throbber
PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`April 27, 2021
`
`Christopher M. Wolpert
`Clerk of Court
`
`UNITED STATES OF AMERICA,
`
` Plaintiff - Appellee,
`
`v.
`
`ETHAN GUILLEN,
`
` Defendant - Appellant.
`_________________________________
`
`
`
`
`
`No. 20-2004
`
`Appeal from the United States District Court
`for the District of New Mexico
`(D.C. No. 1:17-CR-01723-WJ-1)
`_________________________________
`
`Melissa Ayn Morris, Assistant Federal Public Defender, Albuquerque, New Mexico, for
`Defendant–Appellant.
`
`Tiffany L. Walters, Assistant United States Attorney (John C. Anderson, United States
`Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff–Appellee.
`_________________________________
`
`Before TYMKOVICH, Chief Judge, BALDOCK, and CARSON, Circuit Judges.
`_________________________________
`
`BALDOCK, Circuit Judge.
`_________________________________
`
`After a young woman found a pressure cooker bomb hidden under her bed, law
`
`enforcement agents went to the home of the only person she said might want to harm
`
`
`
`
`
`

`

`her: Ethan Guillen.1 The agents entered Ethan’s home, questioned him, and obtained
`
`consent from his father to search the residence. During the search, the agents found
`
`evidence in Ethan’s bedroom indicating his involvement with the pressure cooker
`
`bomb. When one of the agents confronted Ethan with the information and evidence
`
`they had collected, he confessed to making the bomb. The agent immediately
`
`provided the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), and
`
`Ethan proceeded to make more incriminating statements.
`
`Ethan ultimately entered a conditional plea of guilty to possession of an
`
`unregistered destructive device and an attempt to damage or destroy a building by
`
`means of fire or an explosive. His plea agreement reserved the right to appeal the
`
`district court’s order denying his motion to suppress the physical evidence and
`
`incriminating statements resulting from the search of his home. Exercising that right,
`
`Ethan argues the district court should have suppressed the physical evidence found in
`
`his home because the agents’ warrantless entry and search of his bedroom violated
`
`his Fourth Amendment rights. He also contends the district court should have
`
`suppressed the incriminating statements he made after receiving Miranda warnings
`
`because the agents elicited them through coercion and used an impermissible two-
`
`step interrogation technique to end run around Miranda.
`
`We have jurisdiction under 28 U.S.C. § 1291, and we conclude that the district
`
`court correctly denied Ethan’s suppression motion. No Fourth Amendment violation
`
`
`1 The parties refer to Ethan Guillen; his father, Reynaldo Guillen; and his
`brother, Tyler Guillen, by their first names. In the interest of clarity, we do the same.
`2
`
`
`
`

`

`occurred because Ethan voluntarily consented to the agents’ entry into his home and
`
`because the agents reasonably relied on his father’s consent to search his bedroom.
`
`Ethan’s initial confession, which the district court suppressed, was inadmissible
`
`because the agents failed to provide Miranda warnings before they engaged in
`
`custodial interrogation. But the midstream Miranda warnings Ethan received were
`
`sufficient to advise him of his rights and render his voluntary postwarning statements
`
`admissible. For these reasons, we affirm the district court’s judgment.
`
`I.
`
`On May 31, 2017, law enforcement responded to a 911 call from “MC,” a
`
`young woman who had found an improvised explosive device under her bed. The
`
`device was a pressure cooker sealed with white duct tape and filled with black
`
`powder; homemade napalm; and various types of shrapnel, including nuts, bolts, and
`
`screws. A fuse ran through the pressure cooker’s release valve and connected to an
`
`electric soldering iron, which was plugged into a timer that was plugged into the wall
`
`with a power strip. The device was designed so that the timer would turn on the
`
`soldering iron, which would heat up, ignite the fuse, and cause an explosion.
`
`Fortunately, the bomb never detonated.
`
`Special Agent Zachary Rominger, an agent with the Bureau of Alcohol,
`
`Tobacco, Firearms, and Explosives (ATF), interviewed MC and her mother. When
`
`asked if anyone would want to hurt or kill her, MC could think of only one person—
`
`her ex-boyfriend, Ethan. MC said she had dated Ethan for about six months. After
`
`they broke up, MC explained, Ethan continued to try and communicate with her
`3
`
`
`
`

