UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. KYMBERLI LAMBERT, Defendant - Appellant. No. 08-4202 (D. Utah) (D.C. No. 2:07-CR-00925-DAK-1 )

ORDER AND JUDGMENT *

Before HENRY , Chief Circuit Judge, MURPHY , and O’BRIEN , Circuit Judges.
Kymberli Lambert pled guilty to being a felon in possession of a firearm, preserving her right to appeal from the district court’s denial of her motion to suppress. The court denied Lambert’s motion because it concluded she voluntarily consented to the police officers’ entry into her motel room and the subsequent search of her possessions, which led to the discovery of the firearm. On appeal, Lambert does not challenge the officers’ entry into her motel room but cont ends her consent to search her possessions

* This order and judgment is an unpublis hed decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit December 15, 2009 Elisabeth A. Shumaker Clerk of Court- 2 - was invalid. We affirm. I. BACKGROUND At approximately 10:30 p.m. on December 5, 2007, Salt La ke City Police Officers Devin Fredrickson Stutz and Neil Carson received a call from dispatch stating it had received a complaint that a woman at the Allstar Motel was trying to sell a laptop computer and a firearm. Carson contacted th e complainant and learned the seller’s name was Shelby and she was fleeing from some kind of criminal charge. Stutz called Shelby’s cell phone number. No one answer ed but Stutz listened to the voicemail greeting. Stutz and Carson drove to the motel, a rriving at approximately 11:00 p.m. The front desk clerk informed them Shelby Reming ton was registered in Room 164. Stutz and Carson knocked on the door of Room 164 at approximatel y 11:30 p.m. The door was an exterior door, facing the pa rking lot. The lights in the room were off. It was “very cold outside.” (R. Supp. Vol. I at 17.) The officers were wearing their uniforms and their firearms were holstered. Lambert answered the door wearing only a bathrobe and identified herself as Shelby Remington. The officers engaged in an “investigative type of conversation” with Lambert outside of her room. ( Id. at 18.) The officers told Lambert about the information they received and asked her if she was in possession of a nine millimeter firearm. She said she was not. Neither officer raised his voice or touched Lambert. The officers did not ask Lambert if they could enter her room. After approximately ten to fifteen minutes of questioning, Lambert “asked [the- 3 - officers] to come inside because of the cold.” ( Id. at 19.) Stutz could not remember Lambert’s exact words but testified: “I believe we were just standing there, and she said, it’s cold. It’s cold ou tside. Do you guys wa nt to come in?” ( Id. at 44.) The officers entered the motel room, which contained two beds in the main area, a small back bedroom, a bathroom and a closet. Lambert sat on the bed closest to the door. Stutz testified the lights were on though it is not clear who turn ed them on; he testified it was “[p]robably” him or Carson. ( Id. at 51.) The officers continued questioning Lambert. They asked her for her identifica tion but she stated it ha d been stolen; they asked for her social security number but she said she had not memorized it. Stutz asked Lambert if she was fleeing from a criminal ch arge or a warrant and she denied that she was. The officers asked Lambert if she had a cell phone; she stated she did not. Stutz thought it was strange Lambert had no t reported her identification as stolen and had not memorized her social security nu mber. He also thou ght her voice was the same one he had heard on the voicemail gree ting when he called the phone number given by the complainant. The offi cers again asked Lambert whether she had a cell phone. She stated she did have a phone and had forgot she had it with her. Lambert asked the officers if she could sm oke a cigarette. Th ey informed her she could not. Stutz noticed Lambert’s “barel y open” purse on the floor between the two beds in the main room. ( Id. ) He walked up to it and shin ed his flashlight into it. Lambert did not ask the officers to leave. Stutz testified she did not appear to be intimidated. At this point, Lambert was still wearing on ly her bathrobe. Carson asked her to- 4 - get dressed because her lack of clothing “m ade [the officers] feel uncomfortable.” ( Id. at 23.) Carson looked in the bathroom “[t]o make sure there was no weapon” and then asked her to change in the bathroom. ( Id. at 50.) Lambert began to change without closing the door. Stutz testified this made the officers feel uncomfortable so “[w]e asserted several times to her that she needed to close the door while she was changing, and eventually she heed ed to our request and closed [t he door] while she changed.” ( Id. at 24.) The officers contacted their supervisor, Sergeant Randy Kent Bushman, because of their continuing discomfo rt and their belief Lambert wa s being untruthful. Before Bushman arrived, Lambert produced a birth cer tificate in the name of Shelby Remington with the date of birth Lambert had given as her own. Bushman arrived at approximately 12:36 a. m., five to ten minutes after he was called. Bushman and Carson stayed in the room ; Stutz went to his vehicle to see if he could verify Lambert’s statem ent that she was from Pocatello , Idaho. He contacted the police department in Pocatello and learned there was no person with the name “Shelby Remington” in Idaho. He also contacted th e individual identified as the owner of the vehicle parked outside Lambert’s hotel room. That individual stated she had sold the vehicle to Shelby Remington. Meanwhile, Bushman began questioning La mbert, informing her Stutz and Carson “didn’t think she was telling the truth” and th ought “maybe she had something to do with . . . selling the gun and the laptop on the street.” ( Id. at 68.) She denied having a gun or a laptop and said: “You can check.” ( Id. at 69.) Bushman did not ask for permission to- 5 - search. He testified: “She suggested, I conf irmed, told her she could show me around. She got off the bed and comme nced in showing me.” ( Id. ) Lambert began showing Bushman around th e room. She opened “duffle bags and sacks and other luggage”; she “pulled a few it ems out just showing there was no way to conceal a laptop size piece of equipment.” ( Id. at 70-71.) There was one bag remaining—a large black nylon su itcase sitting at the foot of one of the beds. Lambert approached the bag, opened it, “moved some thing in the front . . . and very quickly closed [the bag] again.” ( Id. at 73.) Bushman observed th e corner of a leather pistol pouch, which he recognized from his fifteen years’ experience with firearms. Bushman directed Lambert not to open the suitcase again and asked her about the pistol pouch. Lambert “made a gesture” indicating it was a pistol. ( Id. at 75.) Bushman recovered a 9 millimeter firearm from the bag but did not arre st Lambert at that time because “[w]e had nothing to suggest that she was illegally possessing it.” ( Id. ) After the weapon was discovered, Lamber t opened a large purse which contained “a small plastic container, very typical for carrying ID, credit cards, things of that nature.” ( Id. at 87.) Stutz asked Lambert if she had any identification in the case. Bushman testified “[s]he became very upset at that point. She said that there were pictures in there that she would rather us no t see, and no, we couldn’t look at that. We left it at that point.” ( Id. at 87-88.) Bushman asked Lambert why she had lied to him about the firearm and stated he doubted the truthfulness of her story. Lamb ert admitted she had lied about the pistol but said she had told the truth about everythi ng else. Bushman suggested a crime lab- 6 - technician check Lambert’s fingerprints in a national database to determine “if she was wanted somewhere”; “if she wasn’t, then we would leave her alone and get out of her hair.” ( Id. at 76.) The officers contacted a crime lab techni cian who arrived at the motel at 1:39 a.m., took Lambert’s fingerprints, and left at 2:36 a.m. Th e technician obtained a match in a national database. She called Bushman and described some tattoos that Bushman used to verify Lambert’s id entity. The technician advise d Bushman that Lambert had multiple outstanding warrants. The officers arrested her. Lambert was indicted on one count of bei ng a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and one count of be ing a fugitive in possession of a firearm in violation of 18 U.S. C. § 922(g)(2). She filed a motion to suppre ss the firearm found in her motel room argui ng: (1) the officers lacked probable cause to enter her room; (2) she did not “freely, knowingly, a nd voluntarily” consent to the officers’ entry into her room; and (3) if she did validly cons ent to the officers’ en try into her room, the officers ignored her instruction not to search her room or certain specific items located therein. (R. Vol. I at 11.) The court held an evidentiary hearing at which Stutz and Bushman testified. Following the hearing, both parties filed me moranda in support of their respective positions. The government ar gued Lambert freely and volu ntarily consented to the officers’ entry into and subsequent search of her motel room and their search did not exceed the scope of her consen t. Lambert argued her consen t was not valid. She did not claim she was seized.- 7 - The court held oral argument on the moti on to suppress. Following the hearing, it denied Lambert’s motion, conclu ding her “invitation to officer s to enter [her] motel room was unequivocal, specific, and freely given w ithout coercion or duress and, therefore, was voluntarily given.” (R. Vol. I at 48.) It also conclude d her consent to search the motel room was “unequivocal, specific, and freely given” and the officers did not exceed the scope of the consent. ( Id. at 49-50.) Following the denial of her motion, Lambert pled guilty to one count of being a felon in possession of a firearm pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, thereby preserving her ri ght to appeal from the denial of her motion to suppress. She was senten ced to 37 months imprisonment. II. DISCUSSION On appeal, Lambert contends she did not voluntarily consent to the search of her possessions because: (1) she provided cons ent following an illegal seizure and the consent was not sufficiently a ttenuated from the Fourth Am endment violation; and (2) even if she was not illegally seized, her consent was not voluntar y because it was the product of coercion. 1 “In assessing a denial of a motion to suppress, this court accepts the factual findings of the district court, and its determination of witness credibility, unless they are clearly erroneous.” United States v. Chavez , 534 F.3d 1338, 1343 (10th Cir. 2008) (quotations omitted), cert. denied , 129 S. Ct. 953 (2009). We “review[ ] the evidence in the light most favor able to the government.” Id. (quotations omitted).

