United States v. Warwick , 928 F.3d 939 ( 2019 )

FILED
United States Court of Appeals
Tenth Circuit
June 28, 2019
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-2116
WILLIAM DOUGLAS WARWICK,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 1:16-CR-04572-WJ-1)
Jerry A. Walz, Walz and Associates, P.C., Albuquerque, New Mexico, for
Appellant.
Thomas J. Aliberti, Assistant United States Attorney (John C. Anderson, United
States Attorney, with him on the brief), Office of the United States Attorney,
Albuquerque, New Mexico, for Appellee.
Before TYMKOVICH, Chief Judge, BALDOCK, and CARSON, Circuit Judges.
TYMKOVICH, Chief Judge.
This appeal arises from a home search that led to the discovery of firearms
possessed by William Warwick. After obtaining his oral consent, law
enforcement officials executed a search of Warwick’s home, looking for a
potentially dangerous fugitive. The officers found the fugitive hiding in a closet,
and noticed several firearms as well. Warwick claimed the weapons as his own,
and, after the officers learned he had a previous felony conviction, they asked him
a second time for consent to search the house—this time to secure the firearms.
Warwick signed a consent form, and agents discovered ammunition and illegal
drugs in addition to the guns.
Warwick was charged with unlawful possession of firearms and drugs.
Before the district court he argued the evidence was illegally obtained, claiming
he never gave oral consent and that his written consent was not voluntary. The
district court denied his motion to suppress the evidence, finding he gave valid
consent to the searches. We AFFIRM.
I. Background
Nine law enforcement agents approached Warwick’s residence on the
morning of August 3, 2016 to execute an arrest warrant for a gang-affiliated
fugitive wanted for murder. FBI agents had received a tip that the fugitive was
staying at Warwick’s trailer. At approximately 11:40 AM, the agents parked two
cars in front of the property and one in the back. Several agents drew their
firearms, including one agent who stood beside a vehicle and trained his firearm
on the windows above the front door while another officer knocked.
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Warwick answered the knock and stepped outside. The officer at the door
asked if someone named “Shauna” was there and Warwick said no. 1 Officer
testimony indicated Warwick granted oral permission to search the residence at
the agent’s request. According to Warwick, however, the agents entered his
residence from the rear while he was talking with the officer at the front door, and
he did not grant oral consent to the search. The district court deemed Warwick’s
contrary testimony not credible, finding Warwick consented to entry and that no
officer entered the residence prior to his consent.
Agents searched the residence for the fugitive and discovered her in a
bedroom closet. While securing her, an officer observed two firearms in plain
view in the closet. Officers continued a protective search of the residence in
places where a person could hide, out of concern that other gang members might
be hiding.
Meanwhile, an officer remained outside with Warwick. Their conversation
was casual and friendly. Warwick was not permitted to enter the residence while
the officers searched for the fugitive. Nevertheless, Warwick could move about
the outside area. After the fugitive was taken into custody, another agent
introduced himself to Warwick, explained the charges against the fugitive,
showed him the wanted poster, and told him agents had seen firearms in the closet
1
The fugitive had told Warwick her name was “Sally Martinez,” so
Warwick did not know her by the name Shauna.
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where she was found. Warwick said he did not know the fugitive’s true identity.
He also volunteered that the firearms in the closet were his and offered his
opinions on the Second Amendment. In total, Warwick was loosely monitored for
approximately thirty-five minutes.
After the discussion, an officer ran Warwick’s criminal history and
determined he had been convicted of a felony. Warwick was then asked to sign a
consent-to-search form authorizing a full search of the residence. The form read:
CONSENT TO SEARCH
1. I have been asked by Special Agents of the Federal Bureau of
Investigation to permit a complete search of [my premises].
2. I have been advised of my right to refuse consent.
3. I give this permission voluntarily.
4. I authorize these agents to take any items which they determine
may be related to their investigation.
