United States v. Vargas ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 28, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 17-3029
v. (D.C. No. 6:13-CR-10193-JTM-1)
(D. Kan.)
JUAN VARGAS,
Defendant-Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.
_________________________________
This appeal grew out of a car search. The search yielded
methamphetamine concealed in a spare tire in Mr. Juan Vargas’s trunk. Mr.
Vargas moved to suppress evidence of the methamphetamine on the ground
that law enforcement officers had exceeded the scope of consent when
searching the contents of the spare tire. The district court denied the
motion, finding that the officers obtained probable cause to search the tire
during the part of the search conducted with Mr. Vargas’s consent. With
*
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and Tenth Cir. R. 32.1(A).
this finding, Mr. Vargas pleaded guilty to possession of methamphetamine
with intent to distribute. 1
On appeal, Mr. Vargas argues that the evidence should have been
suppressed because his consent had not extended to the search of his trunk.
In addition, he faults the district court for failing to make further findings
on the scope of his consent. But in district court, Mr. Vargas did not
challenge the officers’ look inside the trunk. Thus, he forfeited his present
argument on the scope of his consent, and the district court had no need to
make findings on this issue. We affirm.
I. The Search of the Trunk
Mr. Vargas was stopped for speeding and asked if he had any drugs
in the car. He said “no.” The officer asked if he could “look real quick,”
and Mr. Vargas replied “sure.”
After looking inside the car, two officers opened the trunk. One
officer noticed that the spare tire was not secured in the tire well, that the
tire’s tread had worn down, that there were tool marks on the rim, and that
the spare tire was a different brand than the rest of the tires. The officer
removed the spare tire, bounced it on the ground, and heard something
shift in the tire when it bounced. The sound led the officer to believe that
there were drugs in the tire, so he poked a hole in the tire and saw gray
1
Mr. Vargas preserved his right to appeal the denial of his motion to
suppress.
2
duct tape, plastic baggies, and white powder. The entire search took about
two minutes.
Authorities eventually found five bundles of methamphetamine in the
tire. Mr. Vargas moved to suppress the evidence, arguing that the search
exceeded the scope of his consent when the officers searched and destroyed
the spare tire. The district court denied the motion to suppress, reasoning
that the officers obtained probable cause to search the tire during the part
of the search conducted with Mr. Vargas’s consent.
On appeal, Mr. Vargas contends that (1) the search of the trunk
exceeded the scope of his consent and (2) the district court’s findings on
consent were insufficient. Mr. Vargas forfeited the first contention. With
this forfeiture, the district court had no reason to make further findings on
consent.
II. Standard for Forfeiture of an Appellate Issue
An appellate issue is forfeited when it is not timely asserted in
district court. See Hamer v. Neighborhood Hous. Servs. of Chi., ___ U.S.
___, 138 S. Ct. 13, 17 n.1 (2017) (“[F]orfeiture is the failure to make the
timely assertion of a right.” (quoting United States v. Olano, 507 U.S. 725,
733 (1993)) (alteration in original)). Thus, an argument for suppression of
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evidence is forfeited when presented for the first time on appeal. United
States v. Brooks, 438 F.3d 1231, 1240 (10th Cir. 2006). 2
To preserve the issue, an appellant’s argument in district court must
go beyond “vague, all-encompassing statements that fail to alert the . . .
court to the issue eventually raised on appeal.” United States v.
Rodebaugh, 798 F.3d 1281, 1313 (10th Cir. 2015). Instead, the appellant
must “make ‘sufficiently definite, specific, detailed and nonconjectural
factual allegations supporting’” a claim. United States v. White, 584 F.3d
935, 949 (10th Cir. 2009) (quoting United States v. Gambino-Zavala, 539
F.3d 1221, 1227 n.2 (10th Cir. 2008)).
III. Forfeiture of Mr. Vargas’s Argument Involving Consent to Look
Inside the Trunk
Mr. Vargas makes two contentions for preservation of his argument
that he didn’t consent to a search of the trunk:
1. He adequately raised the issue before the district court in his
motion to suppress the evidence.
2. The question of consent to look inside the trunk is antecedent
to the claim raised in district court.
Both contentions fail.
2
The government characterizes the failure to present the current
argument in district court as a waiver (rather than forfeiture) based on
Federal Rule of Criminal Procedure 12(c)(3). Because Mr. Vargas failed to
request plain-error review, we would decline to consider his argument
regardless of whether it had been forfeited or waived. See Richison v.
Ernest Grp., 634 F.3d 1123, 1131 (10th Cir. 2011). Thus, we assume
(without deciding) that the failure to preserve the current argument in
district court would result in a forfeiture rather than a waiver.
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A. Sufficiency of Mr. Vargas’s Presentation of His Current
Argument in District Court
According to Mr. Vargas, he argued in district court that he had not
consented to a search of the trunk. The motion to suppress summarized Mr.
Vargas’s arguments about the scope of his consent:
One, no reasonable person would believe the consent given in
this case would allow an officer to destroy the spare tire. And,
two, Mr. Vargas’s consent to “take a look real quick” did not
allow the officers to go into the trunk and cut open a mounted
tire.
R. vol. 1, at 14. Mr. Vargas characterizes the two sentences as challenges
to the scope of his consent on
 the destruction of the tire and
 the look inside his trunk.
Otherwise, he says the two sentences would involve duplicative challenges
to the destruction of the tire. Mr. Vargas is incorrect for two reasons.
