United States v. Udell Cly

FILED
NOT FOR PUBLICATION
APR 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30018
Plaintiff - Appellee, D.C. No. 4:12-cr-00062-BMM-1
v.
MEMORANDUM*
UDELL CLY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted April 8, 2016**
Seattle, Washington
Before: HAWKINS, RAWLINSON, and CALLAHAN, Circuit Judges.
Udell Cly pleaded guilty to Count 1 of an indictment charging him with
sexual abuse of a minor, a violation of 18 U.S.C. §§ 1153(a), 2243(a). On appeal,
he challenges the denial of his motion to suppress evidence gathered during a
*
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).
warrantless search of his mother’s home. We have jurisdiction under 28 U.S.C. §
1291 and affirm.
“We review de novo motions to suppress, and any factual findings made at
the suppression hearing for clear error.” United States v. Basher, 629 F.3d 1161,
1165 (9th Cir. 2011) (quoting United States v. Ruckes, 586 F.3d 713, 716 (9th Cir.
2009)). The district court denied suppression based on two well-established
exceptions to the warrant requirement: voluntary consent and exigent
circumstances.
1. “In order to establish the validity of a consent to search, the
government bears the heavy burden of demonstrating that the consent was freely
and voluntarily given.” United States v. Chan-Jimenez, 125 F.3d 1324, 1327 (9th
Cir. 1997) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)). Because
the district court did not make a specific factual finding as to whether consent was
given, we review de novo. Basher, 629 F.3d at 1165.
We have stated that “[c]onsent can be inferred from nonverbal actions, but it
must be ‘unequivocal and specific’ and ‘freely and intelligently given.’” Basher,
629 F.3d at 1167 (quoting Chan-Jimenez, 125 F.3d at 1328). The hearing
testimony demonstrates that the officers received nonverbal consent from Annette
Stanley, a resident of the home and the defendant’s mother, to search the
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basement.1 In response to the officers’ explanation that there were several missing
young girls hiding in her basement and consuming alcohol with two adult males,
including her son, Ms. Stanley “hollered” for the defendant, who emerged from the
basement. Ms. Stanley then led the officers down the basement stairs where the
missing girls were located. These circumstances were sufficiently unequivocal and
specific to constitute a valid consent.
The second prong of the inquiry required the district court to determine
whether consent was voluntarily given. Whether a person’s consent was
voluntarily given is determined from the totality of the circumstances. Chan-
Jimenez, 125 F.3d at 1327. Ms. Stanley was not in custody at the time of the
request to search. Because she was not in custody, Miranda warnings,2 which were
not given, were unnecessary. In addition, there is no testimony that the officers
had their guns drawn, nor is there testimony establishing that the officers
threatened Ms. Stanley that they would obtain a search warrant if she refused to
consent. Considering the totality of the circumstances, Ms. Stanley’s consent met
the standard we have set for voluntariness. Basher, 629 F.3d at 1168.
1
There is no dispute that Ms. Stanley had the authority to give consent.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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2. The district court properly determined that exigent circumstances
justified the officers’ warrantless search of the home. Whether exigent
circumstances existed is a mixed question of law and fact that is reviewed de novo.
United States v. Reilly, 224 F.3d 986, 991 (9th Cir. 2000). “One exigency
obviating the requirement of a warrant is the need to assist persons who are
seriously injured or threatened with such injury.” Brigham City v. Stuart, 547 U.S.
398, 403 (2006). “The exigencies must be viewed from the totality of
circumstances known to the officers at the time of the warrantless intrusion.”
United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985). When the officers
arrived at the scene, they were told that the missing girls they were looking for,
between ages 12 and 14, were in Ms. Stanley’s basement. As the district court
reasoned, the officers could reasonably have believed the combination of multiple
young girls, adult males, and alcohol posed a serious danger of sexual assault or
other injury to those teenage girls. Thus, their warrantless entry was reasonable,
and the district court’s refusal to suppress the evidence found as a result of their
search was proper.
AFFIRMED.
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