United States v. Ben Abdenbi

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 22 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 02-1435
SAMIR HEDI BEN ABDENBI,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 02-CR-180-B)

John T. Carlson, Office of the Federal Public Defender (Michael G. Katz, Federal
Public Defender, and Charles Szekely, Assistant Federal Public Defender, on the
briefs), Denver, Colorado, for Defendant - Appellant.

James C. Murphy, Assistant United States Attorney (John W. Suthers, United
States Attorney, with him on the brief), Denver, Colorado, for Plaintiff -
Appellee.

Before MURPHY , Circuit Judge, BRORBY , Senior Circuit Judge, and
McCONNELL , Circuit Judge.

MURPHY , Circuit Judge.
I. Introduction

Defendant-appellant Samir Hedi Ben Abdenbi was charged, inter alia , with

one count of fraud and misuse of a government identity document, in violation of

18 U.S.C. § 1546(a). He thereafter filed a motion to suppress all evidence

discovered as a result of statements he made to federal agents during a

warrantless search of his apartment. Abdenbi entered into a plea agreement

wherein he agreed to plead guilty but preserved his right to appeal the district

court’s ruling on his motion to suppress. The district court denied Abdenbi’s

suppression motion, concluding that the encounter between Abdenbi and three

federal agents which occurred in Abdenbi’s apartment was wholly consensual. 1

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the denial of

Abdenbi’s motion to suppress.

II. Factual Background

In February 2002, Kenneth Grubb, a special agent criminal investigator for

the Social Security Administration Office of the Inspector General, received

information from INS special agent Ross Godwin concerning a social security

application. Agent Grubb was told that an individual named Janis Habib Jlassi

1
The district court also ruled, in the alternative, that the agents’ questioning
was proper because they had a reasonable articulable suspicion that Abdenbi was
engaged in criminal activity. Because we hold, infra, that the encounter between
Abdenbi and the agents was consensual, a discussion of the district court’s
alternative ruling is unnecessary.

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had applied for a social security card using documents the INS suspected were

false. Based on his review of the information provided by the INS and his

subsequent investigation, Agent Grubb formed a belief that Jlassi was in the

United States illegally. To confirm this belief, Grubb concluded that he needed to

speak with Jlassi. Agent Godwin agreed to accompany Agent Grubb to the

address Jlassi had provided on his social security application. Agent Grubb

testified that his objective was to “speak to Mr. Jlassi and basically conduct an

interview with him and see if . . . he had submitted that application to Social

Security.”

On the morning of April 10, 2002, at approximately 6:15 a.m., Agents

Grubb and Godwin arrived at Jlassi’s apartment. They were accompanied by INS

special agent Jayson Mallard. The agents did not have either an arrest warrant for

Jlassi or a search warrant for the apartment. All three were dressed in street

clothes and each carried a gun concealed by his clothing. Agent Godwin knocked

on the apartment door and it was opened by Jlassi’s roommate, Amour Bejaoui.

The agents displayed their badges and asked Bejaoui if Jlassi was in the

apartment. Bejaoui confirmed that Jlassi was asleep in the apartment. Grubb

testified that the agents then “requested entry to the apartment so we could speak

with Mr. Jlassi.” Agent Mallard testified that Bejaoui opened the door, stepped

aside, and said, “Yes, come on in.”

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 The agents entered the apartment and moved down a hallway. Agent

Godwin entered Jlassi’s bedroom and Agent Grubb stopped at a second bedroom

occupied by defendant Abdenbi. Agent Mallard testified that he remained in the

hallway so he “could see inside both bedrooms and into the living room.”

At the suppression hearing, Agent Grubb testified that Abdenbi was in bed,

although it was unclear if he was asleep. He further testified that the bedroom

door was open; the lights in the bedroom were off and it was “mostly dark”; that

he stood in the doorway, not in the bedroom; and the only exit from the bedroom

was the door leading to the hallway. During his direct examination, Agent Grubb

testified that he identified himself as a police officer and “told [Abdenbi] that he

needed to come out and requested that he step out somewhere where I could talk

to him.” On cross-examination, Grubb clarified his testimony, stating that he

“asked [Abdenbi] to get out of the bedroom.” 2
Grubb further testified that he did

not physically touch Abdenbi, did not draw his weapon, and did not raise his

voice. Abdenbi did not refuse the agent’s request, but asked if he could put on

some clothes.

After Abdenbi put on a shirt and shorts, he accompanied Agent Grubb and

Mr. Bejaoui into the living room. Grubb testified that he then “waited for Agents

2
Consistent with Grubb’s testimony on cross-examination, the district court
found that Grubb “asked Mr. Abdenbi . . . to come from his bedroom out into the
living room.” Dist. Ct. Order (July 9, 2002) at 2 (emphasis added).

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Godwin and Mallard in the back room, and I just basically sat there with Mr.

Bejaoui and Mr. Ben Abdenbi awaiting the arrival of the other two agents because

at that point my case was concerning Mr. Jlassi.” Agent Godwin then entered the

living room and began questioning Abdenbi. Godwin asked Abdenbi biographical

questions and then questioned him regarding his right to be in the United States.

Abdenbi admitted that he was in the United States illegally. Godwin placed him

under arrest.

Agent Mallard’s testimony regarding the encounter with Abdenbi in his

apartment differed only slightly from Agent Grubb’s. On cross-examination,

Agent Mallard first testified that he entered Abdenbi’s bedroom and that Abdenbi

was awake. Mallard then stated, however, that he could not remember whether

his initial contact with Abdenbi occurred in the bedroom or the living room

although he did remember that Agent Godwin was in the room.

Q. When you talked to [Abdenbi] about his immigration status,
where was he?
A. Mr. Godwin was in the room. I believe I was in the room at
that point also because we were–he told us there was a
passport; I remember that.
Q. So you are not sure where you talked to him?
A. To be honest, initially the very first time I spoke to him, I
don’t remember exactly which room it was.

Defense counsel asked Mallard to clarify his testimony and the following

exchange took place:

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 Q. And that for officer safety Mr. Grubb asked Mr. Abdenbi to go
to the living room. He went to the living room along with Mr.
Bejaoui, and then subsequent to that Godwin and yourself
came to the living room after talking to Mr. Jlassi and then
talked to Mr. Abdenbi. Is that the sequence of events or not?
A. That sounds correct, yes.

At approximately 8:00 a.m., the agents left the apartment with Abdenbi and

Jlassi and proceeded to the INS office. Abdenbi signed a written waiver of his

Miranda rights and was questioned further. After additional investigation,

Abdenbi was charged with one count of using a Social Security account number

obtained with false information in violation of 42 U.S.C. § 408(a)(7)(A); one

count of fraud and misuse of a government identity document in violation of 18

U.S.C. § 1546(a); and one count of possession of a false identification document

in violation of 18 U.S.C. § 1028(a)(6).

Abdenbi filed a motion to suppress “any and all evidence seized as a result

of [his] illegal seizure and interrogation.” The district court denied the motion 3

and Abdenbi entered into a conditional plea agreement with the government,

reserving the right to appeal the district court’s ruling on his motion to suppress.

This appeal followed.

We admonish appellant’s counsel for failure to adhere to 10th Cir. R.
3

28.2(A)(1) which requires that he attach to appellant’s brief a copy of the district
court’s written order denying appellant’s suppression motion.

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III. Discussion

A. Standard of Review

This court reviews de novo , a district court’s determination of

reasonableness under the Fourth Amendment. United States v. Zabalza , 346 F.3d

1255, 1258 (10th Cir. 2003). In the course of that review, we consider the

evidence in the light most favorable to the government and will not overturn

factual findings unless they are clearly erroneous. Id. at 1257-58. The question

of whether consent to a warrantless search was given voluntarily is one of fact to

be determined from all the circumstances. Schneckloth v. Bustamonte , 412 U.S.

218, 249 (1973). The burden of proving voluntariness is borne by the

government. Id. at 248.