1 Lambert does not challenge the offi cers’ entry into her motel room.- 8 - A. Illegal Seizure Lambert contends she was seized in viol ation of the Fourth Amendment because a reasonable person in her position would not have felt free to te rminate the encounter with the officers and the officers did not have reas onable suspicion to believe a crime had been or was being committed. She c ontends the government did no t meet its heavy burden of proving her subsequent consen t to search her possessions was sufficiently attenuated from the Fourth Amendment viol ation to be voluntary. Lambert did not argue her seizure was ille gal before the district court. The government contends she cannot make this argument for the first time on appeal. “We have repeatedly declined to allow parties to assert for the first time on appeal legal theories not raised before the district cour t, even when they fall under the same general rubric as an argument presented to the district court.” United States v. A.B. , 529 F.3d 1275, 1279 n.4 (10th Cir.), cert. denied , 129 S. Ct. 440 (2008). Th e problem here is even more fundamental because it has to do with the scope of La mbert’s appellate waiver. A conditional guilty plea reserves only “the righ t to have an appellate court review an adverse determination of a specified pretrial motion.” Fed. R. Crim. P. 11(a)(2). In analyzing whether a defendant’s conditional guilty plea constitu tes a waiver of the right to assert a new argument in support of a su ppression motion on appeal, this court applies the three-pronged test announced in United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004) (en banc). See United States v. Anderson , 374 F.3d 955, 957 (1 0th Cir. 2004). We consider: “(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his- 9 - appellate rights; and (3) whether enforcing th e waiver would result in a miscarriage of justice.” Hahn , 359 F.3d at 1325. Lambert does not contend she did not knowingly and voluntarily waive her appellate rights; nor does she argue enforcin g her appellate waiver would result in a miscarriage of justice. Instead, she argues the issue she seeks to raise on appeal is not within the scope of the appellate waiver becau se it is implicit in the argument she raised before the district court. Lambert seeks to argue her consent to the search of her possessions was involuntary because it follo wed—and was not sufficientl y attenuated from—an illegal seizure. Though she had multiple occasions to do so, she never raised this argument in the district court. 2 Instead, she argued she did not vo luntarily consent to the officers’ entry into her motel room and the subsequent search of her possessions and even if she did validly consent to the sear ch, it exceeded the scope of her consent. Lambert contends whether she was illegally seized is a relevant consideration in determining whether her consent to search was voluntary; she claims “it is another aspect of the voluntariness inquiry conducted by the district court.” (A ppellant’s Reply Br. at 1.) Thus, while she concedes “the district court did not reach an explicit conclusion regarding whether [she] had been detained,” she conten ds such conclusion was implic it in the court’s decision. ( Id. at 4.) We disagree. While the two arguments are related, they are not the same. “A person who is

2 Lambert could have raised this argum ent in her motion to suppress, in the memorandum she submitted followi ng the evidentiary hearing or at oral argument on the motion to suppress.- 10 - being detained may still give a voluntary cons ent, but if the detention is illegal, the government must prove that the primary taint has been purged and th at the consent was in fact voluntary. The government ’s burden is therefore heavier if the detention is illegal.” United States v. McRae , 81 F.3d 1528, 1537 (10th Cir. 1 996) (citations omitted). Here, the district court did not decide whether an y detention was illegal or, of that matter, whether the government had proved the primary taint fro m any illegal detention had been purged. That is because Lambert never argued she was illegally detained. “A reservation of the right to appeal a specific pretrial ruling by the district court extends only to theories raised in the challenged ruling.” United States v. Ochoa-Colchado , 521 F.3d 1292, 1299 (10th Cir. 2008). Lambert cannot raise a new, though related, argument on appeal because the argument falls outside the scope of her reserved appellate rights. See Anderson , 374 F.3d at 957-58 (concluding defe ndant could not raise a new argument in support of motion to suppress on appeal). B. Product of Coercion Even if she was not illegally detained, Lambert contends her consent to search was not voluntary because it “was obt ained only after the conduc t of the police had made it manifest that they could issue orders to her without explanation or justification and search portions of her room and belongings without asking for permission . . . .” (Appellant’s Opening Br. at 27 .) She states she “belie[ved] . . . she had no alternative to consent.” ( Id. ) Lambert did raise this argument be fore the district court and so we consider it. “Overnight guests . . . of motel rooms po ssess reasonable expectations