`

`against her wishes. And at some point, MC’s school provided her with an escort to
`
`class in an effort to stop Ethan’s harassment.
`
`After wrapping things up at MC’s home, law enforcement agents went to
`
`Ethan’s house. At approximately 9:43 p.m., ATF Special Agents Zachary Rominger
`
`and Derek Wright, FBI Special Agent Bomb Technicians Craig Greene and Michael
`
`Anthony, and Albuquerque Police Department Detective James Larranaga knocked
`
`on Ethan’s front door. FBI Supervisor Marco Gonzalez was also present, but he
`
`stayed out by the street when the other five agents approached the house. Detective
`
`Larranaga’s lapel camera captured on video, among other things, the moments
`
`leading up to the agents’ entry into Ethan’s home.
`
`When the agents knocked on the door, Ethan and his brother, Tyler Guillen,
`
`answered. At the time, Ethan was eighteen years old; Tyler was twenty. The agents
`
`asked if they could come inside and talk. Tyler agreed, but Ethan asked if the agents
`
`had a warrant. After Agent Greene said they did not have a warrant, Ethan suggested
`
`they talk in the doorway instead. When the agents asked again if they could come
`
`inside, the brothers had a brief and largely inaudible discussion, during which Tyler
`
`asked Ethan, “Why do you care?” After the discussion, one of the brothers said
`
`“sure.” Agents Rominger and Greene testified that Ethan said “sure,” but Tyler
`
`testified he made that statement. Assessing the conflicting accounts and the lapel
`
`cam video, the district court deemed the agents’ testimony credible and found that
`
`Ethan was the one who said the word “sure.” At this point, Tyler put his hand on
`
`Ethan’s shoulder, and both brothers moved out of the doorway. Agent Greene
`4
`
`
`
`

`

`confirmed: “Are you inviting us in to talk?” One of the brothers responded, “Yeah,
`
`sure.” Then they all went inside the house.
`
`Following a protective sweep of the residence, during which no evidence was
`
`gathered, Agents Rominger and Greene interviewed Ethan at the kitchen table while
`
`other agents spoke with Tyler in the hallway. Tyler told the agents that their father,
`
`Reynaldo, is a musician and was practicing with his band in Santa Fe that night.
`
`Reynaldo returned home about 18 minutes after the agents’ entry. He informed the
`
`agents he had recently bought a pressure cooker for Ethan and, at the agents’ request,
`
`looked for it. After Reynaldo could not find the pressure cooker, he asked Ethan
`
`where it was. Ethan said he had taken it to his mother’s house. Reynaldo then called
`
`Ethan’s mother to see if she had the pressure cooker. Ethan’s mother said she did not
`
`know whether the pressure cooker was at her house and told Reynaldo she would
`
`have to look for it.
`
`While questioning continued, Reynaldo confirmed he owned the house and
`
`verbally consented to a search. He also signed a search consent form. At that point,
`
`the agents called in the Albuquerque Bomb Squad to assist. Shortly after the search
`
`began, the agents asked Reynaldo if he owned a soldering iron. Reynaldo said he
`
`did, but he couldn’t find it. The agents’ search did not uncover the soldering iron
`
`either, but they discovered a table on the back porch with burn marks and a piece of
`
`fuse burnt onto it. The bomb squad also found white duct tape matching the tape on
`
`the pressure cooker bomb, black duct tape, latex gloves, scissors, super glue, and zip
`
`
`
`5
`
`

`

`ties in a backpack on the floor of the master bedroom. The master bedroom was
`
`Ethan’s room.
`
`Agents Rominger and Greene questioned Ethan at the kitchen table for about
`
`50 minutes, during which time he repeatedly denied any involvement with making
`
`the pressure cooker bomb. After the search ended, the agents asked Ethan, who was
`
`then sitting on the couch in the living room, to return to the kitchen table. Agent
`
`Rominger then laid out the evidence discovered during the search, told Ethan it
`
`pointed to him, and asked if he created the improvised explosive device. Ethan
`
`hesitated, took a deep breath, and then said: “Yes, I made it.” Agent Rominger
`
`immediately read Ethan his Miranda rights.
`
`Ethan acknowledged he understood his rights, continued to respond to the
`
`agents’ questions, and provided information about his involvement with making the
`
`device for the next 20 to 40 minutes. Among other things, Ethan described how he
`
`made the pressure cooker bomb, explained how he planted it under MC’s bed, and
`
`told the agents he wanted MC dead. He also took the agents into his room and
`
`showed them the items he used to build the device, including the white duct tape,
`
`gloves, and super glue stored in his backpack. Ethan never requested a lawyer or
`
`asked the agents to stop questioning him. And he answered all of their questions
`
`except one—whether he planned to make another device to kill MC.
`
`Ethan was charged with possession of an unregistered destructive device, in
`
`violation of 26 U.S.C. § 5861(d), and an attempt to destroy a building by fire or
`
`explosive, in violation of 18 U.S.C. § 844(i). In district court, Ethan filed a motion
`6
`
`
`
`