United States v. Warwick, No. 16-CR-4572 MCA, 2017 WL 3822076, at *5
(D.N.M. Aug. 30, 2017). The agent explained the form to Warwick, read each
line to him, and told him he could limit or stop the search at any time. No threats
were made and no guns were pointed at Warwick. Warwick alleges he replied
“You’ve already searched anyway. What does it matter?” He also alleges he was
told that if he signed the consent form, he would not go to jail. Officer testimony,
however, indicated Warwick was friendly and agreeable, and that he replied
“Well, you guys are already here anyway,” and signed the form. The district
court credited the officer testimony and deemed Warwick’s contrary testimony
not credible.
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After Warwick signed the form, several officers searched the home and
seized firearms, ammunition, methamphetamines, and drug paraphernalia. While
an officer was outside with Warwick, he observed Warwick wore an empty gun
holster. When asked about it, Warwick retrieved a slingshot and jokingly
demonstrated a quick-draw action.
Warwick was later charged with multiple counts of knowingly possessing
firearms and unlawfully, knowingly, and intentionally possessing
methamphetamine with intent to distribute. Warwick moved to suppress the
seized evidence, arguing he did not give oral consent to the first search and his
written consent was not voluntary.
The district court denied the suppression motion. On the basis of
credibility determinations, it concluded Warwick gave oral consent to the search.
Id. at *2–3. The court also found Warwick “voluntarily consented to the search
of his residence, both for [the fugitive] and later to a full search, and he was not
coerced into consenting to the search.” Id. at *7. Indeed, the court determined
“that, despite the sizeable number of officers present and their prominent display
of guns, including rifles, [Warwick] remained calm, confident, pleasant, and
assertive from the time that he exited his home until the officers left.” Id.
Finally, the court found Warwick “understood the advisements within the
consent-to-search form, including the right to refuse consent to either search” and
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that the consent-to-search form was “sufficiently clear and unambiguous to
outweigh any arguably coercive effect of the atmosphere of the encounter.” Id.
II. Analysis
Warwick contends the search of his home was unlawful for two reasons.
First, he denies that he gave oral consent to law enforcement to enter the
residence and search for the fugitive. Second, he contends his signature on the
written consent form was obtained involuntarily.
The Fourth Amendment guarantees “the right of the people to be
secure . . . against unreasonable searches and seizures.” U.S. Const. amend. IV.
For this reason, a warrant is generally required before an officer may search or
seize persons or property. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
The warrant requirement is subject to “a few specifically established and
well-delineated exceptions.” Id. (quoting Katz v. United States, 389 U.S. 347,
357 (1967)).
One such exception is that law enforcement may search a residence if the
person in control of the residence voluntarily consents to the search. Id. at 222.
This longstanding exception is deeply rooted in the common law and remains
influenced by property rules regarding trespass. See Georgia v. Randolph, 547
U.S. 103, 111 (2006); see also Leonard W. Levy, Origins of the Bill of Rights 151
(1999) (William Pitt, in 1763: “The poorest man may, in his cottage, bid defiance
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to all the forces of the Crown.”); William Shakespeare, 1 Henry IV, Act II, sc. 4
(Hostess Quickly: “The sheriff and all the watch are at the door: they are come to
search the house. Shall I let them in?”).
First we consider whether the district court clearly erred in finding
Warwick orally consented to the search of his residence for a fugitive. Then we
address whether the district court clearly erred in finding Warwick voluntarily
consented in writing to the full search of his residence. We hold the district court
did not abuse its discretion with either finding.
A. Oral Consent to Search
Warwick argues he did not orally consent to the search of his residence for
the fugitive. The officer at the door testified that, when asked for permission to
search, Warwick replied “Go ahead.” Doc. 75 at 70. The district court, assessing
the conflicting accounts, determined the officer’s testimony was credible and
Warwick’s was not.
This court is “loath to second-guess a district court’s determination of a
witness’s credibility.” United States v. Asch, 207 F.3d 1238, 1243 (10th Cir.
2000). Indeed, “when a case rests entirely on oral testimony, the district court's
credibility determinations, if not internally inconsistent, can virtually never be
clear error.” United States v. Miller, 84 F.3d 1244, 1250 (10th Cir. 1996).