B. Initial Entry Into the Apartment

“The Fourth Amendment generally prohibits the warrantless entry of a

person’s home, whether to make an arrest or to search for specific objects. The

prohibition does not apply, however, 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.” Illinois v.

Rodriguez , 497 U.S. 177, 181 (1990) (citations omitted). Abdenbi does not

dispute that Bejaoui had authority to consent to the search of the apartment, but

instead argues that Bejaoui’s consent was not given voluntarily.

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 After examining the evidence presented at the hearing on the motion to

suppress, the district court concluded that there was “no evidence of force, threat

or coercion of any kind.” On appeal, Abdenbi relies on “empirical data” set forth

in several law review articles and an unpublished Ph.D. dissertation to support the

broad proposition that almost all encounters with law enforcement officers carry

an “air of menace” and implicit coercion. From this he argues that Bejaoui’s

consent was involuntary because no reasonable person ever feels free to decline

an officer’s request for permission to enter or search.

We cannot accept Abdenbi’s broad proposition because it would have the

practical effect of preventing all district courts in this circuit from ever finding

that an individual’s cooperation with law enforcement officials was voluntary.

The correct approach remains that articulated by the Supreme Court in

Schneckloth : “[T]he question whether a consent to a search was in fact

‘voluntary’ or was the product of duress or coercion, express or implied, is a

question of fact to be determined from the totality of all the circumstances.” 412

U.S. at 227.

Our review of the record convinces us the district court’s finding that

Bejaoui voluntarily consented to the search of the apartment is not clearly

erroneous. Abdenbi lists the following factors as support for his assertion that

Bejaoui’s consent was not given voluntarily: (1) the request was made by three

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armed officers; (2) the encounter occurred in the early morning hours in a

nonpublic place; and (3) the officers used aggressive language or tone of voice.

We first note that there is absolutely no record support for Abdenbi’s assertion

that the agents used threatening language or that Mr. Bejaoui knew they were

armed. Further, it is axiomatic that all requests to search a home or apartment are

made in nonpublic places.

The district court’s ruling was based on a consideration of the totality of

the circumstances. Those circumstances indicate that Mr. Bejaoui was contacted

at his home, early in the morning, by three federal agents dressed in civilian

clothes. The record clearly indicates there were no threats made by any of the

officers and no display of weapons or force. The agents testified that they arrived

early in the morning because they hoped to speak to Jlassi before he left for work.

The presence of three officers is neither inherently coercive nor dispositive to the

district court’s inquiry. The record is void of any indication that Bejaoui was

threatened or coerced in any way. Accordingly, we conclude that the district

court did not clearly err in finding that Bejaoui voluntarily consented to the

search of the apartment.

Although the dissent analyzes whether Bejaoui’s consent was broad enough

to permit the agents to search the entire apartment and whether Bejaoui had

authority to permit the agents to search Abdenbi’s bedroom, that analysis is

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misplaced because those theories have never been argued in this case. There is no

indication in the record that Abdenbi raised either argument in his suppression

motion. The statements of Abdenbi’s counsel cited by the dissent are insufficient

to preserve the issues and are anything but a plain argument that the search

exceeded the scope of Mr. Bejaoui’s consent. Dissent at 9. Counsel, instead, was

responding to a protective sweep argument made by the government. He then

returned to his main point: that a reasonable person in Abdenbi’s position would

not have felt free to terminate the encounter. Counsel’s illusory scope argument

was obviously not plain to the district court either, since the court responded to

counsel’s statements as follows:

Well, let me ask you this, because the ability to terminate an
encounter is also integral to any of these decisions. So what does the
Supreme Court ruling mean here?

The dissent does not indicate where in the record the authority issue was raised.

The district court’s order, therefore, predictably contains no discussion of either

the scope or the authority issue. The dissent concedes as much when it

acknowledges that, “[t]he district court, however, expressly concluded only that

Mr. Bejaoui consented ‘to the agents’ entrance.’” Dissent at 5. The well-settled

law of this circuit is that issues not raised in district court may not be raised for

the first time on appeal. O’Connor v. City & County of Denver , 894 F.2d 1210,

1214 (10th Cir. 1990).

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 Further, the issues were not raised in Abdenbi’s opening brief. Instead, his

argument focused solely on whether Bejaoui’s consent was given freely and

voluntarily. The failure to raise an issue in an opening brief waives that issue.

State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994).

Abdenbi does allude to the scope issue in his reply brief when he responds to an

issue raised by the government in its brief. Abdenbi’s argument is cursory, as

evidenced by his citation to a single, marginally relevant case. Dubbs v. Head

Start, Inc. , 336 F.3d 1194, 1202 n.4 (10th Cir. 2003) (concluding that even an

issue raised before the district court is waived if it is not adequately developed on

appeal). His reply brief contains absolutely no discussion of the dissent’s main

point: that Bejaoui lacked authority to consent to a search of the entire apartment.

Even assuming, as the dissent believes, that the scope issue “was given significant

attention at oral argument,” our precedent holds that issues may not be raised for

the first time at oral argument. Durham v. Xerox Corp. , 18 F.3d 836, 841 n.4

(10th Cir. 1994).

The dissent thus advocates reversal in this case based on two theories not

properly raised or briefed by Abdenbi and relies on Singelton v. Wulff , 428 U.S.

106, 121 (1976) and Sussman v. Patterson , 108 F.3d 1206, 1210 (10th Cir. 1997)

for the sweeping proposition that this court should exercise its discretion to

reverse on the basis of issues not raised below when a case presents important

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constitutional issues. Dissent at 10. Neither Singleton nor Sussman , however,

provides any support for the dissent’s approach. In Singleton , the Court reverse d

the judgment of the Court of Appeals, concluding that the appellate court’s

resolution of an issue not addressed by one of the parties because it had no

opportunity to do so, was “an unacceptable exercise of its appellate jurisdiction.”

428 U.S. at 119-21 (“[I]njustice was more likely to be caused than avoided by

deciding the issue without petitioner’s having had an opportunity to be heard.”).

In Sussman , the issue addressed by this court had “been briefed fully by the

parties and involve[d] a pure legal issue.” 108 F.3d at 1210. In the case at bar,

the issue has not been fully briefed by the parties and its resolution involves

questions of fact, not purely legal questions. United States v. Pena , 920 F.2d

1509, 1514 (10th Cir. 1990) (“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”). This court should neither raise sua sponte an argument not advanced

by a party either before the district court or on appeal, nor then advocate a

particular position and resolve the appeal based on that advocacy. Given

Abdenbi’s failure to properly raise, brief, and argue the scope and authority

issues, the dissent’s discussion and resolution of those issues is contrary to

established precedent. Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th

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Cir. 1992) (“[A] federal appellate court does not consider an issue not passed

upon below.” (quotation omitted)); Perry v. Woodward , 199 F.3d 1126, 1141

n.13 (10th Cir. 1999) (“This court . . . will not craft a party’s arguments for

him.”).

This case illustrates perfectly the soundness of that precedent. Because the

scope and authority issues were not presented to the district court, that court made

no factual findings necessary to resolve the issues raised sua sponte in the dissent.

Notwithstanding the dissent’s recognition that the scope of consent is a question

of fact, it nevertheless reaches its conclusion by substituting for the trial court as

a factfinder and assuming the facts in Abdenbi’s favor. Dissent at 5 (citing Pena ,

920 F.2d at 1514 for the proposition that the scope of consent involves questions

of fact). Thereafter, the dissent consistently treats Abdenbi as a co-tenant and

relies on cases dependant on co-tenancy status to resolve the authority issue. The

record, however, never establishes Abdenbi’s status in the apartment or addresses

whether Bejaoui and Abdenbi had mutual use of the entire apartment. United

States v. Rith , 164 F.3d 1323, 1329-30 (10th Cir. 1999) (“Mutual use of property

by virtue of joint access is a fact-intensive inquiry which requires findings by a

court that the third party entered the premises or room at will, without the consent

of the subject of the search.” (emphasis added)). Contrary to the dissent’s

interpretation of Rith , the case does not stand for the proposition that a co-tenant

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relationship creates a rebuttable presumption that neither co-tenant has control

over the property of the other. Dissent at 7-8 n.2. Rith held only that a co-tenant

relationship does not create a presumption of control. Abdenbi’s failure to raise

the authority issue in the district court undercuts any criticism of the

government’s failure to introduce evidence of mutual use.

The record does suggest that Abdenbi was not a permanent co-tenant.

Agent Grubb testified that Abdenbi “indicated he was staying there for a short

period with Mr. Jlassi.” Thus, a factual assumption that Abdenbi was a mere

short-term guest is far more justified than the factual assumption made by the

dissent. Any assumption, however, is inappropriate in a case like this where the

parties developed the record only on the issues they raised. As a consequence, we

do not make any such factual assumptions on the issues raised only by the dissent

or speculate on whether the agents’ actions exceeded the scope or authority of

Bejaoui’s consent. Instead, we adhere to our precedent and do not further address

the sua sponte issues in the dissent.

C. Encounter in Abdenbi’s Bedroom

Abdenbi next argues that he was seized, in violation of the Fourth

Amendment, when he was asked to move from his bedroom to the living room.

The government asserts that the encounter was not an unconstitutional seizure

because Abdenbi gave consent. Florida v. Bostick , 501 U.S. 429, 434 (1991)

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(“[A] seizure does not occur simply because a police officer approaches an

individual and asks a few questions. So long as a reasonable person would feel

free to disregard the police and go about his business, the encounter is consensual

and no reasonable suspicion is required.” (citation and quotation omitted)). We

conduct a de novo review of all the relevant circumstances to determine whether

an interaction between an individual and a law enforcement officer is a

consensual encounter that does not implicate the Fourth Amendment. United

States v. Little , 18 F.3d 1499, 1503 (10th Cir. 1994) (en banc). Relevant

circumstances include,

the threatening presence of several officers; the brandishing of a
weapon by an officer; 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 a person’s
personal effects . . .; a request to accompany the officer to the
station; interaction in a nonpublic place or a small, enclosed space;
and absence of other members of the public.

United States v. Sanchez , 89 F.3d 715, 718 (10th Cir. 1996). Another relevant

circumstance is whether the officers advised the individual that he was not

required to cooperate. Little , 18 F.3d at 1505. Because the inquiry involves an

analysis of all the circumstances, no one factor is dispositive. Id. at 1503-04.

Our review of the record has uncovered no support for Abdenbi’s assertion

that there was an “impressive display of police power taking place” in his

bedroom when he was asked to move to the living room. The district court found

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that only Agent Grubb entered Abdenbi’s bedroom, and that Agent Mallard and

Agent Godwin were both in Jlassi’s bedroom when Agent Grubb asked Abdenbi

to move to the living room. 4
The court further found that Abdenbi then left his

bedroom, accompanied by Grubb and Bejaoui, and sat in the living room. The

record demonstrates that these findings are amply supported by the testimony of

both Grubb and Mallard and are not clearly erroneous.

On direct examination, Grubb testified that he wanted Abdenbi to go to the

living room so he could speak to him “while Agents Mallard and Godwin were

speaking with Jlassi.” On cross-examination, Grubb further testified that he did

not enter Abdenbi’s bedroom, but stood in the doorway. Agent Mallard stated on

cross-examination that he stood in the hallway while Agent Godwin entered

Jlassi’s bedroom and Agent Grubb entered Abdenbi’s bedroom. Mallard then

testified about his questioning of Abdenbi. He stated that Agent Godwin was in

“the room” when he began the questioning but he did not specifically identify

“the room” as either the living room or the bedroom. When pressed by defense

4
Although the dissent asserts that it could not locate this finding in the
record, the district court’s order states as follows:
Once inside, Agents Mallard and Godwin went to Mr. Jlassi’s
bedroom, where they determined his illegal status. Special Agent
Grubb went with Mr. Bejaoui to a second bedroom and asked Mr.
Abdenbi, the third roommate and defendant in this case, to come
from his bedroom out into the living room. Mr. Abdenbi dressed and
went to the living room with Special Agent Grubb and Mr. Bejaoui.
Dist. Ct. Order (July 9, 2002) at 2.

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counsel, Mallard admitted that he could not remember whether he first spoke to

Abdenbi in the bedroom or the living room. However, Mallard then agreed that

defense counsel correctly summarized the sequence of events when he stated,

“[Abdenbi] went to the living room along with Mr. Bejaoui, and then subsequent

to that Godwin and yourself came to the living room after talking to Mr. Jlassi

and then talked to Mr. Abdenbi.”

The agents’ testimony undermines Abdenbi’s sensationalized description of

his bedroom as a scene of uncontrolled chaos. There is simply no record support

for Abdenbi’s assertion that shortly after Grubb entered his bedroom, Agents

Mallard and Godwin “barge[d] into the room,” blocking the only exit and

demanding to see his passport. Instead, the record supports the district court’s

conclusion that Agent Grubb was the only law enforcement officer who contacted

Abdenbi in his bedroom. Further uncontroverted evidence indicates that Agent

Grubb identified himself as a police officer, did not display his weapon, did not

raise his voice, did not physically touch Abdenbi, and was not retaining any of

Abdenbi’s possessions or documents. Abdenbi calmly got out of bed, put on

some clothing, and accompanied Grubb to the living room.

It cannot be contested that the encounter between Agent Grubb and

Abdenbi occurred very early in the morning, in a nonpublic place with no other

individuals present. The record further indicates that Agent Grubb did not advise

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Abdenbi that he was free to disregard the agent’s request. Although Grubb

appeared in the doorway of Abdenbi’s room in the early morning hours while

Abdenbi was still in bed, the encounter was calm and orderly with no show of

force or physical touching. Having reviewed all the circumstances surrounding

the encounter between Agent Grubb and Abdenbi, including the district court’s

specific factual findings combined with other uncontroverted evidence in the

record, we conclude that a reasonable person in Abdenbi’s position would have

felt free to terminate the encounter with Agent Grubb. Thus, the encounter was

consensual and it does not implicate the Fourth Amendment.

The dissent relies, in part, on its own findings of fact to reach the opposite

conclusion. For example, there is simply no record support for the dissent’s

finding that Abdenbi was “accosted” by the agents. Dissent at 15. Abdenbi did

not even testify at the suppression hearing; the only witnesses were agents Grubb

and Mallard. Hence, the agents’ descriptions of the encounter are uncontroverted

and the dissent improperly embellishes those descriptions without even the benefit

of Abdenbi’s testimony.

The dissent’s conclusion is also driven by its troubling determination that

an individual’s subjective state of mind informs the question of whether a

reasonable person would feel free to terminate an encounter with the police.

Dissent at 23. The subjective state of mind of either Grubb or Abdenbi is wholly

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irrelevant and plays no role in our evaluation of the circumstances surrounding

the encounter. Little , 18 F.3d at 1505 (“[T]he particular personal traits or

subjective state of mind of the defendant are irrelevant to the objective

‘reasonable person’ test.”); United States v. Zapata , 997 F.2d 751, 757 (10th Cir.

1993) (“[The defendant’s] own subjective attitudes toward the police encounter,

or any other of his particular personal attitudes, are irrelevant . . . .”). The

dissent’s approach seeks to transform the objective standard into a subjective

standard and must be firmly rejected. Further, in this case there is absolutely no

basis for the dissent to assume that Abdenbi, who did not testify, is an objectively

reasonable person such that his subjective state of mind is relevant to the

objective analysis.