`

`to suppress his self-incriminating statements and the physical evidence obtained from
`
`the search of his home. Ethan argued that the agents violated his Fourth Amendment
`
`rights by entering his house and searching his bedroom without a warrant and without
`
`his consent. He also contended that the agents violated his Fifth Amendment rights
`
`by questioning him without first providing Miranda warnings.
`
`The district court suppressed Ethan’s pre-Miranda confession but denied his
`
`motion as to the remaining statements and evidence. Starting with the Fourth
`
`Amendment claims, the district court found that both Ethan and his brother
`
`voluntarily consented to the agents’ entry into their home. The district court also
`
`determined the search of Ethan’s bedroom was lawful because his father had apparent
`
`authority to consent to it.
`
`Turning to the Fifth Amendment claims, the district court found the agents’
`
`questioning moved beyond simply attempting to elicit information to custodial
`
`interrogation when they confronted Ethan with the evidence discovered during the
`
`search. Because Agent Rominger had not yet warned Ethan of his Miranda rights,
`
`the district court suppressed the initial confession Ethan made in response to this
`
`custodial interrogation. But the district court concluded that Agent Rominger’s
`
`administration of the Miranda warnings after that initial statement was sufficient to
`
`advise Ethan of his rights and render his postwarning statements admissible.2
`
`
`2 Following the denial of his suppression motion, Ethan twice requested the
`district court to reconsider its factual finding that he consented to the agents’ entry into
`his home. In support, Ethan provided an audio enhancement of the previously
`submitted video taken on Detective Larranaga’s lapel camera and a forensic report
`7
`
`
`
`

`

`Ethan subsequently pleaded guilty, but he reserved the right to appeal the
`
`district court’s denial of his motion to suppress. This is his appeal.
`
`II.
`
`When reviewing the denial of a suppression motion, we view the evidence in
`
`the light most favorable to the government, accept the district court’s factual findings
`
`unless they are clearly erroneous, and review legal conclusions de novo. United
`
`States v. Cortez, 965 F.3d 827, 833 (10th Cir. 2020). Ethan argues the district court
`
`erred by not suppressing the physical evidence found in his home and his post-
`
`Miranda statements in the face of Fourth and Fifth Amendment violations.
`
`A.
`
`The Fourth Amendment guarantees the right of people to be “secure in their
`
`persons, houses, papers, and effects against unreasonable searches and seizures.”
`
`U.S. Const. amend. IV. Ethan contends the agents’ warrantless entry into his home
`
`violated that right for two reasons. First, he denies he gave consent to law
`
`enforcement to enter the residence. Second, he argues that even if he did consent to
`
`the entry, his consent was not voluntary. Ethan also claims the search of his bedroom
`
`and its contents was unlawful under the Fourth Amendment because his father lacked
`
`apparent authority to consent to the search. We address Ethan’s arguments in turn.
`
`
`
`
`outlining the methods and procedures used to create the enhanced material. The district
`court denied both of Ethan’s motions to reconsider. Because Ethan has not specifically
`challenged the district court’s reasons for doing so, we need not address them here.
`8
`
`
`
`

