UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.NORA ASUSENA AMADORBELTRAN, Defendant - Appellant. No. 15-2216 (D.C. No. 1:15-CR-01019-JB-1) (D.N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, EBEL and LUCERO , Circuit Judges.

________________ _________________ Nora Amador-Beltran appeals the denial of her motion to s uppress. Exercising jurisdiction under 28 U.S. C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
I In March 2015, Drug Enforcement Ag ent Jarrell Perry boarded a Greyhound bus during a stopover in Al buquerque, New Mexico. He greeted Amador-Beltran, who indicated she did not speak English fluently. The two thus conversed in Spanish. Although Perry is not fluent in Spanish, he has some proficiency in investigative questions. He identified himself as a polic e officer and asked whether

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 20, 2016
Elisabeth A. Shumaker Clerk of Court2 Amador-Beltran would allo w him to speak with her. She responded in the affirmative. Perry stood in the row behind Am ador-Beltran’s seat during the conversation. He was in plain clothes, unaccompanied by other o fficers, and did not have a visible weapon. He was also wear ing a recording device that captured their discussion. Perry spoke in a conversational tone throughout the encounter. After discussing Amador-Beltran’s trav el plans, Perry as ked if she would “allow [him] to search for contraband in [h er] luggage.” Amado r-Beltran replied, “Yes,” and handed Perry a bag. Perry sear ched the bag and returned it. The same exchange occurred with Amador-B eltran’s purse and pillow. Perry then noticed what he thought was a blanket under Amador-Beltran’s leg. He asked, “And will you allow me to search for contraband in your uh . . . uh . . . uh . . . blanket?” Amador-Beltran pulled the item from under her and asked, “Sweater?” Perry responded, “Oh, OK, jacket?” Althou gh the transcript of the recording shows the final word Perry spoke as “chamarra” (jacket), Ama dor-Beltran contends that Perry did not respond with a Spanish word at all, but instead said something like “eschura.” Amador-Beltr an said yes and handed Perry the sweater. Perry felt a fanny pack in one of the sl eeves of the sweater. He removed the pack from the sweater, unz ipped it, and observed two rectangular brick-shaped bundles wrapped in plas tic and aluminum foil. Amador-Beltran did not object or otherwise interfere during the search. The bundles were later determined to contain heroin.3 Amador-Beltran was charged with possession with inte nt to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). After the district court denied her motion to suppress, she pl ed guilty pursuant to a plea agreement. She reserved her right to appeal the denial of her motion to suppress and does so now.
II In reviewing the denial of a motion to suppress, we accept the district court’s findings of fact unless clearly erroneous, and view the evidence in the light most favorable to the government. United States v. Garcia, 707 F.3d 11 90, 1194 (10th Cir. 2013). The ultimate determination of whether a Fourth Amendment violation occurred is reviewed de novo. Id. Wh ether consent was voluntarily provided is a factual question reviewed for clear error. See United States v. Harrison, 639 F.3d 1273, 1277 (10th Cir. 2011). And a “district court’ s conclusion that a search is within the boundaries of a defendant’s c onsent is a factual fi nding that this court reviews for clear erro r.” United States v. Jackson, 381 F.3d 984, 988 (10th Cir. 2004). However, we review de novo whether consent wa s validly given. United States v. Andrus, 483 F.3d 711, 716 ( 10th Cir. 2007). Our court applies a two-pronged test to determine whether consent was valid: “(1) [t]here must be . . . clear and pos itive testimony that consent was unequivocal and specific and freely given; and (2) [t ]he government must prove consent was given without duress or coerci on, express or implied.” United States v. Guerrero, 472 F.3d 784, 789 (10th Cir. 2007) (quotation omitted). Amador-Beltran advances arguments as to both prongs.4 First, Amador-Beltran contends that sh e did not unequivocally provide consent to search her sweater and fanny pack due to language difficulties. See e.g., United States v. Benitez-Arreguin, 973 F.2d 823, 825, 829 ( 10th Cir. 1992) (reversing district court’s denial of motion to suppress in which an officer searched after making “hand motions toward the bags held by the defendant to indicate that he wanted to look”). “To satisfy the first prong of th e voluntariness require ment, a defendant’s consent must be clear, but it need not be verbal. Consent ma y instead be granted through gestures or other indications of ac quiescence, so long as they are sufficiently comprehensible to a reasonable officer .” Guerrero, 472 F.3d at 789-90. Even assuming that Perry responded to Amador-Beltran with an unintelligible word just prior to th e search of the sweater, the cont ext of their exchange makes her consent clear. After Perry asked for, and received, permission to search various other items, he asked Amador-Beltran for permis sion to search what he believed was a blanket. Amador-Beltran understood that he was asking for permi ssion to search the sweater, and manifested her consent by handing it to him. We thus conclude that Amador-Beltran’s consent was clear. Amador-Beltran also argues that even if she consen ted to a search of her sweater, that consent did not extend to the fanny pack. “The search of a container does not exceed the scope of consent when, under the circumstances of the particular case, it was objectively reasonable for the o fficer to believe that the scope of the suspect’s consent permitted him to open the container.” Jackson, 381 F.3d at 988. “A defendant’s failure to li mit the scope of a general au thorization to search, and5 failure to object when the search exceeds what he later claims was a more limited consent, is an indication that the search was within the sc ope of consent.” Id. By handing the fanny pack, albeit wra pped in a sweater, to Perry without limiting the scope of her consent, Amado r-Beltran sufficiently manifested her permission to search the fanny pack. Se e Florida v. Jimeno, 500 U.S. 248, 251 (1991) (because “[a] reasona ble person may be expected to know that narcotics are generally carried in some form of a cont ainer,” unlimited cons ent to search for contraband in an object includes permission to search containers within that object). We reject Amador-Beltran ’s contention that her c onsent was not unequivocally given. We also reject her argument that failure to object is meaningless absent evidence that a defendant observed the se arch. There is no claim that Perry attempted to block Amador-Beltran’s view of the search. Cf. United States v. McWeeney, 454 F.3d 1030, 1033, 1036 (9th Cir. 2006) (officers ordered defendants to look elsewhere during search of vehicle). If Amador-Be ltran elected to look away during the search, which occurred a few feet from her, that fact would support a finding of unlimited consent. We conclude Amador-Be ltran’s consent was freely given, and reject any ar gument to the contrary. As to the second prong, Amador-Beltran claims her consent was implicitly coerced. In determining the validity of consent, the rele vant question is whether “a reasonable person would believe he was free . . . to deny the officer’s request to search.” Guerrero, 472 F.3d at 790. We ha ve identified a number of factors relevant to this inquiry. See United States v. Thompson, 546 F.3d 1223, 1226 (10th Cir.6 2008) (providing non-exhaustive li st of factors). All but one of these factors tips in favor of the government. Amador-Beltran was in a public place in view of other passengers, Perry did not touch her or block her into her seat, he was wearing plain clothes, his weapon was concealed, he wa s the only officer pres ent, he used an ordinary tone in speaking, and he im mediately returned Amador-Beltran’s identification and bus ticket before asking to search her luggage. Perry did not advise Amador-Beltran of her right to dec line consent, but this factor alone is not dispositive. See id. at 1228 (rejecting ar gument that “all police encounters [are] nonconsensual where officers faile d to advise individuals of their right not to comply with their requests” and stating that “the of ficer’s failure to advise [defendant] should carry little weight in our an alysis”). Viewing the totalit y of the circumstances, we conclude Amador-Beltran’s consent was freely given and not coerced. See United States v. Drayton, 536 U. S. 194, 198-99, 207 (2002) ( holding consent voluntary under similar facts).
III AFFIRMED

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Entered for the Court

Carlos F. Lucero Circuit Judge