United States v. Mares

           United States Court of Appeals
                      For the First Circuit


No. 04-1340

                     UNITED STATES OF AMERICA,

                             Appellee,

                                v.

                        CARLOS MARES, JR.,

                       Defendant, Appellant.



           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Michael A. Ponsor, U.S. District Judge]


                              Before

                        Boudin, Chief Judge,
                     Torruella, Circuit Judge,
                      and Dyk,* Circuit Judge.


     Thomas F. McGuire, on brief, for appellant.
     Virginia M. Vander Jagt, Assistant United States Attorney,
with whom Michael J. Sullivan, United States Attorney, were on
brief, for appellee.



                         November 3, 2005




*
    Of the Federal Circuit, sitting by designation.
            TORRUELLA,    Circuit   Judge.   Police   officers   arrested

Defendant Carlos Mares, Jr. ("Defendant"), for crimes related to

the sale of heroin.      Defendant moved to suppress evidence found in

his bedroom after his parents consented to a search of their house,

and the district court denied the motion. Defendant pleaded guilty

but reserved the right to appeal the denial of his motion to

suppress.    In this appeal, we consider whether the district court

properly denied his motion to suppress.        We affirm the district

court's decision.

                                     I.

            On November 20, 2001, the police department in Holyoke,

Massachusetts received a tip from an informant that drug dealers

were selling heroin in a public park and that a man named Carlos

was distributing heroin to the dealers from a house at 611 South

Summer Street in Holyoke. Based upon information received from the

informant, the police set up surveillance of the public park. They

observed what they believed to be drug transactions, and they

confirmed this by confronting a suspected buyer, who admitted to

purchasing heroin in the park.       The police followed the dealer to

611 South Summer Street and observed him enter the house and leave

a few minutes later.         The police confronted the dealer, who

consented to a search, which revealed 50 packets of heroin.

            The police then entered the house at 611 South Summer

Street without obtaining a search warrant. The officers spoke with


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Mrs. María Pérez ("Mrs. Pérez"), Defendant's mother, and Mr. Carlos

Mares, Sr. ("Mr. Mares"), Defendant's father.   Mrs. Pérez signed a

consent form to allow the officers to search the house.         The

officers entered Defendant's room and saw $1,840 in cash in plain

view.   An officer then went into the closet and felt a closed

knapsack.    The officer believed that weapons were inside, and he

opened the knapsack to find 750 packets of heroin and three

firearms.   The officers then arrested Defendant.

            The parties contest the events surrounding the police

entry into the house and the solicitation of Mrs. Pérez's consent.

According to Defendant, the police forcefully entered the house and

coerced Mrs. Pérez into signing the consent form. Defendant claims

that his sister answered the door and that the police pushed her

inside so that they could enter the house.      Defendant maintains

that the police then threatened Mrs. Pérez, saying that they would

arrest everyone in the house if she did not sign the form granting

consent to search the house, and that Mrs. Pérez signed the consent

form because of this threat.

            According to the Government, the officers entered the

house without objection, and the consent to search was freely

given. The Government states that the young woman who answered the

door stepped back, which the police took to be an implicit consent

to enter.   About six people, none of them Mrs. Pérez or Mr. Mares,

were in the living room making comments to the police such as


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"leave" and "you need a warrant."             The government asserts that an

officer yelled to the six people in the living room to be quiet or

else they would be arrested. The police explained the consent form

to Mr. Mares and Mrs. Pérez, and Mr. Mares explained the consent

form to Mrs. Pérez in Spanish.          Mrs. Pérez signed the form, and Mr.

Mares orally consented to the search.            Defendant never objected to

the consent granted by his parents.

            After the arrest, Mrs. Pérez and Mr. Mares drove to the

police station.         Mr. Mares gave a signed statement to police

describing what happened prior to the search: "The detectives asked

if they could search the house, and if I would sign a paper giving

permission to search.        My wife signed and gave a permission to

search."     Mrs. Pérez was present and did not object to the

statement signed by Mr. Mares.

            Defendant was charged in a three-count indictment. Count

I charged him with conspiracy to possess with intent to distribute

heroin,    Count   II   charged   him    with    possession   with   intent   to

distribute heroin, and Count III charged him with possession of a

firearm in furtherance of a drug trafficking crime.

            Defendant moved to suppress the evidence seized from his

bedroom, and the district court held a suppression hearing on

January 17, 2003.        Three witnesses testified for Defendant, and

four officers testified for the Government.            The court found that

the defense witnesses lacked credibility.            The court further found


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that the officers entered the house lawfully with the consent of

the person who answered the door and that Mrs. Pérez voluntarily

signed the consent form.   The court denied Defendant's motion to

suppress the evidence seized in his bedroom.

          Defendant pleaded guilty to Counts II and III of the

indictment but reserved his right to appeal the denial of his

motion to suppress.    As part of the agreement, the Government

dismissed Count I of the indictment.

                                  II.

          Defendant raises three arguments on appeal.     The first

argument is that the police officers did not have probable cause to

enter and search the apartment.    The second argument is that there

were no exigent circumstances to justify the warrantless entry and

search. The third argument is that the officers coerced Mrs. Pérez

into consenting to the search of the house.

          Defendant's first two arguments are simply irrelevant.

The court below found that "the officers entered the house lawfully

with the consent of someone whom they reasonably perceived to be an

occupant and remained inside with the implicit permission of Mrs.

Pérez."   The court also found that Mrs. Pérez and Mr. Mares

voluntarily consented to the search of their home.        Once such

consent has been freely given, the police do not need probable

cause or a search warrant to search the home.    See Schneckloth v.

Bustamonte, 412 U.S. 218, 227-28 (1973).     Since a search warrant


                                  -5-
was not necessary, the Government does not need to show any exigent

circumstances.     See Soldal v. Cook County, 506 U.S. 56, 65-66

(1992).

            Defendant's final argument is that the officers coerced

Mrs. Pérez into consenting to the search of her house.               "[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."    Schneckloth, 412 U.S. at 227.         The district court

considered the testimony of witnesses on behalf of both parties and

found that Mrs. Pérez's consent was voluntary.                 There is no

contention that Mrs. Pérez lacked authority to consent to the

search.     "[W]e must accept the district court's findings of fact

unless those findings are shown to be clearly erroneous."            United

States v. Laine, 270 F.3d 71, 74 (1st Cir. 2001).

            In support of his argument that the officers coerced Mrs.

Pérez into giving consent, Defendant merely restates his version of

the facts and makes no attempt to show that the district court's

findings of fact were clearly erroneous.        From our own examination

of the record, we find the district court's findings of fact to be

well supported. Mrs. Pérez, Mr. Mares, Benito Morales, and Michele

Mares testified on behalf of the Defendant.               The court amply

explained    why   it   discredited    the   testimony    of   the   defense

witnesses.     We will briefly enumerate here just a few of the


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district court's reasons: (1) Mrs. Pérez contradicted her own

testimony on the stand, and the logic of her story was faulty; (2)

Mr. Mares's testimony contradicted the statement he signed at the

police station after Defendant was arrested; (3) Benito Morales

"offered an incoherent story and retracted some of his just-

elicited narrative in favor of another version"; and (4) Michele

Mares's testimony was inconsistent with that of the other defense

witnesses and the police officers. Defendant does not even attempt

to discredit the testimony of the officers, and nothing in the

record gives us any reason to discredit the officers' testimony.

We therefore find no error in the factual findings of the district

court.

                              III.

          For the foregoing reasons, the district court's decision

is affirmed.

          Affirmed.




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