Warwick says the district court’s finding that he calmly acquiesced to the search
is internally inconsistent with “the feverish situation that was unfolding,” such as
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the presence of multiple armed officers. See Aplt. Br. at 15. But Warwick
himself testified under oath that he remained calm throughout the entire
encounter. See Doc. 157 at 68. Moreover, Warwick is a 52-year-old man who
had no difficulty asserting himself, knew his rights, and had prior contacts with
law enforcement. Warwick fails to meet his burden of demonstrating that the
district court’s credibility determination is internally inconsistent. The district
court’s determination that Warwick consented is not clearly erroneous.
Recognizing the uphill battle he faces against the district court’s credibility
determination, Warwick pivots to a novel argument. For the first time on appeal,
he argues that even if he did orally consent to the search, his oral consent was not
voluntary. An argument not raised in the suppression motion, however, is
waived. United States v. Burke, 633 F.3d 984, 987 (10th Cir. 2011) (“But none of
these arguments was presented to the district court at the suppression hearing, and
they are therefore waived on appeal.”). Indeed, we are required under Federal
Rule of Criminal Procedure 12(e) to decline review of any argument not made in
a motion to suppress evidence and raised for the first time on appeal, unless good
cause can be shown why the argument was not raised below. See id. at 987–88
(“[T]his waiver provision applies not only to the failure to make a pretrial motion,
but also to the failure to include a particular argument in the motion.”). 2
2
Rule 12 was amended after our decision in Burke. But we recently held
(continued...)
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Warwick does not attempt to show good cause. Instead, he relies on a
“broad reading of the motion to suppress” and a specific sentence in the motion
that argued “consent was involuntary.” See Reply Br. at 4. That sentence, though
not specifying whether it pertained to oral consent or written consent, is best read
as referring to the voluntariness of Warwick’s written consent because that is
what the motion as a whole proceeded to argue. The district court, consistent
with the briefing and testimony at the suppression hearing, correctly observed that
Warwick “does not argue that [his oral] consent was coerced because [Warwick],
instead, argues that it did not happen.” Warwick, No. 16-CR-4572 MCA, 2017
WL 3822076, at *10.
Because Warwick failed to raise in district court the argument that his oral
consent was involuntary, it is waived and we must decline review.
B. Written Consent to Search
Warwick acknowledges he gave agents written consent to search his
residence, but argues his consent was not voluntary.
Consent is voluntary if the government establishes by “clear and positive
testimony that consent was unequivocal and specific and freely and intelligently
given.” United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir. 1995)
2
(...continued)
the 2014 amendments “did not change the standard for appellate review, [and]
Burke remains good law.” United States v. Bowline, 917 F.3d 1227, 1236 (10th
Cir. 2019).
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(internal quotation marks omitted). “Whether a defendant’s consent to search [is]
voluntary is a question of fact, and the court considers the totality of the
circumstances in making this determination.” United States v. Carbajal-Iriarte,
586 F.3d 795, 799 (10th Cir. 2009). A signed consent form indicates voluntary
consent. Eidson v. Owens, 515 F.3d 1139, 1147 (10th Cir. 2008). Other relevant
considerations include
physical mistreatment, use of violence, threats, promises, inducements,
deception, trickery, or an aggressive tone, the physical and mental
condition and capacity of the defendant, the number of officers on the
scene, and the display of police weapons. Whether an officer reads a
defendant his Miranda rights, obtains consent pursuant to a claim of
lawful authority, or informs a defendant of his or her right to refuse
consent also are factors to consider in determining whether consent
given was voluntary under the totality of the circumstances.
United States v. Jones, 701 F.3d 1300, 1318 (10th Cir. 2012).
Warwick argues his written consent was involuntary for several reasons,
including (1) the show of force at the beginning of the encounter, (2) the length of
detention while the search progressed—about 35 minutes, and (3) his belief that
refusal would be futile. Warwick says the district court clearly erred by treating
the signed consent form, the manner of obtaining consent, and the evidence of
friendly interaction between Warwick and the agents during this time as more
probative of consent than those other factors. We disagree.
Any show of force dissipated soon after Warwick exited his home. Indeed,
only one or two agents were present when Warwick signed the consent form. One
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agent reviewed the consent-to-search form line-by-line with Warwick and
explained he could limit the search or end the search at any time. The form itself
states Warwick was advised of his right to refuse and that he gave permission
“voluntarily.” Warwick presents no credible evidence of coercive tactics such as
physical mistreatment, use of violence, threats, promises, inducements, deception,
trickery, or an aggressive tone. To the contrary, the district court found Warwick
was friendly and comfortable enough to engage the agents in small talk and jokes.
This situation mirrors United States v. Kimoana, 383 F.3d 1215 (10th Cir. 2004),
in which we affirmed the district court’s finding of voluntary consent. There, we
observed consent may “be voluntary where the officers approached the defendant
with guns drawn, but then holstered them once the area was secured and before
asking for consent to search.” Id. at 1226.
With respect to the length of detention, we need not determine whether
Warwick was in custody, because even someone who is detained can give valid
consent. United States v. Soto, 988 F.2d 1548, 1557 (10th Cir. 1993) (“Valid
consent may be given by a person being detained.”). The district court aptly
analogized Warwick’s case to United States v. Cruz-Mendez, 467 F.3d 1260 (10th
Cir. 2006), in which law enforcement obtained consent to search a residence from
the defendant’s girlfriend after approximately thirty minutes of contact, see id. at
1267. In Cruz-Mendez, we noted the trial court “explicitly found that the officers
were not overly threatening or forceful” and “the length [of police contact] did
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not necessarily make it overbearing.” Id. Like the circumstances here, it was not
“the equivalent of a lengthy interrogation in a bare room while the subject sits on
a stool until her will is overborne.” Id.
According to agent testimony, Warwick “relax[ed]” in front of his
residence while being “loose[ly]” monitored by law enforcement—he was not
“surrounded.” Doc. 75 at 105. The period of loose monitoring had a valid,
non-coercive purpose: officers were actively searching for a gang-affiliated
fugitive and others potentially hidden in the residence. The period of monitoring
was motivated by legitimate concern, given the circumstances, and the agents did
not act unreasonably. Cf. United States v. Strache, 202 F.3d 980, 986 (7th Cir.
2000) (defendant who was handcuffed for twenty minutes before consenting
nonetheless did so voluntarily); United States v. French, 974 F.2d 687, 693 (6th
Cir. 1992) (forty-five minutes between stop and consent did not amount to
coercion); United States v. Tyson, 360 F. Supp. 2d 798, 806 (E.D.Va. 2005)
(consent given thirty minutes after officers arrived; finding of voluntariness
supported by initial refusal to permit warrantless search).
Finally, Warwick relies on his statement that agents were “already in there
anyway” to show he believed refusal to consent would be futile. The district
court expressly rejected Warwick’s version of his statement as unreliable and not
credible. In fact, according to the district court, Warwick said, “Well, you guys
are already here anyway.” This statement suggests convenience of the parties, not
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futility, motivated Warwick’s consent. Meanwhile, only areas where a person
could hide had already been searched (pursuant to the oral consent given earlier).
And although the guns had been seen in plain view during the initial search for
the fugitive, the firearms and drug evidence were not seized until Warwick gave
written consent. Even if Warwick felt that withholding consent would be futile
because officers had already seen the contraband, that feeling would not
necessarily vitiate his unequivocal, specific, free, and intelligently given consent
under the totality of the circumstances. See Jones, 701 F.3d at 1318.
Having assessed Warwick’s arguments, we are persuaded the district court
reasonably weighed the show of force, length of detention, and futility against the
numerous other factors indicating valid consent. Under the totality of the
circumstances, the district court did not clearly err in determining Warwick gave
voluntary written consent to the residential search. 3
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.
3
We need not address the government’s alternative argument that the
contraband inevitably would have been discovered since officers would have
obtained a search warrant absent consent.
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