of privacy- 11 - in the property on whic h they are staying.” United States v. Kimoana , 383 F.3d 1215, 1221 (10th Cir. 2004). While the Fourth Amendment gene rally prohibits searches conducted without a warrant, “[o]ne of the specifical ly established exceptions to the requirements of both a warrant and probable caus e is a search that is conducted pursuant to consent.” Id. (quotations omitted). “When the government relies on a defendant’s consent for the validity of a search, the government bears the burden of proving that defendant’s consent was freely and voluntarily given, a determ ination we make by evaluating the totality of the circumstances.” United States v. Sanchez , 89 F.3d 715, 718 (10th Cir. 1996). “We have developed a two-step test for determining th e voluntariness of a consent to search: the government must (1) proffer clear and positiv e testimony that consent was unequivocal and specific and freely and inte lligently given and (2) prove th at this consent was given without implied or express duress or coercion.” Id. at 719 (quotations omitted). “Whether [Lambert] freely and voluntar ily consented to the search of [her possessions] is a question of fact based on th e totality of the circumstances, which we review for clear error.” United States v. Rosborough , 366 F.3d 1145, 1149 (10th Cir. 2004). “A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evid ence is left with the definite and firm conviction that a mistake has been committed. The clearly-erroneous standard is significantly deferential.” United States v. Cruz-Mendez , 467 F.3d 1260, 1265 (10th Cir. 2006) (quotations and citation omitted). In determining whether consent was coer ced, we consider factors such as:- 12 - the threatening presence of several o fficers; the brandishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that comp liance with an officer’s request is compulsory; prolonged retention of a person’s personal effects . . . ; a request to accompany the officer to the station; interaction in a nonpublic place or a small, enclosed place; a nd absence of other members of the public. United States v. Guerrero , 472 F.3d 784, 790 (10th Cir. 2007) (quotations omitted). Three of these factors suggest Lambert’s cons ent might have been coerced, but we are not “left with the definite and firm conv iction that a mistake has been committed.” CruzMendez , 467 F.3d at 1265. Lambert was questioned by two officers outside her motel room and there were two officers present in Lamber t’s motel room when she cons ented to the search of her possessions. We have recognized “the pres ence of two police officers in a home might be intimidating to the point of negating the volu ntariness of consent in some situations.” United States v. Davis , 40 F.3d 1069, 1078 (10th Cir. 19 94). This is not one of those situations as there is nothing in the record to suggest the presen ce of multiple police officers was threatening. The officers did not brandish their weapons, did not touch Lambert, did not use aggressive language or an aggressive tone of voice , and did not retain any of Lambert’s personal effects. Moreover, Lambert’s demeanor was pleasant and she did not appear intimidated at any point prior to the discovery of her true identity. See McRae , 81 F.3d at 1537 (concluding defendant ’s consent was vol untary, noting he “seemed relaxed throughou t the entire encounter”). Also potentially suggestive of coercion is the fact the officers interacted with Lambert in a nonpublic place—her motel room —in the absence of any other members of- 13 - the public. However, the officers did not ask to enter Lambert’s motel room. Instead, they began their questioning of Lambert in pu blic, outside of her motel room. It was Lambert who invited the officers to enter he r room. It was also Lambert who told Sergeant Bushman he could “che ck” to see whether she had so mething to do with selling the gun and the laptop. (R. Supp. Vol. I at 69.) Bushman did not expressly request Lambert’s consent, which suggests La mbert’s consent was not coerced. See Rosborough , 366 F.3d at 1149 (concluding defendant’s co nsent to the search of his vehicle was voluntary where, inter alia , the officer did not ask defendant for consent to search; “to the contrary, [the defendant] hi mself volunteered permission to [the officer] to search his car”). Lambert argues: “The police . . . indicated, both implicitly and explicitly, that they would not leave until [she] provided them with sufficient information to persuade them she was being truthful, making it clear that [s he] was not free to terminate the encounter with them.” (Appellant’s Opening Br. at 9.) The government does not contend the officers informed Lambert she had a right not to allow Bush man to search her belongings, but that is immaterial . “The fact that officers do not specifically inform an individual that he or she has the right to refu se to consent to a search does not render that search coercive.” Davis , 40 F.3d at 1078. It would be odd for an officer to inform an individual she does not have to consent to a search when he never asks for her consent in the first place. In any case, it appears La mbert was aware she did not have to allow the officers to search her belongin gs. After the officers located the firearm, Lambert told the officers they could not look in her ID case and they “left it at that point.” (R. Supp. Vol. I- 14 - at 87-88.) Lambert’s instruction suggests sh e did not feel unable to revoke or limit her

consent. See Rosborough , 366 F.3d at 1149 (the fact de fendant “affirmatively asked to terminate the encounter” after a canine aler t “undermin[ed] his claim that he felt unable to revoke his consent”). Lambert claims her consent was coerced because the officers’ commanding presence in her motel room stripped her of control and plainly suggested she had no choice but to submit to the officers’ continue d questioning and consent to a search of her possessions. Her argument is not without merit. The officers (proba bly) turned on the lights in her motel room; they denied her re quest for permission to smoke (in her room); they briefly looked into her open purse without her consen t; they thought she was lying and told her so; they searched the bathroom for weapons; th ey then ordered her to get dressed in the bathroom with the door clos ed. While we understand how these actions could create a coercive environment, for the mo st part, the officers appear to have been motivated by legitimate concerns and did not act unreasonably. We understand why two male officers might have be en uncomfortable in the presence of a minimally-clothed woman in a darkened motel room, motivating them to turn on the lights and ask Lambert to get dresse d. Given the size and layout of the motel room, the bathroom was not an unreasonable pl ace for Lambert to get dressed. Though Lambert might have wanted to keep an eye on the officers while she changed clothes, the officers were reasonably and understandably concerned wh en she began to undress without closing the door. Officer Stutz tho ught Lambert might have been creating “some kind of situation.” (R. Supp. Vol. I at 25.)- 15 - We are likewise relatively untroubled by the officers’ search of Lambert’s open purse (by briefly shining a light into it). Th e officers were responding to a report of a woman attempting to sell a firearm and a laptop. They were thus legitimately concerned Lambert had a weapon and they believed (not unreasonably, as it turns out) she was not answering their questions truthfully. The s earch of Lambert’s purse was permissible. See Cruz-Mendez , 467 F.3d at 1266 (“[A]n officer’s mere observation of an item left in plain view . . . generally in volves no Fourth Amendment sear ch. For a mere observation to be valid, the only requirement is that the officer be lawfully in a position from which he can view the object.”) (quotations and cita tion omitted). The fact the officers used a flashlight to illuminate the purse doe s not render the search unlawful. See id. (“[T]he use of [artificial means] to illumi nate a darkened area . . . does not constitute a search, and thus triggers no Fourth Amendment protection.”) (quotations omitted). The officers’ search of th e bathroom cannot be so easily justified. While it appears to have been motivated by a legitimate concern for officer safety, it was not a protective sweep because it was not conduc ted incident to Lambert’s arrest. See United States v. Walker , 474 F.3d 1249, 1254 (10th Cir. 2 007) (“[A] ‘protec tive sweep’ of a residence to ensure officer sa fety may take place only inci dent to an arrest.”). The officers searched the bathroom before the firearm was discovered and before asking Lambert to enter the bathroom unsupervised. Th e search of the bathroom appears to have been unlawful, but that is not the question we are ca lled upon to determ ine. No evidence was discovered in the bathroom search and ou r review is limited to determining whether Lambert’s consent was coerced. Though the officers may ha ve exceeded the scope of- 16 - their authority in searching the bathroom, we pe rceive no clear error in the district court’s conclusion that Lambert’s subse quent consent to search her belongings was not coerced. Similarly, the government does not clai m the officers had a legitimate basis for denying Lambert’s request to smoke. This is cause for concern as it suggests Lambert felt the need to ask permission fo r an action she should have been able to take in her own room and felt the need to obey the officers’ di rective not to smoke. It is particularly troubling when considered in conjunction with the other asse rtions of authority made by the officers. But Lambert does not directly ch allenge the officers’ denial of her right to smoke and, in evaluati ng whether her consent was coerced, we are to consider the totality of the circumstances. Here, those circumstan ces include Lambert’s express invitation to Officers Stutz and Carson to enter her motel r oom and her express i nvitation to Sergeant Bushman to search her belongings. Thos e circumstances also include Lambert’s instruction not to search her ID case, an in struction which the offi cers respected. Our review is highly deferential and, viewing th e circumstances as a whole, we perceive no clear error in the district court’s conclusi on that Lambert’s consent to search her possessions was voluntary and not coerced. AFFIRMED. Entered by the Court: Terrence L. O’Brien United States Circuit Judge