First, even if Mr. Vargas presented two different arguments on the
scope of his consent, it does not necessarily follow that one of these
arguments addressed the search of his trunk. It is undisputed that the first
sentence objected to the destruction of the tire. But the second sentence
can be read as an objection confined to the removal and cutting of his tire.
The reference to the trunk arguably indicated only where the spare tire was
located.
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But let’s assume that Mr. Vargas is right about the stated difference
in his two points. It wouldn’t matter: We are not parsing his words as we
might when interpreting a contract; we are reviewing his words to
determine whether Mr. Vargas adequately presented his current argument
in district court. The district court should not have to dig into possible
differences between the two sentences to figure out that Mr. Vargas was
disputing consent to look in the trunk.
His perfunctory objection to the search of the trunk did not provide
the district court with a fair opportunity to rule on the issue, for Mr.
Vargas made no arguments for why his consent was limited to the interior
of the car and cited no case law supporting such an argument. 3 Thus, Mr.
Vargas’s “‘arguable reference[ ] to [the] point in district court proceedings
[does] not . . . preserve the issue on appeal.’” Lyons v. Jefferson Bank &
Tr., 994 F.2d 716, 721 (10th Cir. 1993) (quoting Monarch Life Ins. Co. v.
Elam, 918 F.2d 201, 203 (D.C. Cir. 1990)) (omission in original).
3
Mr. Vargas contends that he cited United States v. Ledesma, 447 F.3d
1307 (10th Cir. 2006), as support for his argument that the consent had not
extended to a search of the trunk. His parenthetical citation explains that
this case “rel[ied] on probable cause, not consent, to support a search
behind the interior panels of a van when the initial consent was for ‘bags
and stuff.’” R. vol. 1, at 19. The Ledesma court’s statements about interior
panels and hidden compartments relate to the search of a mounted spare
tire containing hidden contraband, not an obvious, unconcealed trunk.
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Even if Mr. Vargas argued to the district court that his consent did
not extend to a search of the trunk, the argument was undeveloped,
unsupported, and insufficient to avoid forfeiture.
B. Preservation of an Antecedent Question
Mr. Vargas also argues that his objection was preserved because the
search of the trunk is a question antecedent to the claim raised in district
court (that the consent did not cover the search and destruction of the tire).
Mr. Vargas is incorrect.
He relies on Lebron v. National Railroad Passenger Corp., 513 U.S.
374 (1995). There the Supreme Court held that if an issue is not properly
raised in a certiorari petition, the Court can still consider that issue if it is
“both prior to the clearly presented question and dependent upon many of
the same factual inquiries” as the clearly presented question. Lebron, 513
U.S. at 382. We have applied Lebron only once in a precedential opinion,
holding that we can consider an entity theory on appeal when antecedent to
an agency theory raised in district court. United States v. Ackerman, 831
F.3d 1292, 1298-99 (10th Cir. 2016). Mr. Vargas’s reliance on Lebron is
misguided.
Lebron provides that to preserve an antecedent question not raised in
district court, the question must involve the same factual inquiry as the
clearly presented issue. Lebron, 513 U.S. at 382. Here, however, different
factors would bear on consent to (1) look inside the trunk and (2) cut open
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the tire. Indeed, in his motion to suppress, Mr. Vargas cited cases
addressing only whether the scope of consent extends to the removal and
destruction of property. These cases were directly related to the search and
destruction of the tire but only tangentially related to the search of the
trunk. Thus, Lebron does not preclude forfeiture of Mr. Vargas’s appellate
argument.
IV. Sufficiency of the Findings on Consent
Mr. Vargas also challenges the sufficiency of the district court’s
findings on consent to look inside the trunk. The court stated that the
officers’ search was lawful only if “the ‘officers obtained probable cause
to search the tire during the portion of the search to which the defendant
did consent.’” R. vol. 1, at 39 (quoting United States v. Carbajal-Iriarte,
586 F.3d 795, 802-03 (10th Cir. 2009)). We reject Mr. Vargas’s challenge
to the sufficiency of the finding.
When a motion raises a factual issue, the district court “must state its
essential findings on the record.” Fed. R. Crim. P. 12(d). This requirement
is satisfied “as long as the essential basis of the court’s decision is
apparent.” United States v. Toro-Pelaez, 107 F.3d 819, 824 (10th Cir.
1997).
In our view, the requirement was satisfied. In district court, Mr.
Vargas did not question consent to look inside the trunk. Instead, he
argued that consent to take “a real quick look did not include taking a
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knife to a mounted spare tire that was in the trunk.” R. vol. 1, at 19. In
response, the government argued that Mr. Vargas’s consent had “extended
to the entire vehicle.” Id. at 27. Mr. Vargas did not argue to the contrary.
The district court focused on consent to cut the tire because that was
what Mr. Vargas had disputed. The district court did not make findings on
consent to look inside the trunk because that was not at issue. Thus, the
district court did not err in declining to make express findings on consent
to look inside the trunk.
V. Conclusion
Mr. Vargas forfeited his argument that the scope of his consent had
not extended to a search of the trunk. First, in his motion to suppress in
district court, Mr. Vargas objected only to the search and destruction of the
tire, not to the search of the trunk. Second, Mr. Vargas did not preserve the
argument by raising an antecedent issue. Thus, Mr. Vargas forfeited his
appellate argument involving consent to look inside the trunk. Because Mr.
Vargas forfeited this argument, the district court had no reason to make
further findings on consent. Thus, we affirm.
Entered for the Court
Robert E Bacharach
Circuit Judge
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