F I L E D

United States Court of Appeals

Tenth Circuit

APR 28 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff - Appellee,

v. No. 97-2082

AMADOR GUTIERREZHERMOSILLO, 

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. CR-96-329-JC)

Barbara A. Mandel, Assistant Federal Public Defender (Ann Steinmetz, Federal

Public Defender, with her on the briefs), Las Cruces, New Mexico, for DefendantAppellant.

Mick I. R. Gutierrez, Assistant United States Attorney (John J. Kelly, United

States Attorney for the District of New Mexico, with him on the brief), Las

Cruces, New Mexico, for Plaintiff-Appellee.

____________________________

Before PORFILIO, McKAY, and BRISCOE, Circuit Judges.

____________________________

McKAY, Circuit Judge.

____________________________
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Mr. Amador Gutierrez-Hermosillo (Defendant) was indicted on one count

of violating 21 U.S.C. § 841(a)(1) & (b)(1)(B), possession with intent to

distribute 100 kilograms or more of marijuana, and 18 U.S.C. § 2, aiding and

abetting. Defendant pled not guilty to these charges. Defendant filed a Motion to

Suppress Physical Evidence and Statements, which was denied after a hearing. 

See R., Vol. I, Doc. 44. After a trial by jury, Defendant was found guilty and

sentenced to ninety-two months in prison and four years of supervised release. 

See id. Defendant is appealing the trial court’s denial of his Motion to Suppress. 

We affirm.

FACTS

On May 12, 1996, Defendant drove a van into the U.S. Border Patrol

checkpoint on Interstate 10 between Las Cruces and Deming, New Mexico. See

R., Vol. II at 7. Also present in the van were Defendant’s fourteen-year-old

daughter, Nora, and Javier Garcia-Chavez. The occupants of the van were

questioned about their citizenship, and U.S. Border Patrol [USBP] Agent

Armendariz confirmed that Mr. Gutierrez was a lawful permanent resident. See

id. at 41. USBP Agent Alvarado was also present at the Border Patrol station. 

The van was searched and nothing illegal was found, and the van and its

occupants were released. See id. at 8. 

On May 13, 1996, Agent Alvarado was on patrol on New Mexico Highway
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185 when he saw the van driven by Defendant the previous evening being 

followed by a Mazda pickup truck with a Texas license plate. See id. at 8-9. 

Agent Alvarado pulled the van over. The van was now driven by Javier GarciaChavez. Mr. Garcia was questioned about his destination and was allowed to go

on his way. See id. at 9. Agent Alvarado advised other USBP agents that he had

stopped the van detained the previous day at the border checkpoint. See id.

At approximately 2:00 a.m. on May 14, 1996, USBP Agent Armendariz

contacted Agent Alvarado and advised him that he had located a Mazda pickup

truck, potentially the one seen by Agent Alvarado on Highway 185 on May 13, in

the parking lot of the Super 8 motel in Las Cruces. See id. at 49-51. The van

detained at the Border Patrol station on May 12 was parked in the parking lot of

the Motel 6, adjacent to the Super 8 motel. See id. at 11. The agents ascertained

that the truck was listed on the Super 8 motel registration of Defendant. See R.,

Vol. III at 35-36. The agents received permission from the night clerk of the

Super 8 to bring a drug-sniffing dog to the motel parking lot. See R., Vol. II at

11. The drug-sniffing dog alerted to the Mazda truck. See id. at 11, 50. Agent

Armendariz asked the clerk at the Motel 6 located adjacent to the Super 8 if there

was a party named Amador Gutierrez registered at the Motel 6. See R., Vol. III at

37. The clerk replied that there was an individual by that name at the motel. See

id.
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Six additional agents from the USBP and the U.S. Drug Enforcement

Agency [DEA] were called to the scene. See R., Vol. II at 12; Appellant’s Br. at

5. At 6:00 a.m., the eight law enforcement officers divided themselves into two

groups, and one group went to each motel room registered in Defendant’s name. 

See R., Vol. II at 12, 51. At the Super 8 motel, DEA agents Payne and Link, and

USBP agents Armendariz and Torrez, went to Defendant’s motel room. See id. at

29, 45. Agent Payne knocked on the door of the room, and a female answered,

“Who is it?” See id. at 30. The agent replied, “[T]he police,” and the door was

opened. Id. The agent displayed his identification to the female, and he asked if

the officers could enter the room. See id. All four agents then entered the motel

room. See id.