`

`1.
`
`We first consider whether the district court erred when it found Ethan
`
`voluntarily consented to the agents’ entry into his home. Voluntary consent is a
`
`longstanding exception to the general requirement that law enforcement officers must
`
`have a warrant to enter a person’s home. United States v. Warwick, 928 F.3d 939,
`
`943 (10th Cir. 2019). The exception applies when the government proves (1) the
`
`officers received either express or implied consent and (2) that consent was freely
`
`and voluntarily given. United States v. Jones, 701 F.3d 1300, 1317 (10th Cir. 2012).
`
`Whether officers obtained valid consent to enter a home is a question of fact
`
`determined through the totality of the circumstances. Id. at 318. Accordingly, we
`
`review the district court’s finding of consent under the clearly-erroneous standard.
`
`United States v. Guerrero, 472 F.3d 784, 789 (10th Cir. 2007).
`
`Ethan first argues that he never actually consented to the agents’ entry into his
`
`home. In doing so, however, he fails to meaningfully grapple with the district court’s
`
`factual findings. Ethan did initially object to law enforcement entering his home, but
`
`the district court found he subsequently consented to the agents’ entry by saying
`
`“sure” in response to their second request to come inside. In addition to its repeated
`
`viewings of the lapel cam video, the district court based its finding on credible agent
`
`testimony that Ethan was the one who said “sure.”
`
`“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).
`
`We have no basis for doing so here. Neither Ethan’s nor Tyler’s mouth is visible on
`9
`
`
`
`

`

`the lapel cam video when the word “sure” is spoken. And Ethan has not shown the
`
`district court’s credibility determination is internally inconsistent. Warwick, 928
`
`F.3d at 944. He points out that the district court also found Tyler’s testimony
`
`credible, but that credibility determination concerned Ethan’s privacy preferences,
`
`not who said “sure” during the initial encounter at the door. Thus, despite Tyler’s
`
`contrary testimony, the district court did not clearly err when it found Ethan orally
`
`consented to the agents’ entry.
`
`The district court likewise did not clearly err when it determined Ethan
`
`impliedly consented to the entry by stepping away from the doorway and allowing
`
`the agents to enter the house. See Guerrero, 472 F.3d at 789–90 (“[C]onsent must be
`
`clear, but it need not be verbal. Consent may instead be granted through gestures or
`
`other indications of acquiescence, so long as they are sufficiently comprehensible to
`
`a reasonable officer.”). Again relying on his brother’s testimony, Ethan argues his
`
`movement away from the door was caused by Tyler shoving him out of the way. But
`
`Agent Rominger testified that Tyler did not physically remove Ethan from the
`
`doorway. Specifically, Agent Rominger explained that Tyler put his hand on Ethan’s
`
`shoulder, and then Ethan walked out of the way on his own accord. Consistent with
`
`the agent’s credible testimony, the district court determined there was no visible push
`
`on the lapel cam video and found that both brothers cleared the way for the agents to
`
`enter. The district court’s determination that Ethan consented through his actions is,
`
`at a minimum, not clear error.
`
`
`
`10
`
`

`

`Ethan next argues that even if he consented to the agents’ entry, his consent
`
`was not voluntary. Consent is voluntary if it is unequivocal and specific, freely and
`
`intelligently given, and not the product of duress or coercion. Warwick, 928 F.3d at
`
`945. When examining the totality of the circumstances to determine the
`
`voluntariness of consent, some 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.
`
`Id. (quoting Jones, 701 F.3d at 1318).
`
`According to Ethan, any consent he gave was involuntary because he had no
`
`choice but to submit to the agents’ show of authority. More specifically, Ethan says
`
`his consent was necessarily coerced for several reasons, including (1) the presence of
`
`multiple officers, two of whom were in uniform and visibly armed; (2) the agents’
`
`repeated requests to enter; and (3) his characteristics as a youth lacking prior
`
`experience with law enforcement. We are not persuaded.
`
`The presence of multiple officers at the time Ethan consented increased the
`
`coercive nature of the encounter, but that factor is not dispositive. United States v.
`
`Iribe, 11 F.3d 1553, 1557 (10th Cir. 1993) (holding that the district court clearly
`
`erred when it found consent involuntary based on the presence of five officers
`
`because numerous factors indicated the resident voluntarily consented, including that
`
`
`
`11
`
`

