United States v. Pikyavit

                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  June 4, 2008
                                    PUBLISH                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
       v.                                               No. 07-4113
 RUSSELL PIKYAVIT,

             Defendant-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF UTAH
                   (D.C. NO. 2:06-CR-407-PGC)


Bretta Pirie, Assistant Federal Public Defender (Steven B. Killpack, Federal
Public Defender, and Scott Keith Wilson, Assistant Federal Public Defender, with
her on the briefs) Office of Federal Public Defender, Salt Lake City, Utah.

Diana Hagen, Assistant United States Attorney (Brett L. Tolman, United States
Attorney, with her on the brief) Office of the United States Attorney, Salt Lake
City, Utah.


Before O’BRIEN, TYMKOVICH, and HOLMES, Circuit Judges.


TYMKOVICH, Circuit Judge.
      Following a fight outside his house, Russell Pikyavit was arrested and

jailed along with four other men. A week later while still in jail, Pikyavit

directed the police to visit the home and examine the living quarters for evidence

of a fight that would show he was not the aggressor. The police visited the home

as Pikyavit directed, but found the front door locked when they arrived. They

slipped the lock and searched the home. During the search, police found

ammunition in plain view.

      Pikyavit was indicted on one count of being a felon in possession of

ammunition in violation of 18 U.S.C. § 922(g)(1). A jury found him guilty and he

was sentenced to 180 months imprisonment. On appeal, he argues that although

he consented to a limited search of his home, the police exceeded the scope of his

consent by entering the locked front door and searching beyond the living room

and kitchen. Pikyavit asks this court to declare the search unconstitutional and

suppress the ammunition found in a bedroom.

      We conclude the search did not exceed the scope of Pikyavit’s consent and

the district court therefore correctly denied Pikyavit’s motion to suppress.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

                                  I. Background

      On the night of April 26, 2006, Millard County police responded to a brawl

between Pikyavit and several other men near Pikyavit’s home. Pikyavit and the

others exhibited various wounds and were bleeding, some of them heavily.

                                         -2-
Officers arrested Pikyavit and four others believed to have been involved in the

fight. After Pikyavit had been in jail for around one week, his brother visited

Pikyavit’s home, and discovered evidence suggesting Pikyavit was not the

aggressor in the fight. The brother told Pikyavit about this evidence. Pikyavit,

eager to support his claim that he was a victim of violence, rather than an

aggressor, asked to speak with the officers investigating the incident. He spoke

with both Detective Jacobson and Deputy Carter.

      Pikyavit spoke first with Jacobson. He told the officer the fight had taken

place in his home and there was evidence inside. He said his brother had seen

blood in the kitchen and on a wooden board in front of the house. Pikyavit then

spoke with Deputy Carter. He reiterated the fight had taken place in his home

and that he wanted the police to search it for evidence supporting his innocence.

Pikyavit told Carter evidence of the fight, including remnants of his blood and

hair, would be located throughout the house and would show he was defending

himself. Pikyavit also told Carter the door would be unlocked. Because of this

statement, Carter did not think he needed a key.

      Deputy Carter proceeded to Pikyavit’s home to search for evidence of the

fight. When he and another officer arrived at the home, they discovered both the

front and back doors were locked. The officers used a plastic card to slip open

the lock on the front door and enter the home. Looking for signs of the fight as

described by Pikyavit, they entered the living room and kitchen, but did not find

                                         -3-
any evidence. Deputy Carter then opened a door leading from the main hallway.

Inside that room, he found ammunition in plain view. Carter realized that

Pikyavit, a former felon, could not legally possess the ammunition. Carter and

his fellow officer therefore left the house, obtained a warrant, and then returned

to search the rest of the home. During the subsequent search, they found

additional ammunition and a firearm.

      Based on this evidence, Pikyavit was found guilty of one count of being a

felon in possession of ammunition. On appeal, he challenges the admission of the

ammunition into evidence, claiming he did not consent to the search of his

home—let alone the room in which the ammunition was found. Pikyavit therefore

asks us to reverse the district court’s denial of his motion to suppress.