After the officers entered the motel room, Agent Armendariz entered the

bathroom, where Defendant was taking a shower, and told Defendant the officers

would like to speak with him. See id. Agent Armendariz searched Defendant’s

clothes, which were on the floor of the bathroom. See id. at 46. Agent Torrez

noticed car keys on a table inside the motel room. See R., Vol. II at 36, 45; Vol.

V at 4. An officer asked Defendant if he was driving the Mazda truck, and he

replied that he had borrowed the truck from a friend. See R., Vol. II at 31. 

Defendant was told that a drug dog had alerted to the truck, and he was asked if

he would consent to a search of the truck. See id. Defendant consented to have
1

 The Presentence Report states that Defendant was read his Miranda rights before

he was told that a dog had alerted to the truck and before he was asked for permission to

search the truck. See R., Vol. V at 4. However, Agent Payne testified at the evidentiary

hearing that Defendant was not read his Miranda rights until after the officers sought his

consent to search the truck. See R., Vol. II at 37.

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the truck searched. See id. Defendant was then read his Miranda warnings. See

Appellant’s Br. at 6; Appellee’s Answer Br. at 4.1 The search of the Mazda truck

revealed approximately 389 pounds of marijuana hidden in a false bed of the

truck. See R., Vol. V at 4. 

ISSUES ON APPEAL

Defendant contends that the trial court’s denial of his Motion to Suppress

was in error, arguing that the evidence seized from the truck was the result of an

illegal warrantless entry into, and search of, his motel room. See Appellant’s Br.

at 13. The government argues that the entry and search were legitimate because

Defendant’s fourteen-year-old daughter gave her consent to the law enforcement

officers’ entry. See Appellee’s Answer Br. at 5-6. Defendant maintains that his

minor child, Nora, did not have the legal capacity to grant consent to enter the

motel room and that Nora’s consent was not voluntary. See Appellant’s Br. at 13,

20. Defendant argues that the warrantless entry and search violated his rights

under the Fourth Amendment and that the evidence obtained as a result of this

search, including his statements, is therefore subject to the exclusionary rule as

fruit of an illegal warrantless search. See Murray v. United States, 487 U.S. 533,
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536-37 (1988); Wong Sun v. United States, 371 U.S. 471, 488 (1963). Defendant

also contends that the prosecution withheld evidence which was material and

exculpatory and, therefore, under Brady v. Maryland, 373 U.S. 83, 87-88 (1963),

he is entitled to a new trial. See Appellant’s Br. at 32. Defendant also argues

that the failure to disclose this evidence entitles him to a new trial because it is

newly discovered evidence, or, alternatively, that he is entitled to a new trial as an

appropriate sanction against the government for failing to reveal this evidence

pursuant to Federal Rule of Criminal Procedure 16. See id. at 27, 30. Defendant

also asserts that the trial court erred in not holding a hearing to determine

Defendant’s competency to stand trial. See id. at 24.

DISCUSSION

The Fourth Amendment protects a citizen of the United States from

searches that are unreasonable. We review the reasonableness of a warrantless

entry and search under the de novo standard, accepting the trial court’s findings of

fact unless they are clearly erroneous. See United States v. McCurdy, 40 F.3d

1111, 1115 (10th Cir. 1994); United States v. Evans, 937 F.2d 1534, 1536-37

(10th Cir. 1991) (stating that the question of objective reasonableness is a

question of law subject to de novo review). If the officers reasonably believed

that they were given consent to enter the motel room by a third party with the

legal capacity to grant them admittance, then the entry is not unreasonable. See
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Illinois v. Rodriguez, 497 U.S. 177, 186-88 (1990); United States v. Matlock, 415

U.S. 164, 171 (1974). Additionally, any consent granted by a third party must be

voluntary. See United States v. Iribe, 11 F.3d 1553, 1557 (10th Cir. 1993). 

“Voluntariness is a finding of fact, to be determined under the totality of the

circumstances.” United States v. Guzman, 864 F.2d 1512, 1521 (10th Cir. 1989). 

The consent of a third party to a search of common premises is effectual if

the third party has either the actual authority or the apparent authority to consent

to a search. See Rodriguez, 497 U.S. at 188. Whether or not a third party has the

actual authority to grant entry to law enforcement officers is determined by the

test articulated in Matlock. The test is whether the third party has “mutual use of

the property[,] . . . generally ha[s] joint access or control for most purposes[,] . . .

and [whether] the others have assumed the risk that one of their number might

permit the common area to be searched.” Matlock, 415 U.S. at 171 n.7; see also

United States v. McAlpine, 919 F.2d 1461, 1463-64 (10th Cir. 1990).