`

`she was not coerced, frightened or otherwise threatened; she had a cordial
`
`conversation with officers spoken in low volume; and the officers made no promises
`
`or threats in an attempt to extract her consent). Most of the agents were dressed in
`
`plain clothes, and their weapons were concealed. And the two uniformed officers
`
`never drew their weapons or otherwise brandished them. Thus, aside from the mere
`
`number of officers present, no other evidence in the record suggests Ethan faced a
`
`display of force designed to overbear.
`
`Ethan points to no credible evidence of coercive tactics such as physical
`
`mistreatment, use of violence, threats, promises, inducements, deception, or trickery.
`
`The agents spoke in a casual, rather than an aggressive, manner. And they never
`
`demanded entry or otherwise claimed any lawful authority to be admitted. Under
`
`these circumstances, neither the agents’ multiple requests to enter the Guillen
`
`residence nor Ethan’s initial objection rendered his subsequent consent involuntary.
`
`See United States v. Cruz-Mendez, 467 F.3d 1260, 1263, 1266–68 (10th Cir. 2006)
`
`(upholding district court’s finding of voluntary consent when the resident repeatedly
`
`refused the officers’ initial requests and told them they needed a warrant to search a
`
`home but subsequently consented to the search).
`
`The record evidence also shows that Ethan’s consent was intelligently given.
`
`It is true that the agents did not inform Ethan he could refuse their request to enter
`
`the house and that Ethan lacked prior experience with law enforcement. But Ethan
`
`was a legal adult who knew enough about his rights to ask the agents if they had a
`
`warrant to enter his home. See United States v. Carloss, 818 F.3d 988, 998–99 (10th
`12
`
`
`
`

`

`Cir. 2016) (explaining that an advisement of the right to refuse a warrantless entry is
`
`not a prerequisite for voluntary consent and that a prior refusal of consent showed
`
`awareness of the right to do so). He also was intelligent enough to build an
`
`improvised explosive device that an experienced bomb technician described as one of
`
`the most sophisticated devices he had ever seen in New Mexico. For these reasons,
`
`the district court’s finding that Ethan voluntarily consented to the agents’ entry into
`
`his home is not clearly erroneous.
`
`2.
`
`Ethan also challenges the search of his bedroom, backpack, and nightstand on
`
`the ground that his father, Reynaldo, did not have authority to consent to the search.
`
`Whether the agents reasonably relied on Reynaldo’s consent to search Ethan’s
`
`bedroom and its contents is a legal question we review de novo. United States v.
`
`Kimoana, 383 F.3d 1215, 1222 (10th Cir. 2004).
`
`An officer may obtain valid consent to search from a third party with either
`
`actual or apparent authority over the subject property. United States v. Romero, 749
`
`F.3d 900, 905 (10th Cir. 2014). Actual authority exists when a third party “has either
`
`(1) mutual use of the property by virtue of joint access, or (2) control for most
`
`purposes.” United States v. Rith, 164 F.3d 1323, 1329 (10th Cir. 1999). When actual
`
`authority is lacking, “a third party has apparent authority to consent to a search when
`
`an officer reasonably, even if erroneously, believes the third party possesses authority
`
`to consent.” United States v. Andrus, 483 F.3d 711, 716 (10th Cir.), decision
`
`clarified on denial of reh’g, 499 F.3d 1162 (10th Cir. 2007). The test for apparent
`13
`
`
`
`

`

`authority is objective: Would “the facts available to the officer at the moment warrant
`
`a [person] of reasonable caution [to believe] that the consenting party had authority
`
`over the premises?” Romero, 749 F.3d at 905 (quoting Illinois v. Rodriguez, 497
`
`U.S. 177, 188 (1990)).
`
`Critical here is the parent-child relationship between Ethan and his father.
`
`When a child—even an adult child—lives in a parent’s home, the parent is presumed
`
`to have “control for most purposes over the property and therefore actual authority to
`
`consent to a search of the entire home.” Id.; see also Rith, 164 F.3d at 1331
`
`(applying presumption and holding that the defendant’s parents had actual authority
`
`to consent to a search of their 18-year-old son’s bedroom). The presumption holds
`
`true unless “rebutted by facts showing an agreement or understanding between the
`
`[child] and the [parent] that the latter must have permission to enter the [child’s]
`
`room.” Rith, 164 F.3d at 1330–31. Relevant facts include a lock on the child’s
`
`bedroom door, an explicit or implicit agreement that the parent will not enter the
`
`room without the child’s consent, and payment of rent by the child. Id.
`
`At the suppression hearing, Reynaldo testified that he had agreed to only enter
`
`Ethan’s bedroom with Ethan’s permission. Tyler also testified about this
`
`arrangement and described how Ethan guarded his privacy by habitually locking his
`
`bedroom door to keep everyone out when he was inside. The government does not
`
`argue those facts are insufficient to rebut the presumption of actual authority.
`
`Instead, it contends that Reynaldo had apparent authority because the agents who
`
`
`
`14
`
`

