655 F. App'x 666
10th Cir.2016Background
- DEA Agent Jarrell Perry, in plain clothes with a recording device, boarded a Greyhound bus in Albuquerque and asked Nora Amador-Beltran (Spanish-speaking) for permission to speak and to search her belongings.
- Amador-Beltran consented to searches of a bag, a purse, and a pillow; she also handed Perry a sweater (initially thought to be a blanket) after a short exchange in Spanish with some unintelligible words.
- While searching the sweater, Perry felt and removed a fanny pack concealed in a sleeve, opened it, and found two foil-wrapped bricks later determined to be heroin.
- Amador-Beltran did not object during the search; she was charged with possession with intent to distribute and pleaded guilty after the district court denied her motion to suppress; she reserved the right to appeal the suppression denial.
- The Tenth Circuit reviews factual findings for clear error and legal questions (including validity of consent) de novo; it applies a two-pronged voluntariness test: (1) consent must be clear and specific, and (2) consent must be free from coercion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Amador-Beltran unequivocally consented to search the sweater given language barriers | Her consent was not unequivocal because of language difficulties and an allegedly unintelligible word from Perry | Consent was clear from context and conduct (she handed over the sweater after prior consistent consents) | Court: Consent was clear and manifested by handing over the sweater |
| Whether consent to search the sweater extended to a concealed fanny pack | Even if sweater consented, she did not consent to open containers inside it | It was objectively reasonable to believe general consent to search for contraband included containers within the sweater | Court: Search of fanny pack was within the scope of consent |
| Whether consent was voluntary or implicitly coerced | Consent was implicitly coerced due to officer presence, language difficulty, and lack of advisal of right to refuse | Totality of circumstances (public setting, plain clothes, no weapon visible, conversational tone, single officer) shows voluntariness | Court: Consent was voluntary and not coerced |
| Whether failure to object during the search undermines claimed limited consent | Failure to object is meaningless absent knowledge of search | Failure to limit consent or object supports the reasonableness of the search scope | Court: Failure to object supported finding of broad consent |
Key Cases Cited
- United States v. Garcia, 707 F.3d 1190 (10th Cir.) (standard of review for suppression rulings)
- United States v. Harrison, 639 F.3d 1273 (10th Cir.) (consent voluntariness review is factual)
- United States v. Jackson, 381 F.3d 984 (10th Cir.) (scope-of-consent objective-reasonableness test)
- United States v. Andrus, 483 F.3d 711 (10th Cir.) (de novo review of whether consent was validly given)
- United States v. Guerrero, 472 F.3d 784 (10th Cir.) (two-pronged voluntariness test for consent)
- United States v. Benitez-Arreguin, 973 F.2d 823 (10th Cir.) (language/barrier concerns can negate clear consent)
- Florida v. Jimeno, 500 U.S. 248 (U.S.) (consent to search an item includes containers reasonably expected to hold contraband)
- United States v. Thompson, 546 F.3d 1223 (10th Cir.) (non-exhaustive factors for assessing coercion in consent)
- Drayton v. Minnesota, 536 U.S. 194 (U.S.) (consent voluntary under similar public, noncoercive circumstances)