D. Encounter in the Living Room

Finally, Abdenbi argues that he was seized after he moved from his

bedroom to the living room. Abdenbi, however, does not explain how the

circumstances surrounding the encounter in the living room differ in any relevant

way from the circumstances in his bedroom. Instead, his argument is based solely

on Agent Grubb’s subjective state of mind. Grubb testified that he, Bejaoui, and

Abdenbi waited in the living room while Agent Mallard and Agent Godwin

questioned Jlassi in Jlassi’s bedroom. Grubb stood just to the right of the

doorway to the living room; Abdenbi was seated in a chair and Bejaoui on a sofa.

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Grubb further testified that while the three waited, he made small talk to keep the

situation calm. Defense counsel then engaged Grubb in the following line of

questioning:

Q: [] You said that–the impression I get from your testimony is
they were free to go about their business. Go about their
business doing what?
A: Well, at that point we had two agents in the residence back in that
hallway, so I would not have let them mill around or approach that
area again.
Q: So they weren’t free to go anywhere but sit on that couch?
A: Well, it never came to that, sir, because they consensually sat there
and they never indicated they wanted to go anywhere.

Abdenbi argues that Grubb’s testimony constitutes a “candid admission” that the

encounter in the living room constituted a seizure. Abdenbi’s argument, however,

is foreclosed by binding circuit precedent. The correct framework within which

this court must view the encounter has been clearly set forth in our prior cases.

“A person is seized only when that person has an objective reason to believe he or

she is not free to end the conversation with the officer . . . .” United States v.

Hernandez , 93 F.3d 1493, 1498 (10th Cir. 1996) (emphasis added). Neither the

personal traits of the individual nor the subjective intentions of the individual or

the officer are relevant. Sanchez , 89 F.3d at 718; Little , 18 F.3d at 1505.

Because Abdenbi’s argument is based on the subjective intentions of Agent

Grubb, we must reject it.

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 The record demonstrates that Abdenbi was not advised that he could leave

the living room and the encounter took place in a nonpublic place. There were,

however, other individuals present. The encounter was calm; the agents did not

display their weapons, raise their voices, or speak in a commanding tone; and

there was no physical contact between Abdenbi and any of the agents. Based on a

consideration of all the relevant circumstances, we conclude that a reasonable

person in Abdenbi’s position would have felt free to terminate the encounter in

the living room. Consequently, the encounter in the living room was consensual

and not in violation of the Fourth Amendment.

The dissent repeats its theory that an individual’s subjective state of mind

informs the objective analysis of whether a reasonable person would feel free to

end a police encounter. Dissent at 24-25. Again, we must firmly reject this

attempt to allow subjective state of mind to drive the objective standard.

IV. Conclusion

The judgment of the United States District Court for the District of

Colorado denying Abdenbi’s suppression motion is affirmed .

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No. 02-1435, United States v. Ben Abdenbi

McConnell , J., dissenting.

Before daybreak on April 10, 2002, Mr. Samir Hedi Ben Abdenbi, a citizen

of Tunisia living (illegally, as we now know) in Denver, Colorado, was awakened

in his bedroom by agents of the United States government. They did not have a

warrant to enter or search the home. Nor did they have any reasonable suspicion

of wrongdoing by Mr. Ben Abdenbi. In fact, they were not even aware of Mr.

Ben Abdenbi’s existence. At least one, and possibly more, agents (depending on

which version of which agent’s testimony is to be believed), wearing plain clothes

and carrying concealed firearms, entered his bedroom, rousted Mr. Ben Abdenbi

out of bed in his underwear, and told him or asked him (depending on which

version of the agent’s testimony is to be believed) to leave his bedroom and go to

the living room. There he was instructed to sit and (according to the agent’s own

uncontradicted testimony) was not allowed to leave the room. He was questioned

regarding his immigration status, which was unlawful; he was then arrested,

charged, and ultimately convicted of fraud and misuse of a government identity

document.

The majority concludes the “encounter” was “wholly consensual.” Maj.

Op. 2.

One of Mr. Ben Abdenbi’s apartment mates, Mr. Amour Bejaoui,

apparently awakened by knocks on the door, admitted the agents so that they
could speak to a third apartment mate, Mr. Janis Habib Jlassi. Once inside the

door, the three armed agents proceeded, without seeking further permission, to

comb the entire apartment, including the bedroom where Mr. Ben Abdenbi was

sleeping, and to order all the inhabitants – not just Mr. Jlassi – into the living

room for questioning. According to the majority, Mr. Bejaoui’s admission of the

agents into the apartment to speak to Mr. Jlassi constituted “consent” to search

the entire apartment (Maj. Op. 9), Mr. Ben Abdenbi’s compliance with

instructions to come to the living room was a product of his own consent ( id. at

18), and the agent’s admission that the men were not free to leave the living room

reflected only the agent’s “subjective intentions” and not the objective reality of a

Fourth Amendment seizure ( id. at 20). I respectfully dissent as to each element of

the analysis.

1. Mr. Bejaoui’s Consent.

I do not believe Mr. Bejaoui’s act of admitting the three agents into the

apartment to speak to Mr. Jlassi can reasonably be construed as consent for them

to sweep through the apartment, enter all the bedrooms, and order every member

of the household out of bed for questioning.

In Florida v. Jimeno , 500 U.S. 248 (1991), the Supreme Court held that

when determining the scope of consent, courts should employ a standard of

objective reasonableness, asking how a reasonable person would have understood

-2-
the exchange between the officer and the suspect. Id. at 250-51. The Court held

that “[t]he scope of a search is generally defined by its expressed object.” Id. at

251. In that case, because the officer told the defendants that he would be

looking for narcotics in the car, it was objectively reasonable for the officer to

interpret consent as authorizing the search of a closed paper bag within the car.

Id. at 251-52.

Although in general we have employed fairly expansive interpretations of

officers’ search requests, see, e.g. , United States v. Gigley , 213 F.3d 509, 513,

515 (10th Cir. 2000) (consent to “look in” automobile included authorization to

look under rear seat of van); United States v. McRae , 81 F.3d 1528, 1537-38 (10th

Cir. 1996) (officer’s request to search the trunk of a car permitted lifting

carpeting in trunk), we have insisted that the words the officer uses in requesting

consent limit the permissible scope of the search. See, e.g. , United States. v.

Elliott , 107 F.3d 810, 814-15 (10th Cir. 1997) (officer’s request to look in trunk

to see how items were “packaged” did not include authorization to open and

inspect packages) (citing 3 Wayne R. LaFave, Search and Seizure § 8.1(c) at 620

(3d ed. 1996) (“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.”)); United States v. Leary , 846 F.2d

592, 599 (10th Cir. 1988) (assuming that consent to examine corporate records

-3-
related to export activities was given, this consent did not authorize examination

of financial records unrelated to export activities); United States v. Towns , 913

F.2d 434, 442 (7th Cir. 1990) (defendant’s allowing police to enter apartment to

provide identification did not authorize police to search through his belongings

and conduct an exploratory search of apartment for a seven-hour period).

On direct testimony, Agent Kenneth Grubb’s entire description of his

request for Mr. Bejaoui’s consent consisted of the following: “we requested entry

to the apartment so we could speak with Mr. Jlassi.” Suppression Hr’g Tr. 11, R.

vol. 2 (hereinafter cited as “Tr.”). On cross-examination, Agent Grubb

elaborated. After the agents asked Mr. Bejaoui whether Mr. Jlassi lived there and

received an affirmative answer, the following conversation ensued between Agent

Grubb and Mr. Bejaoui:

Q. What did you say?

A. I said, “Well, we need to talk to him. Can we come in?”

Q. And what did he say?

A. He allowed us to enter at that point.

Q. What did he say?

A. I don’t recall specifically, but he opened the door.

Q. Did he stand aside?

A. No. He opened the door farther, and yeah, I guess he did step aside.
I can’t recall whether he led the agents in or just fell in behind.

-4-
Tr. 33.

As this testimony indicates, Agent Grubb explicitly requested only to

“come in” to the apartment and to “speak with Mr. Jlassi.” A reasonable person

would not interpret this exchange as consent to search the entire apartment or to

roust the entire household out of bed. A reasonable person in Mr. Bejaoui’s shoes

(or bare feet, as the case may be) would interpret this exchange to mean that the

agents would enter the apartment and wait in the entranceway or common areas of

the apartment while Mr. Jlassi was summoned by Mr. Bejaoui – or at the most

intrusive, be escorted to Mr. Jlassi’s room.

Once inside the door, the agents made no further request for permission to

penetrate into the private areas of the apartment. According to Agent Grubb’s

testimony: “I believe Ross [Agent Godwin] asked him where Mr. Jlassi was, and I

don’t know that he received a response, but we walked through the back two

bedrooms.” Tr. 12.

The district court is entitled to broad deference in determining the scope of

consent. United States v. Pena , 920 F.2d 1509, 1514 (10th Cir. 1990) (“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.”). The district court, however,

expressly concluded only that Mr. Bejaoui consented “to the agents’ entrance,”

-5-
Dist. Ct. Op. 4-5, R. doc. 24 (hereinafter cited as “Dist. Ct. Op.”), which I do not

dispute. The question is how they got permission to roam about the apartment,

poking their heads into the bedrooms of sleeping (or resting) occupants. See 3

Wayne R. LaFave, Search and Seizure § 8.1(c) at 622 (3d ed. 1996) (consent to

enter a residence to conduct questioning does not permit a search).

Moreover, even assuming that Mr. Bejaoui’s admission of the agents into

the apartment could reasonably have been interpreted as consent to search the

entire apartment, I cannot agree that he had authority to permit the agents to

search the bedrooms of his apartment mates. It is one thing to hold – as the

district court did (Dist. Ct. Op. 4-5) – that Mr. Bejaoui had authority to consent to

the entry, or even that he had authority to invite the agents into the common areas

of the apartment. It is quite another to hold that one resident of a multi-tenant

apartment can consent to a search of another resident’s bedroom. 1

In United States v. Matlock , 415 U.S. 164, 170-73 (1974), the Supreme

Court recognized that co-tenants with common authority over the premises may

authorize police searches of the residence, and that third-party consent may be

valid against the nonconsenting party who is the ultimate subject of the search.

1
The majority speculates that Mr. Ben Abdenbi may not have been a
“permanent co-tenant,” based on an agent’s hearsay testimony that Mr. Ben
Abdenbi had said he was “staying there for a short period with Mr. Jlassi.” Maj.
Op. 13. The district court, however, described the men as “roommates” and
accepted the agents’ inference that they “resided together.” Dist. Ct. Op. 9.

-6-
However, neither the Supreme Court nor this Court has ever held that co-tenants

have plenary authority over their roommates’ private quarters. Indeed, United

States v. Rith , 164 F.3d 1323 (10th Cir. 1999), states a presumption to the

contrary. The issue in Rith was whether parents had authority to grant police

access to search the room of their teenage son. Id. at 1327-28. The Court held

that because parents were presumed to have authority over the entire house, their

consent was binding on their offspring. However, in the course of this discussion,

Rith contrasted the parent-child relationship with the arrangement typically found

among roommates, finding that:

Relationships which give rise to a presumption of
control of property include parent-child relationships and
husband-wife relationships. In contrast, a simple co-tenant
relationship does not create a presumption of control and
actual access would have to be shown. See United States v.
Duran , 957 F.2d 499, 505 (7th Cir. 1992) (“Two friends
inhabiting a two-bedroom apartment might reasonably expect
to maintain exclusive access to their respective bedrooms
without explicitly making this expectation clear to one
another.”); United States v. Heisman , 503 F.2d 1284, 1287 (8th
Cir. 1974) (although defendant’s room did not have a door or a
lock, co-tenant did not have authority to consent to a search of
defendant’s private areas).

Id. at 1330 (some citations omitted). 2

2
In addition to validating third-party consent when the co-tenant has
“control for most purposes” over the property, Rith raises the possibility of valid
consent when the co-tenant has “mutual use of the property by virtue of joint
access.” 164 F.3d at 1329. Rith, however, finds this second test to be a “fact-
(continued...)

-7-
 Albeit in dicta , but relying on holdings from other circuits, this Court in

Rith recognized a presumption that one roommate cannot grant consent for police

to search the bedroom or private quarters of his co-tenant. Id. Even assuming

that Mr. Bejaoui gave the agents authority to do more than come inside the

apartment, nothing in the record supports a finding that Mr. Bejaoui was

authorized to grant access to Mr. Ben Abdenbi’s room. Quite the contrary,

because the apartment was inhabited by several roommates, the presumption is

that Mr. Bejaoui’s consent was not a valid waiver of the privacy interest

maintained by Mr. Ben Abdenbi in his bedroom. See id.

If Mr. Bejaoui did not consent to the search of the private areas of the

apartment, or if he lacked authority to consent to the search of his apartment

2
(...continued)
intensive inquiry” which requires findings by a court that the third party may
enter the premises at will and without the consent of the subject of the search. Id.
at 1329-30. The majority silently flips the burden of proof on this issue, and
seems to suggest that an individual living in a multi-occupant apartment is
presumed not to be a co-tenant unless he proves otherwise. Maj. Op. 12. Rith
stands for the opposite presumption. See id. at 1330 (contrasting the presumptive
differences between familial and co-tenant living arrangements noting “[t]he
difference between a husband-wife or parent-child relationship and a co-tenant
relationship is that a husband-wife or parent-child relationship raises a
presumption about the parties’ reasonable expectations of privacy in relation to
each other in spaces typically perceived as private in the co-tenant relationship.”)
(emphasis added). Because there is no evidence in the record suggesting that Mr
Bejaoui had permission to enter Mr. Ben Abdenbi’s room at will, I rely on the
presumption that roommates maintain exclusive privacy interests in their
bedrooms. See id.

-8-
mate’s bedroom, then the encounter between Mr. Ben Abdenbi and the agents

should not have taken place. Accordingly, the evidence of Mr. Ben Abdenbi’s

statements to the agents should have been suppressed.

For the most part, the majority does not defend this aspect of the search on

the merits. I hope this will signal to law enforcement officers and lower courts

that, despite our affirmance of Mr. Ben Abdenbi’s conviction, this circuit does

not condone the brazen tactics used by the officers to gain entry to his bedroom.

The majority maintains that this Court should not reach the merits because the

issues regarding the scope of Mr. Bejaoui’s consent “have never been argued in

this case.” Maj. Op. 10. I beg to differ. In district court, Mr. Ben Abdenbi’s

counsel argued:

Yeah, it’s 6 o’clock in the morning. The police officers knock
on the door and they request permission and they acquiesce to
the entry. . . . It’s police officers with badges saying they want
to come in, not “We want to come in and search,” not “we
want to come in and do a protective sweep,” not “we want to
come in and gather everybody into the living room;” simply
“We want to come in.”
Mr. Bejaoui opens the door and they come in, and then it
is like once the door is opened, the flood gates are open and
we have this protective sweep going on . . .

Tr. 90. Counsel may not have uttered the word “scope” but counsel was plainly

arguing that consent to entry does not constitute consent to search the entire

apartment and to question everyone it in. Moreover, issues relating to Mr.

Bejaoui’s scope of consent were raised by the parties in this Court. In its brief to

-9-
this Court, the government relied on and cited United States v. Matlock , 415 U.S.

164 (1974), and Illinois v. Rodriguez , 497 U.S. 177 (1990), for the proposition

that co-tenants can grant consent against one another. Gov. Br. 8. Responding to

the government’s arguments, Mr. Ben Abdenbi argued that the agents “exceeded

the scope of Mr. Bejaoui’s consent” when they entered Mr. Ben Abdenbi’s

“bedroom and directed him to step into the living room for questioning.” Rep.

Br. 2. Finally, this issue was given significant attention at oral argument.

I therefore believe the issue is before us. In any event, even if counsel

could have raised the issue more emphatically, the constitutional principle

involved is important enough that we should exercise our discretion to address it.

See Singleton v. Wulff , 428 U.S. 106, 121 (1976) (“The matter of what questions

may be taken up and resolved for the first time on appeal is one left primarily to

the discretion of the courts of appeals.”); Sussman v. Patterson, 108 F.3d 1206,

1210 (10th Cir. 1997) (court of appeals may use its discretion to reverse on the

basis of issue not raised below particularly when it is a questions of law that

raises important public policy concerns or when ignoring the claim would result

in a miscarriage of justice).

2. Mr. Ben Abdenbi’s “Consent”

That brings us to the second stage in this remarkable consensual search: the

encounter between Mr. Ben Abdenbi and the agents in his bedroom, as Mr. Ben

-10-
Abdenbi was lying in bed. Relying on Florida v. Bostick, 501 U.S. 429 (1991),

and our opinion in United State v. Little, 18 F.3d 1499 (10th Cir. 1994) (en banc),

the majority finds that Mr. Ben Abdenbi was not “seized” because a reasonable

person in Mr. Ben Abdenbi’s position would have felt free to terminate the

encounter. Maj. Op. 18. In light of the circumstances under which police

encountered Mr. Ben Abdenbi, I find that conclusion most unrealistic.

It bears mention at the outset that the district court did not make a specific

factual finding that Mr. Ben Abdenbi consented to leave his bedroom with the

agent. After addressing the agent’s initial entrance into the apartment, the district

court focused mainly on the subsequent questioning in the living room, rather

than concentrate on whether Mr. Ben Abdenbi voluntarily consented to leave his

-11-
bed and accompany the agents to the living room. 3 Thus, there is no explicit

factual finding to which we might have to defer.

Bostick and Little trace their lineage to the Supreme Court’s holding in

Terry v. Ohio, 392 U.S. 1 (1968). Terry held that not all encounters between

citizens and police are considered “seizures” within the meaning of the Fourth

Amendment. Id. at 19 n.16. Rather, the relevant factors are whether by means of

physical force or show of authority the officer restrained the liberty of the

suspect. Id. In Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion) the

Supreme Court reaffirmed this understanding, stating “law enforcement officers

do not violate the Fourth Amendment by merely approaching an individual on the

3
The relevant passage of the district court’s opinion reads as follows:
Here, the three agents dressed in street clothing. They entered the
premises with Mr. Bejaoui’s permission. They did not show or brandish
their weapons. No evidence suggests that any agent became physical or
used an aggressive tone of voice. The officers did not retain the
roommates’ possessions. The questioning occurred in a common area with
the three agents and the three roommates. And, though the encounter
occurred in Mr. Abdenbi’s residence, the agents were in the premises with
Mr. Bejaoui’s consent and Mr. Abdenbi voiced no objection. Accordingly,
I find and conclude that a reasonable person would have felt free to
terminate the encounter with the agents. Hence, the agents did not detain
Mr. Abdenbi at the time of Mr. Abdenbi’s initial confession in the
apartment.
Dist. Ct. Op. 6 (emphasis added). The italicized portions make clear that the
district court was discussing whether the questioning of Mr. Ben Abdenbi in the
living room was consensual – not whether his decision to get out of bed and
accompany the agents to the living room was consensual.

-12-
street or in another public place, [or] by asking him if he is willing to answer

some questions.”

Of course, Mr. Ben Abdenbi’s bedroom was not a public place. To be sure,

the Supreme Court has interpreted Royer’s “public place” language to extend to

some locations that are not accessible to members of the public at large; but if the

concept of “public place” extends to a bedroom, it is no limitation at all. In INS

v. Delgado, 466 U.S. 210 (1984), the Court upheld the constitutionality of

questioning by officers stationed at all exits of a factory even though it was not a

“public” space in the sense that members of the general public could freely gain

access to it. Id. at 217 n.5. But a factory, even if not open to the general public,

falls within the principle of Terry and Royer because it is a place where many

people come and go, without much sense of privacy.

Bostick extended Royer and Delgado a step further: to an intercity bus

where officers questioned passengers about drug transportation. 501 U.S. at 435-

37. The Court held that there was no per se rule holding that persons confronted

by police on a bus were seized, even though the police presence on the bus

significantly restricted their movement. Id.; see Little, 18 F.3d at 1503. Like the

factory in Delgado, a public bus is a place in which strangers interact without

much expectation of privacy. Bostick teaches that the proper analysis requires an

examination of the totality of the circumstances to determine whether a

-13-
“reasonable person would feel free to decline the officers’ requests or otherwise

terminate the encounter” – not whether the defendant could have physically

walked away from the police. Id. at 436.

Following Bostick, this Court, sitting en banc, applied these principles to

the case of an officer who questioned a passenger seated in a semi-private

roomette of a train. Little, 18 F.3d at 1501. Like Bostick, Little refused to find

the physical layout of the space in which the officer questioned the defendant to

be the sole determinant of the search’s constitutionality. Rather, Little examined

whether the encounter was consensual in light of the totality of the circumstances.

Id. at 1506. 4

In analyzing the consensual nature of the encounter in this case, the

majority recounts that the agents did not raise their voices, display their weapons,

or physically touch Mr. Ben Abdenbi. The opinion further emphasizes Mr. Ben

Abdenbi’s acquiescence to police requests and the relative calm in the apartment

on the morning of the encounter. These are legitimate points to consider. But the

element of surprise, the show of authority, the absence of any explanation, the

Notably, neither Bostick nor Little held that the search at issue was
4

constitutional; each case was remanded for further fact-finding. These cases
simply rejected a rule that physical constriction caused by the environment rather
than the police automatically transformed otherwise consensual encounters into
“seizures.” See Bostick, 501 U.S. at 437; Little, 18 F.3d at 1506. But see Little,
18 F.3d at 1508-09 (Logan, J., dissenting) (noting that lower courts have read
Bostick as an affirmative holding that the defendant was not seized).

-14-
words used by the agents, the time of day, and the non-public setting make the

encounter seem far more threatening and coercive than the majority is willing to

recognize. Mr. Ben Abdenbi was in a particularly vulnerable state, as he lay in

his bed in his underwear, confronting the unexplained presence of law

enforcement in his room.

I begin with the last point: location. The most salient distinction between

the present case and the line stretching from Terry to Little is that this encounter

did not occur on a plane, train, or automobile, but rather in Mr. Ben Abdenbi’s

house – or more accurately, in his bedroom. Unlike the defendants in any of the

cases in the Terry line, Mr. Ben Abdenbi was accosted 5 by police in the far

recesses of his “zone of privacy.” Payton v. New York, 445 U.S. 573, 589 (1980).

There was no other location to which he could retreat (and remember, at this

point, there was not the slightest basis for suspicion that Mr. Ben Abdenbi had

engaged in any wrongdoing). Tr. 42-43.

5
The majority suggests that I rely on my “own findings of fact” in
questioning whether Mr. Ben Abdenbi consented to his seizure, Maj. Op. 17, but
the majority’s only example of “fact-finding” is my use of the verb, “accost,” to
describe the police officers’ action in entering Mr. Ben Abdenbi’s bedroom and
rousting him out of bed. I think it is an eminently fair use of the term. See
Webster’s Third New International Dictionary 12 (1976) (defining “accost” as “1:
to approach and speak to,” and offering as an example the sentence “they were
accosted by the immigration officials”).

-15-
 The Supreme Court has stressed the special character of the home for

purposes of interpreting Fourth Amendment protections:

The Fourth Amendment protects the individual’s privacy in a
variety of settings. In none is the zone of privacy more clearly
defined than when bounded by the unambiguous physical
dimensions of an individual’s home – a zone that finds its
roots in clear and specific constitutional terms: “The right of
the people to be secure in their . . . houses . . . shall not be
violated.” That language unequivocally establishes the
proposition that “[a]t the very core [of the Fourth Amendment]
stands the right of a man to retreat into his own home and
there be free from unreasonable governmental intrusion.”
Silverman v. United States, 365 U.S. 505, 511 [1961]. In
terms that apply equally to seizures of property and to seizures
of persons, the Fourth Amendment has drawn a firm line at the
entrance to the house.

Payton, 445 U.S. at 589-90; see also United States v. Flowers, 336 F.3d 1222,

1226 (10th Cir. 2003) (quoting this language from Payton). While these cases

addressed Fourth Amendment protections against unwarranted entry into the home

(which we are assuming, arguendo, were waived by Mr. Bejaoui’s consent), their

reasoning is relevant to evaluating the totality of the circumstances under Bostick.

See United States v. Jerez, 108 F.3d 684, 690 (7th Cir. 1997) (reversing a district

court’s denial of a suppression motion because it “failed to consider adequately

two factors: the place and the time of the encounter”). Applying the Bostick

standard under somewhat similar circumstances, the Seventh Circuit explained:

Because our law and legal traditions long have recognized the
special vulnerability of those awakened at night by a police
intrusion at their dwelling place, our Fourth Amendment

-16-
 jurisprudence counsels that, when a knock at the door comes at
the dead of night, the nature and effect of the intrusion into the
privacy of the dwelling place must be examined with the
greatest of caution.

Id. In the past, this Court has refused to find consent where the consent was the

product of a confused reaction of a sleeping person to a warrantless intrusion into

his bedroom in the dark of night. Harless v. Turner, 456 F.2d 1337, 1338-39

(10th Cir. 1972).

The majority relies on our holding in Little. The en banc opinion in Little,

however, contrasted the degree of privacy afforded to an occupant of a train

roomette with the privacy expectations legitimately held within the home. See

Little, 18 F.3d at 1504 (citing United States v. Colyer, 878 F.2d 469, 475-76 (D.C.

Cir. 1989) (in the context of a luggage search, rejecting defendant’s argument that

an Amtrak roomette is like a hotel room or apartment, finding that “[w]hile an

Amtrak sleeper car may in some ways resemble a residence, it enjoys no such

status in the law”); United States v. Tartaglia, 864 F.2d 837, 841 (D.C. Cir. 1989)

(in the context of a warrantless search, noting that “a passenger traveling in a

train roomette has a lesser expectation of privacy than a person in his home”);

United States v. Whitehead, 849 F.2d 849, 853 (4th Cir. 1988) (“[W]e reject the

contention that a passenger train sleeping compartment is a ‘temporary home’ for

fourth amendment purposes . . . . [The amount of privacy one can reasonably

-17-
expect in a train] is less than the reasonable expectations that individuals

rightfully possess in their homes or their hotel rooms.”)).

I recognize that in Little we distinguished between the heightened

expectation of privacy that one maintains in a particular location, which is

relevant to determining the constitutionality of a search of that location, and the

question whether a reasonable citizen believes that he can voluntarily terminate

the encounter with police, which is the dispositive inquiry in assessing the

constitutionality of questioning premised on the subject’s consent. Little, 18 F.3d

at 1505. Because the Fourth Amendment “seizure” inquiry is dependent on the

consensual nature of the interaction, Little held that the expectation of privacy in

the location of the police-citizen encounter is of “limited relevance to the

question of whether a reasonable person would believe that he or she is unable to

terminate the encounter.” Id.

However, because this case is substantially different from the line of

precedents stemming from Terry and Royer, under the facts before us, I find the

location of the encounter significant. While the bus, the train, and the factory are

undeniably more secluded than a street corner, they are nevertheless social spaces

where citizens routinely encounter strangers. Even within a semi-private train

roomette, a passenger will likely confront the ticket collector, the snack vendor,

and perhaps other passengers milling about the train. Aware of this environment,

-18-
the passenger conforms his behavior to the expectations prevailing within the

public sphere. By contrast, when one retires to one’s own bed for the night, one’s

guard is naturally let down. Any confrontation with the outside world will occur

only after one’s morning routine is completed and the security of the home is

abandoned. The “unambiguous physical dimensions of an individual’s home,”

Payton, 445 U.S. at 589, provide the relevant point of transition from the

uninhibited private mode to the guarded public one. Indeed, the special status of

the home is reflected in the very language of the Fourth Amendment, which

guarantees the right of the people to be “secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures.” U.S. Const. Amend. IV.

Viewed from this perspective, the location of the agent’s encounter with Mr. Ben

Abdenbi is an important part of the totality of the evidence.

In addition to the setting, other factors support the conclusion that a

reasonable person in Mr. Ben Abdenbi’s situation would not have felt at liberty to

ignore the police. The relevant facts are as follows: Agents entered Mr. Ben

Abdenbi’s room in the pre-dawn hours. There they found him mostly undressed

and in his bed, with the lights off. It is undisputed that at least one, and possibly

more, agents entered the room and requested that Mr. Ben Abdenbi come into the

-19-
living room for questioning. 6 This activity was taking place as Mr.

6
The majority finds that “the record supports the district court’s conclusion
that Agent Grubb was the only law enforcement officer who contacted Abdenbi in
his bedroom,” and criticizes Appellant for his “sensationalized description” of a
situation involving entry and questioning by three officers. Maj. Op. 17. I
suppose it depends on which versions of which agent’s testimony one chooses to
believe. The testimony is admittedly confusing. At one point, Agent Grubb
testified that he was by himself with Mr. Ben Abdenbi and Mr. Bejaoui at the
time Mr. Ben Abdenbi agreed to come to the living room. Tr. 15. Agent Jayson
Mallard, however, testified as follows:

Q. And you never entered the bedroom, either bedroom?
A. Yes, I did. Initially, no, I did not. I remained in the hallway so that I
could see both the living room and the bedrooms.
Q. Mr. Godwin entered Mr. Jlassi’s bedroom?
A. I believe so, yes.
Q. And Mr. Grubb entered Mr. Abdenbi’s bedroom?
A. I believe so, yes.
Q. Was Mr. Abdenbi sleeping?
A. I am not aware if he was asleep at the time we walked in because we
spoke to him, so he was awake by the time I was in the room.
Q. Was he still in the room when you entered the room, he being
Abdenbi, the defendant?
A. Yes.

Tr. 72. This clearly indicates that Agent Mallard remembered that he was present
with Agent Grubb when Agent Grubb spoke to Mr. Ben Abdenbi. Later, as the
majority notes, Agent Mallard changed his testimony; he could not remember
what room he was in when he spoke to Mr. Ben Abdenbi. Tr. 73.
Appellant cites to another page in the transcript, Tr. 63, where Agent
Mallard states that Agent Godwin was in Mr. Ben Abdenbi’s bedroom, which he
understandably interprets as meaning that all three agents were present.
Appellant’s Br. 18. It seems more likely that this reference was a slip of the
tongue, since it appears that Agent Godwin was involved with Mr. Jlassi in a
different room (Tr. 14, 17, 73-74), and it is unlikely that they left Mr. Jlassi by
himself. Nonetheless, I cannot join the majority’s pejorative description of
Appellant’s interpretation as “sensationalized,” since it is a fair (though I think
(continued...)

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Jlassi, Mr. Ben Abdenbi’s roommate, was arrested and escorted to the living

room. Nothing in the record indicates that Mr. Ben Abendbi was aware, or

informed by the agents, that their presence in his bedroom was based on Mr.

Bejaoui’s consent. Cf. Rith, 164 F.3d at 1327 (teenaged defendant informed by

police that his parents had given police consent to search the house). Further,

police did not inform him in any manner that he was not required to cooperate

with them or answer their demands. Cf. Bostick, 501 U.S. at 432 (police

specifically informed defendant that he could refuse consent); Little, 18 F.3d at

1502 (officer informed defendant that she could refuse his request to search her

hand luggage). Under the totality of these circumstances, the pre-dawn invasion

of one’s bedroom by uninvited government agents conveys an undeniable sense of

6
(...continued)
inaccurate) reading of the record, on a point on which there was no district court
finding of fact.
The majority states that “the district court found that only Agent Grubb
entered Abdenbi’s bedroom” (Maj. Op. 16), but I cannot locate such a finding in
the district court’s opinion. Nonetheless, because an appellate court must
consider the evidence adduced at the suppression hearing in the light most
favorable to the government, United States v. Rios, 611 F.2d 1335, 1344 (10th
Cir. 1979), I accept the conclusion that only one agent was present in Mr. Ben
Abdenbi’s bedroom.
Ultimately, I do not think the number of agents present in Mr. Ben
Abdenbi’s bedroom is dispositive, though it is one factor under Little. Even if
there was only one agent, the totality of the circumstances does not support a
finding of voluntary consent. Notably, the district court made no finding that Mr.
Ben Abdenbi voluntarily consented to leave his bedroom with the agents. The
district court found only that, once he was in the living room, Mr. Ben Abdenbi
voluntarily consented to questioning. See note 3 above.

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urgency, immediacy, and authority. I cannot understand the majority’s assertion

that a reasonable person would have felt that he could ignore the agents’ request.

Indeed, it is not clear from the record that the agents even employed the

vocabulary – let alone the reality – of consent. On direct testimony, Agent Grubb

stated that he addressed Mr. Ben Abdenbi while he was still in bed, as follows: “I

identified myself as the police and told him that he needed to come out and

requested that he step out somewhere where I could talk to him.” Tr. 14

(emphasis added). For a law enforcement officer who has suddenly appeared at

one’s bedside with no explanation to tell the occupant that “he needed to come

out” is not my idea of requesting consent. It sounds more like an order. To be

sure, when pressed on cross-examination, Agent Grubb revised his testimony to

state, “I requested that he exit the bedroom.” Id. at 36. The most charitable

interpretation is that not even the agent involved was quite sure whether he was

making a request or a demand. When asked whether Mr. Ben Abdenbi had been

given any choice, Agent Grubb answered: “I don’t know that he didn’t have a

choice.” Id. at 37. That is not exactly a ringing affirmation.

Nor did Mr. Ben Abdenbi say anything in response which could be

construed as consent. He simply complied with the agent’s instructions. Thus,

the words exchanged between the agent and the awakened man do little to dispel

the otherwise coercive atmosphere of this encounter.

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 It is clear from the undisputed facts that Mr. Ben Abdenbi did not consider

himself at liberty during this encounter. According to Agent Grubb’s testimony,

the half-naked man asked Agent Grubb for permission to put on some clothes

before leaving his bedroom. An individual who considers himself free to

disregard police instructions would not find it necessary to ask permission to put

his clothes on. It is revealing, as well, that Agent Grubb did not respond by

telling Mr. Ben Abdendi that he did not need his permission; instead, he gave it.

To be sure, this is evidence only of Mr. Ben Abdendi’s subjective understanding

of the situation, and possibly that of Agent Grubb as well; but as part of the

totality of the circumstances, the exchange is telling. The ultimate legal question

is whether the individual had an “objective reason to believe he or she [was] not

free to end the conversation with the officer,” United States v. Hernandez, 93

F.3d 1493, 1498 (10th Cir. 1996), but surely the assessments of the officer and

the individual, on the scene, are a part of the evidence. Mr. Ben Abdenbi and

Agent Grubb were, after all, there; they are presumably reasonable; their

contemporaneous evaluation of the totality of the circumstances is worthy of our

consideration.

The government argues that “such a modest request” to leave his bedroom

and accompany the agents to the living room was so “minimal” an “infringement

on individual liberty” as to be akin to “an officer asking a person to move to a

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safe place to talk on the street.” Appellee’s Br. 18. I doubt many ordinary

people would share the government’s equanimity about such an encounter.

3. Questioning in the Living Room.

Mr. Ben Abdenbi and Mr. Bejaoui were escorted to the living room. At the

agents’ request, they sat on a couch and a chair, while Agent Grubb stood by the

exit door. According to Agent Grubb, the police would not have permitted the

men to “mill around” the apartment or to approach the bedroom area. Tr. 40.

This was a clear admission that Mr. Ben Abdenbi and Mr. Bejaoui had been

seized, within the meaning of the Fourth Amendment. They were not free to

terminate the encounter and go about their business. 7 This was their apartment; to

be confined to their living room and not allowed to “mill around” or return to

their bedrooms is a restriction on their freedom. See Michigan v. Summers, 452

U.S. 692, 705 (1981) (person who is not allowed to leave his home while police

7
To be sure, after making this statement, Agent Grubb immediately
qualified his testimony:

Q. So they weren’t free to go anywhere but sit on that couch?

A: Well, it never came to that, sir, because they consensually sat there
and they never indicated they wanted to go anywhere.

Tr. 40. This statement, however, is nothing more than Agent Grubb’s subjective
impression of Mr. Ben Abdenbi’s and Mr. Bejaoui’s subjective state of mind.
That the men were docile might indicate consent; it could just as easily indicate
they were scared, or thought they had no choice in the matter.

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are conducting a search is “seized” for Fourth Amendment purposes); see also

United States v. Bennett, 329 F.3d 769, 773 (10th Cir. 2003) (same).

The district court explicitly found that “a reasonable person would have felt

free to terminate the encounter with the agents” at this point. Dist. Ct. Op. 6.

The district court made no mention, however, of Agent Grubb’s undisputed

testimony that the two men were not free to “mill around” or to approach the

bedroom area. In light of this undisputed evidence, the conclusion that the men

were not seized is clearly erroneous.

The majority does acknowledge Agent Grubb’s testimony. Maj. Op. 20.

But the majority disregards it on the ground that the evidence revealed only “the

subjective intentions of Agent Grubb,” which does not establish any objective

reason that a person in Mr. Ben Abdenbi’s situation would not feel free to go. Id.

I think the evidence is more than that. Agent Grubb was not testifying about his

subjective intentions; he was testifying about whether Mr. Ben Abdenbi and Mr.

Bejaoui were free to move about the apartment. He said they were not. He was

in an excellent position to know, since he was the one with the badge and the gun,

standing next to the exit door. It defies common sense and ordinary experience to

hold that no seizure has taken place when the police officer admits that the

individuals were denied the right to “mill about” their own home.

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 4. Reasonable Suspicion

Finally, the district court held that the questioning of Mr. Ben Abdenbi in

the living room was supported by reasonable and articulable suspicion, based on

the following:

The agents knew of Mr. Jlassi’s fraudulent I-20 ID and letter.
They knew of Mr. Jlassi’s fraudulently obtained social security
card. Upon lawful entry, the agents noticed that Mr. Abdenbi
had few clothes but was apparently sleeping there. According
to their experience and training, the agents knew that illegal
aliens often resided together, sharing access to false
documentation. Finally, the three roommates appeared to the
agents to be foreigners and have Arab or Middle Eastern
accents.

Dist. Ct. Op. 9.

The majority does not reach the issue of reasonable suspicion, because it

concludes the encounter was “wholly consensual.” I do not need to reach the

issue because the large part of the information on which the district court relied

(other than that pertaining to Mr. Jlassi) was obtained as a result of what I have

concluded to be an unconstitutional and unconsented-to search of the private

areas of the apartment. It is undisputed that, when they arrived at the apartment

on the morning of April 10, 2002, the agents knew nothing of Mr. Ben Abdenbi.

Tr. 42-43. Had they conducted their investigation within the terms of Mr.

Bejaoui’s consent, they would never have encountered Mr. Ben Abdenbi, and

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would never have learned about how few clothes he had, where he was sleeping,

his foreign appearance, or his Arab or Middle Eastern accent.

For the foregoing reasons, I respectfully dissent.

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