`

`searched the house were unaware of those facts and thus reasonably relied on the
`
`presumption of control established by Ethan’s relationship with his father. We agree.
`
`At the time of the search, the agents knew Reynaldo owned the house and
`
`permitted Ethan to live there. See Romero, 749 F.3d at 906 (“An owner of a house is
`
`presumed to have control for most purposes of the entire house, including the
`
`bedroom of a [ ]child permitted to live there.”). Although the door to Ethan’s
`
`bedroom had a lock on it, which to some extent undermines Reynaldo’s apparent
`
`authority, the door was wide open when the agents arrived. Ethan never objected to
`
`the search. Neither did Reynaldo or Tyler. And at no point did any of the Guillens
`
`limit where the agents could look.
`
`Even if, as Ethan maintains, the agents knew he occupied the master bedroom
`
`when the search began, they had no way of knowing Reynaldo only entered that room
`
`with Ethan’s permission. When Reynaldo voluntarily consented to the search of the
`
`home, he did not mention the agreement he had with Ethan about access to the master
`
`bedroom. Ethan and Tyler likewise said nothing about any privacy arrangement
`
`amongst the household members. Tyler’s statement that Ethan is “usually in his
`
`room doing his own thing” may shed light on Ethan’s personality, but it raises no
`
`doubt about Reynaldo’s control over his son’s bedroom. Because the agents
`
`reasonably believed Reynaldo had authority to consent, they were not required to
`
`make further inquiries “merely because one can imagine some way that additional
`
`facts might alter their analysis.” Id. at 907.
`
`
`
`15
`
`

`

`Under the totality of the circumstances, the facts known to the agents at the
`
`time of the search created an objectively reasonable perception that Reynaldo had
`
`authority to consent to the search of Ethan’s bedroom. If the agents had learned that
`
`Ethan habitually locked his bedroom door to keep everyone out when he was inside
`
`and that his father did not enter the bedroom without permission, they may no longer
`
`have been justified in relying on Reynaldo’s consent. But the district court found
`
`they did not know those facts when they searched Ethan’s bedroom. This after-
`
`acquired factual knowledge, therefore, has no bearing on the reasonableness of the
`
`agents’ belief in Reynaldo’s authority at the time of the search. Id. at 907–08.
`
`Ethan also contends that even if Reynaldo had apparent authority over the
`
`master bedroom, the agents could not reasonably believe he had authority to consent
`
`to a search of the backpack and nightstand in that room. We reject that argument as
`
`well.
`
`“Common authority over a residence does not necessarily imply common
`
`authority over all locations or objects within the residence.” United States v. Bass,
`
`661 F.3d 1299, 1305 (10th Cir. 2011). But when general authority to consent exists,
`
`“we should not look for ‘metaphysical subtleties’ to define the boundaries of that
`
`authority.” Id. at 1306 (quoting Frazier v. Cupp, 394 U.S. 731, 740 (1969)). Thus, a
`
`“protected expectation of privacy may exist where the defendant has taken some
`
`special steps to protect his personal effects from the scrutiny of others, but does not
`
`unquestionably exist where the co-occupant has ready access (perhaps not theretofore
`
`
`
`16
`
`