                                   II. Discussion

      A. Standard of Review

      Where the defendant raises a Fourth Amendment challenge to a search by

police, we review the district court’s factual findings for clear error, and the

ultimate reasonableness of the search de novo. United States v. Contreras, 506

F.3d 1031, 1035 (10th Cir. 2007); United States v. Cortez-Galaviz, 495 F.3d

1203, 1205 (10th Cir. 2007); United States v. Hunnicutt, 135 F.3d 1345, 1348

(10th Cir. 1998). In this case, we deal solely with a factual issue: whether the

officers stayed within the scope of the defendant’s consent to search.




                                         -4-
      We review the district court’s factual findings regarding the scope of a

defendant’s consent for clear error. United States v. Kimoana, 383 F.3d 1215,

1223 (10th Cir. 2004); United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.

1990); United States v. Espinosa, 782 F.2d 888, 892 (10th Cir. 1986) (citing

United States v. Sierra-Hernandez, 581 F.2d 760, 764 (9th Cir. 1978) (concluding

“whether or not the search remained within the boundaries of the consent” was “a

question of facts” reviewed for clear error)). “Whether 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.” Kimoana, 383 F.3d at 1223. 1



      1
          The First Circuit has alluded to a circuit split concerning the appropriate
standard of review for determining the scope of a defendant’s consent. See
United States v. Melendez, 301 F.3d 27, 32 (1st Cir. 2002) (citing United States v.
Turner, 169 F.3d 84, 87 n.4 (1st Cir. 1999)). We think any split is more illusory
than real. Every case notes the fact-intensive nature of the inquiry and the
deference given to the lower court’s determination. See United States v. Gandia,
424 F.3d 255, 265 (2d Cir. 2005); United States v. Rodriguez-Preciado, 399 F.3d
1118, 1131 (9th Cir. 2005); United States v. Kimoana, 383 F.3d 1215, 1223 (10th
Cir. 2004); United States v. Garrido-Santana, 360 F.3d 565, 570 (6th Cir. 2004);
United States v. Maldonado, 38 F.3d 936, 941–42 (7th Cir. 1994); United States
v. Martel-Martines, 988 F.2d 855, 858 (8th Cir. 1993); United States v. Blake,
888 F.2d 795, 800 (11th Cir. 1989). Only the Fifth Circuit has arguably
employed a standard other than clear error, see United States v. Stewart, 93 F.3d
189, 192 (5th Cir. 1996), but even that circuit has noted the importance of the
district court’s factual findings concerning the scope of consent. E.g., United
States v. Ibarra, 965 F.2d 1354, 1357 (5th Cir. 1992) (en banc) (7–7 decision)
(recognizing “the factual circumstances surrounding the consent are central to
determining the nature of the consent and how it would have been understood by
a reasonable person”).

                                          -5-
      Thus, in this case we will uphold the district court’s determination that the

police stayed within the scope of Pikyavit’s consent unless such determination is

clearly erroneous. A finding is clearly erroneous if, after reviewing all the

evidence, a court is left with “the definite and firm conviction that a mistake has

been made.” United States v. Martinez, 512 F.3d 1268, 1276 (10th Cir. 2008)

(quotation omitted). “Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” Anderson v.

Bessemer City, 470 U.S. 564, 574 (1985).

      Finally, in conducting our review of the district court’s decision, we look at

the facts in the light most favorable to the prevailing party below—in this case,

the government. See Kimoana, 383 F.3d at 1223 (“In ascertaining whether

officers exceeded the scope of consent, the court must view the facts in the light

most favorable to the government.”); United States v. Sanchez, 89 F.3d 715, 719

(10th Cir. 1996) (“We determine from the totality of the circumstances whether a

search remains within the boundaries of the consent given and view the evidence

in the light most favorable to the government.”).

