objective one

and the officer’s own understanding is thus not dispositive. Rather, the court had

to decide whether a typical reasonable person would have thought that Nick’s

permission was to enter the room to find the vehicle key (using the motel room

key if nobody was there), or whether a typical reasonable person would have

thought that the permission was limited to entry only if nobody was there. See

Anderson, 114 F.3d at 1065. Based upon our review of the officers’ and Nick’s

testimony regarding the consent given, we cannot say that the district court was

clearly erroneous in opting for the first interpretation.

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 Additionally, no party disputes that the gun was found in a place where a

car key would reasonably fit (under a mattress). 6 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. The district court

thus did not clearly err in finding that the search did not exceed the scope of

Nick’s consent.

3. Summary

In conclusion, we affirm the district court on the ground that Nick’s

consent was made with actual and apparent authority, and the officers’ search did

not venture outside the scope of that consent.

B. Once the Officers’ Entry Into the Motel Room was Justified by Nick’s
Consent, the Subsequent Search was also Justified by Vake’s Consent

Once inside the motel room, the officers did a protective pat-down of the

occupants for weapons, holstered their guns, and asked Vake for consent to search

6
Defendant argues in passing that the intensity of police activity was not
necessary to accomplish the stated purpose of the search and thus exceeded the
scope of consent. He cites a treatise that provides, “When a purpose is included
in the [officer’s] request, then the consent should be construed as authorizing only
that intensity of police activity necessary to accomplish the stated purpose.” 3
Wayne R. LaFave, S EARCH AND S EIZURE , 8.1(c), at 620 (3d ed. 1996). However,
Defendant gives no facts to demonstrate that the officers used an unreasonable
amount of force or intensity in executing the search for the car key.

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the room for weapons. Because Vake voluntarily consented to this subsequent

search, the subsequent search was justified and the gun that was found during this

search need not have been suppressed.

After the officers had entered the room and performed the pat down with

guns drawn, Officer Miner advised them by radio that he had found a 9mm shell

casing inside the stolen vehicle, and that the occupants of the room may be

involved in a drive-by shooting and may have more weapons. Immediately after

the officers holstered their weapons, Officer Nesbitt turned to Vake, the person

who had opened the door, and asked for his permission to search the motel room

for weapons. Vake consented, and the subsequent search yielded the gun that

formed the basis of Defendant’s charge. Defendant argued to the district court

that Vake’s consent was involuntary. 7 However, the district court made a finding

7
Defendant does not seem to dispute that Vake had at least apparent
authority to consent to the search of the motel room. Because Vake opened the
door without consent or permission from Defendant (who was present in the
room), this weighs in favor of apparent authority. As the Seventh Circuit stated
in Rosario, “By allowing [consenter] unfettered access to the door, the appellants
also gave him discretion to decide whom to admit, thereby sacrificing some
degree of their privacy” and assuming the risk of this situation occurring. 962
F.2d at 737. Vake acted as “the keeper of the door.” See id. at 738.
Additionally, as the district court pointed out, the fact that Defendant never
objected to Vake’s consent or the subsequent search also supports a finding of
apparent authority on Vake’s part. See id. (finding apparent authority in part
because the defendants did not “approach the doorway, voice their objections to
the proposed entry, or otherwise attempt to intercede in the exchange between
[consenter] and the police”); United States v. Morales, 861 F.2d 396, 400 (3d Cir.
(continued...)

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of fact that Vake’s consent was indeed voluntary, and as described below, we find

no clear error in this determination.

“When a prosecutor seeks to rely upon consent to justify the lawfulness of a

search, he has the burden of proving that the consent was, in fact, freedly and

voluntarily given.” Bustamonte, 412 U.S. 218, 222 (1973) (quotations omitted).

This means that the consent cannot be “coerced, by explicit or implicit means, by

implied threat or covert force.” Id. at 228. Consent is voluntary if there is no

indication of either “force or intimidation.” United States v. Dewitt, 946 F.2d

1497, 1500 (10th Cir. 1991). “Voluntariness is a question of fact to be

determined from all the circumstances[.]” Schneckloth, 412 U.S. at 248-49.