`

`exercised) to the place searched.” Id. (quoting 4 Wayne R. LaFave, Search and
`
`Seizure § 8.3(f), at 168–69 (4th ed. 2004)).
`
`Ethan took no “special steps” to protect the backpack or nightstand in his room
`
`from scrutiny. The door to Ethan’s bedroom was wide open when the agents arrived,
`
`and neither the backpack nor the nightstand was locked or otherwise secured. In fact,
`
`the backpack was found lying on the floor of the master bedroom, “hardly an object
`
`shouting ‘Do Not Enter.’” See id. What’s more, Reynaldo—whom the agents knew
`
`was a musician—stored musical equipment and clothes in the master bedroom, which
`
`would make it appear that he had ready access to the room and its contents. In light
`
`of those facts and the apparent authority Reynaldo generally had over Ethan’s
`
`bedroom, the agents reasonably believed Reynaldo’s authority to consent extended to
`
`the search of the backpack and nightstand in that room.
`
`United States v. Salinas–Cano, 959 F.2d 861 (10th Cir. 1992), which Ethan
`
`cites to support his argument, does not persuade us otherwise. In Salinas–Cano, this
`
`court held that a resident of an apartment lacked the authority to consent to the search
`
`of a suitcase her boyfriend (i.e., the defendant) had left there. Id. at 865–66. Prior to
`
`the search, the girlfriend told the police she was not the co-owner of the suitcase and
`
`that it belonged exclusively to the defendant. Id. at 865. Because the couple spent
`
`five nights a week in separate residences, which suggests at least one of them desired
`
`his or her own space and the resulting privacy, we analyzed the case as one in which
`
`a host consents to the search of an object owned by a guest. See id. at 863; see also
`
`Bass, 661 F.3d at 1306. The guest-host relationship is far different from that of a
`17
`
`
`
`

`

`child living in his parent’s home, where the parent is presumed to have control for
`
`most purposes of the child’s bedroom. See Romero, 749 F.3d at 906.
`
`The more instructive precedent here is United States v. Andrus, in which we
`
`held that a father had apparent authority to consent to the search of a computer
`
`located in his adult son’s bedroom. 483 F.3d at 720–22. In Andrus, we likened a
`
`computer to a suitcase, footlocker, and other containers that command a high degree
`
`of privacy. Id. at 718. But we concluded the facts known to the officers when the
`
`search began created an objectively reasonable perception that the father had
`
`authority over the computer. Id. at 722. Those facts included: (1) the defendant’s
`
`father owned the house and lived there with other family members; (2) the father paid
`
`the internet bill; (3) the computer was in the defendant’s bedroom, but the father had
`
`access to the room; (4) the computer was in plain view on a desk and appeared
`
`available for use by other household members; and (5) the father did not do or say
`
`anything to indicate he lacked control over the computer. Id. at 720–21.
`
`The defendant in Andrus argued that the search was unreasonable because his
`
`computer was “locked” to third parties due to its password protection, a fact he said
`
`the officers would have known had they asked questions of his father prior to the
`
`search. Id. at 721. We rejected this argument and declined to place the onus on the
`
`officers to affirmatively ask the defendant’s father if the computer was password
`
`protected before they relied on his consent. Id. Without an affirmative statement by
`
`the father suggesting he did not have authority to access the defendant’s computer,
`
`the officers reasonably believed such authority in fact existed. Id. at 721–22.
`18
`
`
`
`

`

`As in Andrus, the surrounding circumstances known to the agents here would
`
`not cause a reasonable person to doubt Reynaldo’s consent and refrain from acting on
`
`it without further inquiry. Because the agents were reasonable in believing Reynaldo
`
`had the requisite authority to consent to a search of Ethan’s bedroom and its contents,
`
`no Fourth Amendment violation occurred.3
`
`B.
`
`Ethan also alleges violations of his Fifth Amendment rights due to law
`
`enforcement questioning him without providing Miranda warnings. Because the
`
`initial confession Ethan gave before Agent Rominger advised him of his Miranda
`
`rights was suppressed, Ethan’s argument focuses on his post-Miranda statements,
`
`which the district court deemed admissible. Ethan claims the Miranda warnings he
`
`received after his initial confession were insufficient to effectively advise him of his
`
`rights and render his postwarning statements admissible. In addition, Ethan says all
`
`of his incriminating statements, along with the waiver of his Miranda rights, were
`
`involuntary and obtained in violation of the Fifth Amendment.
`
`1.
`
`The Self–Incrimination Clause of the Fifth Amendment guarantees that “[n]o
`
`person . . . shall be compelled in any criminal case to be a witness against himself.”
`
`U.S. Const. amend. V. In Miranda v. Arizona, the Supreme Court concluded that
`
`
`3 We need not address the government’s alternative argument that the evidence
`in Ethan’s bedroom inevitably would have been discovered because the agents would
`have obtained a search warrant absent consent.
`19
`
`
`
`

`

`“the process of in-custody interrogation of persons suspected or accused of crime
`
`contains inherently compelling pressures which work . . . to compel him to speak
`
`where he would not otherwise do so

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket