United States v. Ramon Gonzalez ( 2011 )

FILED
NOT FOR PUBLICATION JAN 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10140
Plaintiff - Appellee, D.C. No. 2:07-cr-00083-RCJ-RJJ-
1
v.
RAMON VICENTE GONZALEZ, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted January 11, 2011 **
San Francisco, California
Before: SCHROEDER, RAWLINSON, and BEA, Circuit Judges.
Ramon Gonzalez was convicted of being a Felon in Possession of a Firearm
in violation of 18 U.S.C. § 922(g). Gonzalez appeals the district court’s order
which denied his motion to suppress a firearm police officers found in the trunk of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
a car he was driving, on the grounds that officers violated the Fourth Amendment.
We have jurisdiction under 28 U.S.C. § 1291. We affirm.1
Contrary to Gonzalez’s contentions, officers did not unlawfully coerce him
into believing he had no right to withdraw his consent to the search when they
positioned him facing away from the vehicle being searched. Gonzalez thrice gave
his specific consent to a search of both the vehicle and his trunk—twice verbally
and once in writing. Police officers thrice informed him of his right to refuse
consent. Thus, Gonzalez knew the officers would be searching the vehicle and its
trunk—regardless of whether he could witness the search—and he knew of his
right to refuse consent.
In United States v. McWeeney, 454 F.3d 1030 (9th Cir. 2006), this court set
out six factors to consider to determine whether police officers objectively coerced
a defendant “into believing that [he] had no right to withdraw or delimit [his]
consent once it was given.” Id. at 1037. Those factors are: “1) the language used
to instruct the suspect; 2) the physical surroundings of the search; 3) the extent to
which there were legitimate reasons for the officers to preclude the suspect from
observing the search; 4) the relationship between the means used to prevent
1
Because the parties are familiar with the facts of the case, we will repeat
them here only to the extent necessary to explain our decision.
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observation of the search and the reasons justifying the means; 5) the existence of
any changes in circumstances between when consent was obtained and when the
officers prevent[ed] the suspect from observing the search; and 6) the degree of
pressure applied to prevent the suspect either from observing the search or voicing
his objection to its proceeding further.” Id.The district court did not err in its application of the McWeeney factors.
There is no indication the physical surroundings indicated Gonzalez could not
withdraw his consent. Moreover, police had legitimate safety reasons to request
that Gonzalez place his hands on the car while the search was ongoing. Gonzalez
had told officers he was a convicted armed robber, and officers described him as
looking “nervous” throughout the encounter. Because Gonzalez’s hands were on
the patrol car, officers were able to monitor his movements during the search.
Besides the fact that Gonzalez was asked to place his hands on the car, there was
no relevant change in circumstances between his consent and the search. Finally,
officers applied no pressure or force on Gonzalez to prevent him from observing
the search. Gonzalez was merely asked to face the patrol car and place his hands on
the car. There is no indication Gonzalez attempted to turn around to view the
search, or that he was prevented from doing so.
AFFIRMED.
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