The Supreme Court’s holding in Rodriguez delineates the proper analysis

for determining whether third-party consent searches are valid under the

“apparent authority” exception. Rodriguez, 497 U.S. at 186-88. Rodriguez held

that the Fourth Amendment is not violated when officers enter without a warrant

when they reasonably, although erroneously, believe that the person who consents

to their entry has the authority to consent to this entry. See id. at 185-89; United
2

 We also note that the Ninth Circuit, in an unpublished opinion, upheld the

district court’s adoption of a magistrate’s conclusion that a fourteen-year-old girl could

grant third-party consent. See United States v. Broaden, 116 F.3d 1486 (Table), 1997 WL

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States v. Rosario, 962 F.2d 733, 736 (7th Cir. 1992). The determination of the

reasonableness of the officers’ belief is an objective one: “[W]ould the facts

available to the officer at the moment . . . warrant a man of reasonable caution [to

believe] that the consenting party had authority over the premises?” Rodriguez,

497 U.S. at 188 (internal quotations omitted); United States v. Salinas-Cano, 959

F.2d 861, 865 (10th Cir. 1992) (“analysis of this subject . . . rests entirely on the

reasonableness of the officer’s belief”). 

Whether, as a matter of law, a minor could consent to the entry is a factor

to consider in deciding the reasonableness of the officers’ belief that their entry

was authorized. “Rodriguez would not validate . . . a search premised upon an

erroneous view of the law.” United States v. Brown, 961 F.2d 1039, 1041 (2d

Cir. 1992), citing United States v. Whitfield, 939 F.2d 1071, 1073-74 (D.C. Cir.

1991). We adopted this interpretation of Rodriguez in Salinas-Cano. See

Salinas-Cano, 959 F.2d at 865-66. If the officers believed that a minor child

could give consent when as a matter of law she could not, Rodriguez would not

validate this search.

The two federal circuit courts that have addressed the issue of the capacity

of minors to consent to searches have reached similar conclusions.2

 The Eleventh
345796, at **2 (9th Cir.), cert. denied, ___ U.S. ___, 118 S. Ct. 353 (1997).

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Circuit held that, as a matter of law, a minor child can give third-party consent to

the entry of law enforcement officers. See Lenz v. Winburn, 51 F.3d 1540, 1548-

49 (11th Cir. 1995). The Eleventh Circuit held that minors do have the capacity

to give consent because: (1) legal sophistication is not required for adults to give

valid consent; (2) the list of factors bearing upon the voluntariness of consent is

open-ended, and “[t]he youth of the consenter, with its attendant vulnerability to

coercion, is certainly among them”; (3) consent searches serve a legitimate

purpose properly balanced against the possible harm of limiting a child’s ability

to consent; and (4) the rationale behind third-party consent does not hinge on

agency, and the “compromise of the expectation of privacy is no less the case for

a minor co-occupant than for an adult.” Id.

The Sixth Circuit held that minors have the capacity to consent to search

the family residence when the minors otherwise satisfy the requirements for thirdparty consent under the Matlock test. See United States v. Clutter, 914 F.2d 775,

778 (6th Cir. 1990) (holding that twelve- and fourteen-year-old boys could grant

access), cert. denied, 499 U.S. 947 (1991). The Sixth Circuit noted, however, that

even if the facts in Clutter did not warrant a finding of capacity to consent, they

were “more than adequate to support a reasonable belief” by the officer that the

children could consent. Id. at 778 n.1.
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We agree that minority does not, per se, bar a finding of actual authority to

grant third-party consent to entry. After analyzing the relevant case law and the

testimony presented at the hearing on Defendant’s Motion to Suppress, we hold

that the officers could reasonably believe that Nora had the authority to allow

them to enter the motel room. Nora appeared to be fourteen years old, and she

answered the door of the motel room. The officers knew that she was traveling in

the company of her father. These facts are sufficient to establish the officers’

reasonable belief that Nora had mutual use of the motel room and that Defendant

assumed the risk that she would permit the officers to enter the motel room.

Nora’s minority is a factor in determining the voluntariness of her consent

to the officers’ entry into the motel room. The trial court’s determination that

Nora’s consent was voluntary is reviewed for clear error. See Ohio v. Robinette,

___ U.S. ___, 117 S. Ct. 417, 421 (1996). “Before a district court may admit

evidence resulting from a consent search, it must determine from the totality of

circumstances that (1) the defendant’s consent was voluntary and (2) the search

did not exceed the scope of the consent.” United States v. Dewitt, 946 F.2d 1497,

1500 (10th Cir. 1991) (citing United States v. Price, 925 F.2d 1268, 1270 (10th

Cir. 1991)), cert. denied sub nom. Rison v. United States, 502 U.S. 1118 (1992). 

The evidence is viewed in the light most favorable to the government. See United

States v. Reed, 40 F.3d 1069, 1078 (10th Cir. 1994) ) (citing United States v.
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McIntyre, 997 F.2d 687, 696 (10th Cir. 1993), cert. denied, 510 U.S. 1063

(1994)), cert. denied, 514 U.S. 1029 (1995). 

Nora’s minority is the basis for Defendant’s argument that her consent to

enter the motel room was involuntary. This is indicated by the transcript of the

suppression hearing and Defendant’s appellate brief. See R., Vol. II at 61-62;

Appellant’s Br. at 16-22. In addition to Nora’s minority, Defendant’s counsel did

mention other circumstances bearing on voluntariness, such as the early hour of

the confrontation and the number of officers present. See R., Vol. II at 61;

Appellant’s Br. at 22. Defense counsel did not argue, either at the suppression

hearing or on appeal, that the officers’ conduct inside the motel room exceeded

the scope of Nora’s consent to enter the motel room. In denying the Motion to

Suppress, the trial court rejected Defendant’s argument that Nora’s consent was

not voluntary. See R., Vol. II at 63. Based on the record before us, we are unable

to conclude that the district court’s conclusion was clearly erroneous. Although

the evidence contained in the record on appeal could support a finding by the trial

court that Nora’s consent was not voluntary and that the officers acted beyond the

scope of Nora’s consent, under the clearly erroneous standard we must affirm if

there is any rational basis for sustaining the trial court. See United States v.

Griffin, 7 F.3d 1512, 1516 (10th Cir. 1993), cert. denied, 515 U.S. 1168 (1995).

Defendant argues that his statements to the officers in the motel room
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should have been suppressed because they were the fruit of a non-consensual, and

thus unreasonable, entry into the room. Because the initial premise of illegal

entry fails, this argument must also fail. In maintaining that Defendant’s

statements and consent to search the truck were not consensual, Defendant’s

counsel cited the fact that Defendant was not free to leave when the officers

began questioning him. See R., Vol. II at 37, 62. Defense counsel also argued

that because Defendant did not receive his Miranda warnings prior to the

questioning or prior to his consent to search the truck, Defendant’s statements

were involuntary. See id. at 62. The trial court expressly rejected these

arguments, finding that all of Defendant’s acts and statements in the motel room

were voluntary. See id. at 64. We hold that the trial court’s determination was

not clearly erroneous.

Defendant contends that the prosecution withheld evidence which was

material to his defense and exculpatory. See Appellant’s Br. at 27, 30. 

Defendant argues that because this evidence was withheld, he was denied due

process of the law, and, therefore, that he is entitled to a new trial under the

holding in Brady v. Maryland, 373 U.S. 83, 86-90 (1963). The evidence at issue

is Defendant’s statement to the officers that the truck was taken from the motel

parking lot by its owner during the night, prior to the discovery of the marijuana. 

See Appellant’s Br. at 28, 32. Defendant’s counsel argues that knowledge of this
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statement would have enabled her to bolster the argument that Defendant had no

knowledge of the drugs in the truck. See id. at 28. Defendant also argues that he

should be granted a new trial because this is “newly discovered evidence” and

that a new trial is required to serve the interests of justice. Id. at 27. 

Additionally, Defendant maintains that the failure to disclose this evidence

violated Federal Rule of Civil Procedure 16 and that the appropriate remedy for

this violation is a new trial. See id. at 30. 

We determine whether Defendant is entitled to a new trial because he has

been deprived of due process, pursuant to Brady, under the de novo standard. See

United States v. DeLuna, 10 F.3d 1529, 1534 (10th Cir. 1993). Under the Brady

doctrine, if the prosecution fails to disclose to defense counsel evidence which is

material and exculpatory, the defendant has been deprived of due process. See id.

at 1534-35. The test for materiality is whether there is a reasonable probability

that disclosure of the statement to defense counsel would have resulted in a

different verdict. See United States v. Abello-Silva, 948 F.2d 1168, 1180 (10th

Cir. 1991) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)), cert.

denied, 506 U.S. 835 (1992). The reviewing court should analyze the evidence

“with an awareness of the difficulty of reconstructing in a post-trial proceeding

the course that the defense and the trial would have taken had the defense not

been misled by the prosecutor’s incomplete response.” Strand v. United States,
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780 F.2d 1497, 1504 (10th Cir. 1985) (McKay, J., dissenting). After a thorough

review of the trial transcript, we hold that there is not a reasonable probability

that had Defendant’s counsel been aware of the evidence at issue, the jury would

have been compelled to return a different verdict. Cf. Banks v. Reynolds, 54 F.

3d 1508, 1518-22 (10th Cir. 1995) (holding failure of prosecution to disclose that

“at least three men had been arrested for the crime that [defendant] was charged

with having committed” violated defendant’s right to a fair trial); Smith v.

Secretary of N.M. Dep’t of Corrections, 50 F.3d 801, 829-30 (10th Cir.) (holding

failure to reveal a report which contained information about physical evidence,

and the identity and motive of a key witness for testifying, violated Brady

doctrine), cert. denied sub nom. Mondragon v. Smith, 516 U.S. 905 (1995).

We review the denial of a motion for a new trial based on newly discovered

evidence for an abuse of discretion. See United States v. Sutton, 767 F.2d 726,

728 (10th Cir. 1985).

A motion for a new trial is not regarded with favor and should only

be granted with great caution. . . . When a motion for a new trial is

based on newly discovered evidence, the defendant is usually

required to show that: (1) the evidence was discovered after trial; (2)

the failure to learn of the evidence was not caused by his own lack of

diligence; (3) the new evidence is not merely impeaching; (4) the

new evidence is material to the principal issues involved; and (5) the

new evidence is of such a nature that in a new trial it would probably

produce an acquittal. 

United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir. 1997) (internal citations
-15-

omitted). Because we have determined that disclosure of the evidence at issue

would not have created a reasonable probability of an acquittal, we hold that the

trial court did not abuse its discretion when it denied Defendant’s motion for a

new trial based on newly discovered evidence.

We also apply the abuse of discretion standard to a trial court’s decision

regarding sanctions for a violation of the rules of discovery. See United States v.

Ivy, 83 F.3d 1266, 1280 (10th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 253

(1996). We hold that there was no abuse of discretion in the trial court’s refusal

to grant a new trial to Defendant to sanction the government for the alleged

discovery violations.

Defendant also argues in this appeal that the trial court should have held a

hearing to determine his competency to stand trial after his counsel expressed

concern about his understanding of the proceedings. 

[A] trial court need not conduct a competency hearing when there has

been only minimal or no evidence of incompetence. In reviewing

whether the trial court should have held a competency hearing, we

must determine “whether a reasonable judge, situated as was the trial

court judge whose failure to conduct an evidentiary hearing is being

reviewed, should have experienced doubt with respect to competency

to stand trial.” . . . To raise a substantial question requiring a

competency hearing there must be some evidence to create doubt on

the issue. Merely raising the issue is insufficient.

United States v. Crews, 781 F.2d 826, 833 (10th Cir. 1986) (internal citations

omitted); see also United States v. Williams, 113 F.3d 1155, 1160 (10th Cir.
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1997). After a thorough review of the record before us, we conclude that the trial

court was not presented with sufficient evidence of incompetence to mandate a

hearing on this issue. 

We hold that the trial court did not err in finding that Defendant’s minor

child had the legal capacity to grant third-party consent to enter the motel room. 

We also conclude that the trial court’s determination that the child voluntarily

consented to the officers’ entry into the motel room was not clearly erroneous. 

Because Defendant’s statements in the motel room and his consent to search the

truck were not the products of an unreasonable search, the denial of the Motion to

Suppress was correct. We hold that there was no error in the trial court’s decision

to deny Defendant a new trial based on newly discovered evidence, the alleged

violations of Federal Rule of Criminal Procedure 16, or under the doctrine of

Brady v. Maryland. Additionally, we hold the trial court’s decisions regarding

Defendant’s competency to stand trial were not in error. Therefore, Defendant’s

conviction is AFFIRMED.