      B. Consent to Search

      The Fourth Amendment protects individuals against unreasonable

governmental searches and seizures. A warrantless search of a defendant’s home

is unreasonable absent exigent circumstances or consent. Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973); see also Pena, 143 F.3d at 1366 (“[I]t is

                                         -6-
well settled that ‘one of the specifically established exceptions to the

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

pursuant to consent.’” (quoting Schneckloth, 412 U.S. at 219)).

      “When law enforcement officers rely upon consent to justify a warrantless

search, the scope of the consent determines the permissible scope of the search.”

United States v. Jackson, 381 F.3d 984, 988 (10th Cir. 2004) (quoting United

States v. Marquez, 337 F.3d 1203, 1207 (10th Cir. 2003)); see also United States

v. Anderson, 114 F.3d 1059, 1065 (10th Cir. 1997) (concluding that by giving

officer consent to “scout around” his vehicle, defendant consented to full search

of it, including underneath and around it); Espinosa, 782 F.2d at 892 (concluding

that by giving officer consent to “look through” his vehicle, defendant consented

to thorough search of entire vehicle).

      “We apply an objective reasonableness test to measure the scope of a

person’s consent,” and ask, “What would the typical reasonable person have

understood by the exchange between the officer and the suspect?” Anderson, 114

F.3d at 1065 (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)). Our task is

to determine “what the typical reasonable person would have understood to be the

scope of his or her consent under the circumstances.” Pena, 143 F.3d at 1367–68;

accord United States v. Rosborough, 366 F.3d 1145, 1150 (10th Cir. 2004)

(stating the test as “what a reasonable person would have understood to be the

scope and duration of his consent under the circumstances”).

                                          -7-
      In this case, Pikyavit argues the police exceeded the scope of his consent to

search his home in two ways. He claims his consent to search his home did not

extend (1) to a situation in which his home’s doors were locked, or (2) to any

rooms in his house besides the kitchen and living room.

      1. Consent to enter despite the locked doors

      The scope of the consent to search is “generally defined by its expressed

object,” looking to what “the typical reasonable person would have understood by

the exchange between the officer and the suspect.” Jimeno, 500 U.S. at 251. We

conclude a reasonable person would have understood Pikyavit’s words to the

police as giving consent to enter his home to search for exculpatory evidence

even if the doors were locked if entry could be made without property damage. A

reasonable person would have reached this understanding for a variety of reasons,

including: (1) Pikyavit did not expressly condition or otherwise limit the scope of

the search on finding the front door unlocked; (2) Pikyavit initiated the encounter

with police; and (3) Pikyavit wanted the search to commence quickly so evidence

he hoped police would find, including blood, hair, and other signs of a fight,

could be used to exonerate him.

      First, Pikyavit did not expressly condition the search of his home on the

police finding the doors unlocked. “[A] defendant’s failure to limit the scope of a

general authorization to search” is a factor indicating the search was within the

scope of consent. United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999).

                                         -8-
Pikyavit gave the officers general consent to search his home for evidence of the

fight. Without words of limitation or condition, the reasonable inference from

Pikyavit’s conversations with Jacobson and Carter was he had impliedly

consented to the search of his home even if the doors were locked. See People v.

Superior Court, 116 Cal. Rptr. 24, 26 (Cal. Ct. App. 1974) (finding defendant

impliedly consented to search of dresser drawer because “[w]ords may imply

consent as well as express it”); see also Wayne R. LaFave, Search and Seizure

§ 8.1(c) at 19 (4th ed. 2004) (noting the importance of taking into account “any

express or implied limitations or qualifications” on the scope of consent). This

factor is especially important given the urgency with which Pikyavit hoped the

search would be conducted and the result he hoped to obtain—exoneration.

      That the police used a card to open the front door does not vitiate the

generalized consent Pikyavit gave to search the home. Once a generalized

consent to search is given, the police can use reasonable means to enter the

location to be searched. See United States v. Maynes-Ortega, 857 F.2d 686,

688–89 (10th Cir. 1988) (upholding search of car’s trunk despite the defendant

claiming he did not have a trunk key and police using a key they found between

car’s front seats); see also United States v. Flowal, 234 F.3d 932, 934–35 (6th

Cir. 2000) (upholding search of defendant’s luggage despite police officers’ lack

of a key and need to open the luggage by other means), overruled on other

grounds by United States v. Leachman, 309 F.3d 377, 382 (6th Cir. 2002); United

                                         -9-
States v. Milian-Rodriguez, 759 F.2d 1558, 1563–64 (11th Cir. 1985) (upholding

search of closet even though police picked the closet’s lock); State v. Lash, 204

S.E.2d 563, 565 (N.C. Ct. App. 1974) (upholding search of vehicle’s trunk even

though police entered through back seat because trunk key was missing).

      The police had no obligation in the circumstances here to ask Pikyavit what

they should do if they found the door locked, as it was up to Pikyavit to limit or

condition the search if that was his intent. See Jimeno, 500 U.S. at 252 (“A

suspect may of course delimit as he chooses the scope of the search to which he

consents. But if his consent would reasonably be understood to extend to a

particular container, the Fourth Amendment provides no grounds for requiring a

more explicit authorization.”); United States v. West, 219 F.3d 1171, 1177 (10th

Cir. 2000) (“The scope of the consent to search is limited by the breadth of the

consent given.”); United States v. Kim, 27 F.3d 947, 957 (3d Cir. 1994) (“Of

course [defendant] could have limited his consent to certain items, but he had the

burden to express that limitation . . . .”). It was reasonable for the police to

conclude that Pikyavit would have wanted them to enter the home if it could be

done quickly and without damaging the premises. And, in fact, the police were

able to slip the lock without damaging either the lock or the door itself. 2

      2
        We are not presented with a situation where police had to kick in a door
or break a window to gain entry. See United States v. Osage, 235 F.3d 518, 520
(10th Cir. 2000) (observing a search may be “‘so invasive or destructive’ as to go
beyond the scope of the search”). In this case, slipping the lock was not
                                                                      (continued...)

                                          -10-
          Pikyavit’s subjective motivations are irrelevant. See Maynes-Ortega, 857

F.2d at 689. An objectively reasonable interpretation of Pikyavit’s consent is that

he gave the officers general consent to enter his home even if they found it

locked. The fact that either Pikyavit did not know whether the home was locked,

or whether his brother had locked the home to prevent unauthorized entry, does

not invalidate the officers’ reasonable understanding of what Pikyavit had asked

them to do.

      Second, it was reasonable for the officers to enter the home because

Pikyavit initiated the encounter and specifically requested they search inside the

home for exculpatory evidence. Detective Jacobson and Deputy Carter both

testified, and the district court found, Pikyavit asked them to search inside the

home for the evidence he wanted preserved. His goal was for police to see

evidence that would let him off the hook, a goal that was plainly furthered by the

police using reasonable means to open the locked door. The record indicates

Pikyavit was the sole occupant of the home, and entry did not compromise any

other privacy interests. Cf. Georgia v. Randolph, 547 U.S. 103 (2006) (focusing


      2
        (...continued)
unreasonable given the objective of the occupant, which was for the police to find
exculpatory evidence. Nor would it make any difference if Pikyavit secretly
hoped the police would be thwarted in entering the home. See Maynes-Ortega,
857 F.2d at 689 (describing as “somewhat preposterous” the argument that
“consent given by appellant [] to search [his] car was invalid because when he
gave it he thought that such consent would be futile since he did not have the
trunk key”).

                                         -11-
consent inquiry on societal understandings and norms regarding privacy

interests).

       The fact that Pikyavit lived alone but was in jail at the time and unavailable

to assist the officers bolsters their belief that reasonable entry—even slipping the

lock—was of the essence of Pikyavit’s consent. If Pikyavit had been present with

the officers, there is little doubt he would have opened the door for them. See

United States v. Prazak, 500 F.2d 1216, 1217 (9th Cir. 1974) (concluding that

when defendant is absent, test for scope of consent is “whether what the officer

did can be said to have been what [defendant] himself reasonably would have

done had he been able to act for himself”).

       The assurances Pikyavit gave the officers that the home would be open

further solidified their reasonable interpretation Pikyavit wanted them to enter.

Deputy Carter testified,

       [Pikyavit] stated the house would be opened. He said that his brother
       just went in there and his brother would have left it open because his
       brother told him that they needed to have us come out there, that he
       knew we would be coming. He told me that the house would be
       unlocked and it was hardly ever locked.

R., Vol. V at 21. Thus, the police had several reasons to believe the door would

be unlocked: Pikyavit’s brother had recently been in the house, and it was common

for Pikyavit’s house to be unlocked. They had no reason, however, to believe the

house would be locked or—further, that if the house were locked, they should not

enter it.

                                          -12-
      Finally, the urgency with which Pikyavit asked Jacobson and Carter to

search his home would have led a reasonable person to believe they had

permission to enter even if it were locked. Over one week had passed since the

night of the fight, during which time Pikyavit had been in jail. Pikyavit described

his house as a “crime scene” that he wanted properly and completely

“documented.” R., Vol V at 42–43. Because of the physical nature of the

evidence, the possibility it would be disturbed, destroyed, or otherwise

compromised was obvious to all parties involved.

      Pikyavit thus conveyed a strong sense of urgency to the officers. Pikyavit

initiated the encounter with Detective Jacobson by filling out an inmate request

form. On the form, Pikyavit included the acronym “ASAP.” R., Vol. V at 15. He

wanted to talk to the officers and to initiate the search for evidence as quickly as

possible.

      Moreover, both Jacobson and Carter testified Pikyavit was “insistent” they

search his home for evidence of the fight. Id. at 39, 19. For example, at the

suppression hearing Carter testified, “[Pikyavit] was quite insistent that we go out

there [to the home].” Id. at 19. He also described Pikyavit as “excited” during

their conversation, and “very, very insistent” that the investigation commence. Id.

at 20. In fact, Carter complied with Pikyavit’s request and immediately proceeded

to the home.




                                          -13-
      This is not to say a reasonable police officer, on encountering facts

materially different than those described by Pikyavit, would not reasonably

conclude a defendant’s consent to search was limited. We can imagine

circumstances where the property to be searched varied so widely from the

defendant’s description, for example, that a reasonable police officer would have

to conclude a search would exceed the scope of the consent. Here, the

circumstance of the locked door did not vary materially from what the police had

been told by Pikyavit. The police therefore had no obligation to obtain further

consent.

      In sum, based on the totality of the circumstances, the district court’s

determination that the police stayed within the scope of Pikyavit’s consent when

they entered his locked home was not clearly erroneous.

      2. Consent to search the entire house

      The second issue is whether the officers’ search of rooms off the main

hallway exceeded the scope of Pikyavit’s consent. We conclude a typical

reasonable person would have believed the consent extended to these rooms. “The

scope of a search is generally defined by its expressed object.” Jimeno, 500 U.S.

at 251. Although Pikyavit asserts he limited his consent to the living room and

kitchen, there is ample evidence he consented to a search of the entire home.

Indeed, the officers and Pikyavit agreed the express object of the search was to




                                         -14-
find evidence of a fight inside the home which would exculpate Pikyavit, evidence

that could be found in any room of the house.

      Detective Jacobson testified Pikyavit asked him to search inside the entire

home for the evidence he desired to be preserved. Jacobson said Pikyavit told him

“there was potentially a crime scene inside of the home being indicated by blood

inside of the house, a weapon of some kind on the outside.” R., Vol. V at 42.

Thus, any room in which blood indicative of a fight could be found was

encompassed within the scope of the consent.

      Deputy Carter’s testimony corroborated the conclusion Pikyavit consented to

a search of the home’s general living quarters. Carter testified that Pikyavit said

“his home was really a bad blood bath, bad crime scene, [and] said that the whole

house was turned up and the fight actually had taken place there.” Id. at 14–15

(emphasis added). Carter also explained that Pikyavit had said, “it was just a

complete disaster there. That there is blood covering the house. His hair was all

over the house. . . . That, you know, it was just really a bad scene.” Id. at 18

(emphasis added).

      Additionally, Deputy Carter testified he looked into rooms other than the

kitchen and living room because he thought Pikyavit may have relayed information

incorrectly from his brother. Pikyavit did not know exactly where the evidence was

located in the home, as he received the information from his brother. Jacobson

testified, “I recall him telling me that his brother had told him that there was blood


                                          -15-
in the kitchen.” Id. at 41. When the officers originally arrived at the scene, they

looked in the kitchen and living room, but found no evidence of a fight in either.

The furniture was not overturned and there was no blood or hair to be seen.

Finding no evidence of the fight in these two main rooms, the officers proceeded to

open doors off of the main room. Carter recalled his thinking: “[Pikyavit] may

have been not understanding the description exactly so we did open the door to the

first room right off—off of the living room area there.” R., Vol. II at 38–39. In

that first room, ammunition was found.

      The burden was on Pikyavit to limit the scope of the search if he desired to

do so. “[A] defendant’s failure to limit the scope of a general authorization to

search, and failure to object when the search exceeds what he later claims was a

more limited consent, is an indication the search was within the scope of consent.”

Gordon, 173 F.3d at 766 (citing cases). In this case, of course, Pikyavit was not

present at his home when the officers arrived to search. He therefore could not

have objected at that time if the officers were exceeding the scope of his consent.

But Pikyavit knew he would not be present, and the onus was on him to carefully

delimit the scope of the search. E.g., Jimeno, 500 U.S. at 252; Kim, 27 F.3d at 957.

      An objectively reasonable interpretation of Pikyavit’s statements was that he

wanted the police to find exculpatory evidence throughout the house. He did not

limit his search to any particular room or rooms. As the officers were looking for

evidence of a fight, it was reasonable to look into a room off of the main hallway.


                                         -16-
Cf. Kimoana, 383 F.3d at 1223 (“Consent to search for specific items includes

consent to search those areas or containers that might reasonably contain those

items.”); United States v. Santurio, 29 F.3d 550, 553 (10th Cir. 1994) (noting

“general consent to search includes closed containers within the vehicle”); United

States v. Elliott, 107 F.3d 810, 814–15 (10th Cir. 1997) (“The scope of a search is

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

consent given.” (internal marks omitted)). The expressed object of this search was

categorical—evidence of a fight—not spatial. The officers carefully limited the

scope of their search to this expressed object. They did not conduct a detailed

search of the adjacent rooms, but rather merely opened doors in search of evidence

of a fight. To do less would have subjected them to a claim of failure to thoroughly

look for exculpatory evidence. Ammunition was found in plain view in the first

room off the main hallway. When it appeared an expanded and more detailed

search was necessary, the officers appropriately sought and obtained a search

warrant.

                                         ***

      In sum, a reasonable officer would have understood Pikyavit to give consent

to (1) enter his home even if the doors were locked, and (2) search rooms other

than the kitchen and living room. Pikyavit said there was blood and other evidence

of the fight throughout the house—not just in the kitchen and living room.

Moreover, Pikyavit was relaying the information second-hand (from his brother), so


                                         -17-
it was reasonable to conclude Pikyavit did not know, or could not precisely

remember, the exact location of the evidence. The district court’s determination

that the officers stayed within the scope of Pikyavit’s consent to search was not

clearly erroneous.

                                  III. Conclusion

      For the reasons set forth above, we AFFIRM.




                                         -18-