Defendant focuses on the facts that the officers entered the motel room

with guns drawn, raising their voices at the occupants and ordering them to put

their hands where the officers could see them. After performing a pat down, the

officers put their weapons back in their holsters, the atmosphere was described as

“calm,” and then Officer Nesbitt “immediately” asked Vake for consent to search

7
(...continued)
1988) (noting that the defendant’s “silence during [officer’s] inspection of the car
is material in assessing [consenter’s] authority”). It is likely that Vake also had
actual authority, since he had stayed in the room the previous night and Defendant
does not point us to any evidence that Vake’s control over the room was somehow
limited.

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the room. Defendant argues that this chain of events constituted subtle coercion

or show of force sufficient to render Vake’s consent involuntary.

Because we review for clear error, it is not detrimental whether we may

have agreed with Defendant had we been in the district court’s position. See

Dewitt, 946 F.2d at 1500 (stating that under the clear error standard of review,

“[w]e must not substitute our judgment for that of the district court”). Rather, if

there is “any rational basis” for the district court’s finding on this fact-based

inquiry, we must affirm. Gutierrez-Hermosillo, 142 F.3d at 1231.

Although there may be support for Defendant’s view, there is indeed

support for the district court’s view in this case. For example, several courts have

found a defendant’s consent to be voluntary where the officers approached the

defendant with guns drawn, but then holstered them once the area was secured

and before asking for consent to search. See e.g., United States v. Mitchell, 209

F.3d 319, 324 (4th Cir. 2000); United States v. Broussard, 80 F.3d 1025, 1036

(5th Cir. 1996); United States v. Alfonso, 759 F.2d 728, 741 (9th Cir. 1985);

United States v. Jones, 154 F. Supp. 2d 617, 620-21 (S.D.N.Y. 2001).

The Seventh Circuit has also faced a couple of situations similar to that

presented here, and it found that the district court did not commit clear error in

deeming the consent to be voluntary. For example, in United States v. Taylor, the

court found the consent to be voluntary even though “the initial shock of several

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armed federal agents descending upon [defendant] may have understandably upset

[him].” 31 F.3d 459, 463 (7th Cir. 1994). The consent was not coerced because

“no agents placed a gun to [defendant’s] head or threatened him in any other

fashion, and . . . weapons were holstered and other indicia of authority . . . were

taken off within a few moments of the agents’ arrival[.]” Id. The court explained

that the “initial melee” was “certainly unpleasant,” but that there was “nothing so

inherently coercive about such tactics,” especially when the tactics were necessary

to protect the safety of the agents. Id. at 463-64.

Similarly, in United States v. Rojas, the court found that the consent to

search was voluntary, even though the officers approached the defendant’s

residence with guns drawn and ordered him to place his hands on the wall. 783

F.2d 105, 107-09 (7th Cir. 1986). After a pat down and survey of the apartment

for safety, the officers holstered their guns and later testified that the atmosphere

was “calm and controlled.” Id. at 108. The totality of circumstances were not

such that the defendant was coerced into granting consent to search. Id. at 107-

09; see also United States v. Evans, 27 F.3d 1219, 1223, 1230 (7th Cir. 1994)

(same).

In the instant case, the district court examined the totality of circumstances

and acknowledged that “the actions of the officers in sweeping the room with

guns drawn and patting down the occupants would be potentially intimidating

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events that could, in some circumstances, ultimately produce an invalid or

involuntary consent.” However, the court found Officer Miner’s testimony

credible when he described the atmosphere in the room as “calm,” and the court

emphasized the fact that the officers had holstered their weapons before

requesting consent from Vake. We view these facts in a light favorable to the

government, and agree with the courts that have upheld district court findings of

voluntariness in situations similar to the one at hand. We thus hold that the

district court’s finding was indeed “rational.” Gutierrez-Hermosillo, 142 F.3d at

1231.

Additionally, “the credibility of the witnesses at the suppression hearing is

critical to a district court’s consent determination.” Id. As the Seventh Circuit

pointed out in United States v. Pedroza, “We give special deference to such

credibility determinations, which can virtually never be clear error.” 269 F.3d

821, 826 (7th Cir. 2001). Because the district court found Officer Miner’s

description of the calm atmosphere to be credible, and because the weapons were

holstered before requesting consent, we do not find clear error in the factual

determination that Vake’s consent was voluntary.

In summary, we affirm the district court’s order on the alternative ground

that the entry was justified by exigent circumstances and the subsequent search

was justified by Vake’s voluntary consent.

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 CONCLUSION

Under either of the two alternative analyses set forth above, we AFFIRM

the district court’s denial of Defendant’s motion to suppress.

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