## 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. 97-2082AMADOR 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 Defende r (Ann Steinmetz, Federal Public Defender, with her on the briefs), Las Cruce s, 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.

____________________________-2-

Mr. Amador Gutierrez-Hermosillo (Defendant) was ind icted on one count of violating 21 U.S.C. § 841(a)(1) & (b)(1)(B), pos session 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 charg es. Defendant filed a Motion to Suppress Physical Evidence and Statements, which wa s denied after a hearing. See R., Vol. I, Doc. 44. After a trial by jury, Defen dant was found guilty and sentenced to ninety-two months in prison and four y ears 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 Def endant’s fourteen-year-old daughter, Nora, and Javier Garcia-Chavez. The occupants of the van were questioned about their citizenship, and U.S. BorderPatrol [USBP] Agent Armendariz confirmed that Mr. Gutierrez was a lawfu l permanent resident. See id. at 41. USBP Agent Alvarado was also present at th e 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 Ne w Mexico Highway-3-

185 when he saw the van driven by Defendant the pre vious evening being followed by a Mazda pickup truck with a Texas licen se plate. See id. at 8-9. Agent Alvarado pulled the van over. The van was no w driven by Javier GarciaChavez. Mr. Garcia was questioned about his destin ation and was allowed to go on his way. See id. at 9. Agent Alvarado advised other USBP agents th at he had stopped the van detained the previous day at the bo rder checkpoint. See id. At approximately 2:00 a.m. on May 14, 1996, USBP Ag ent Armendariz contacted Agent Alvarado and advised him that he ha d located a Mazda pickup truck, potentially the one seen by Agent Alvarado o n 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 regi stration of Defendant. See R., Vol. III at 35-36. The agents received permission from the night clerkof the Super 8 to bring a drug-sniffing dog to the motel p arking lot. See R., Vol. II at 11. The drug-sniffing dog alerted to the Mazda tru ck. See id. at 11, 50. Agent Armendariz asked the clerk at the Motel 6 located a djacent to the Super 8 if there was a party named Amador Gutierrez registered at th e Motel 6. See R., Vol. III at 37. The clerk replied that there was an individual by that name at the motel. See id.-4-

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 officer s divided themselves into two groups, and one group went to each motel room regis tered 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 roo m, 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 fem ale, 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 Ar mendariz 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 drivi ng the Mazda truck, and he replied that he had borrowed the truck from a frien d. See R., Vol. II at 31. Defendant was told that a drug dog had alerted to t he truck, and he was asked if he would consent to a search of the truck. See id. Defendant consented to have1 The Presentence Report states that Defendant was read his Mirandarights before

he was told that a dog had alerted to the truck and before he was asked for permission to search the truck. SeeR., Vol. V at 4. However, Agent Payne testified at the evidentiary hearing that Defendant was not read his Mirandarights until after the officers sought his consent to search the truck. SeeR., Vol. II at 37. -5- the truck searched. See id. Defendant was then read his Mirandawarnings. 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 hidd en 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 se arch were legitimate because Defendant’s fourteen-year-old daughter gave her con sent 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 an d search violated his rights under the Fourth Amendment and that the evidence ob tained as a result of this search, including his statements, is therefore subj ect to the exclusionary rule as fruit of an illegal warrantless search. See Murray v. United States , 487 U.S. 533,-6-

536-37 (1988); Wong Sun v. United States , 371 U.S. 471, 488 (1963). Defendant also contends that the prosecution withheld evidenc e 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 fai ling 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 hold ing a hearing to determine Defendant’s competency to stand trial. See id. at 24. DISCUSSION The Fourth Amendment protects a citizen of the Unit ed States from searches that are unreasonable. We review the reas onableness 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 obje ctive 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 roo m by a third party with the legal capacity to grant them admittance, then the e ntry is not unreasonable. See-7-

Illinois v. Rodriguez , 497 U.S. 177, 186-88 (1990); United States v. Mat lock , 415 U.S. 164, 171 (1974). Additionally, any consent gr anted 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 determin ed 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 ha s 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 thatone 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 searche s are valid under the “apparent authority” exception. Rodriguez , 497 U.S. at 186-88. Rodriguez held that the Fourth Amendment is not violated when offi cers 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; United2We 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. SeeUnited States v. Broaden , 116 F.3d 1486 (Table), 1997 WL -8- States v. Rosario , 962 F.2d 733, 736 (7th Cir. 1992). The determination of the reasonableness of the officers’ belief is an object ive one: “[W]ould the facts available to the officer at the moment . . . warran t a man of reasonable caution [to believe] that the consenting party had authority ov er the premises?” Rodriguez , 497 U.S. at 188 (internal quotations omitted); Unit ed States v. Salinas-Cano , 959 F.2d 861, 865 (10th Cir. 1992) (“analysis of this s ubject . . . 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 o fficers’ 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 coul d 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 simil ar conclusions. 2 The Eleventh345796, at **2 (9th Cir.), cert. denied , ___ U.S. ___, 118 S. Ct. 353 (1997). -9- Circuit held that, as a matter of law, a minor chil d 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 sea rches serve a legitimate purpose properly balanced against the possible harmof 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 p rivacy 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 sati sfy the requirements for thirdparty consent under the Matlocktest. See United States v. Clutter , 914 F.2d 775, 778 (6th Cir. 1990) (holding that twelve- and fourt een-year-old boys could grant access), cert. denied , 499 U.S. 947 (1991). The Sixth Circuit noted, ho wever, that even if the facts in Clutterdid not warrant a finding of capacity to consent, they were “more than adequate to support a reasonable be lief” by the officer that the children could consent. Id. at 778 n.1.-10-

We agree that minority does not, per se, bar a find ing of actual authority to grant third-party consent to entry. After analyzin g the relevant case law and the testimony presented at the hearing on Defendant’s M otion to Suppress, we hold that the officers could reasonably believe that Nor a 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 suffici ent to establish the officers’ reasonable belief that Nora had mutual use of the m otel 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 volu ntariness of her consent to the officers’ entry into the motel room. The tr ial 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 d etermine 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 S tates v. Dewitt , 946 F.2d 1497, 1500 (10th Cir. 1991) (citing United States v. Pric e , 925 F.2d 1268, 1270 (10th Cir. 1991)), cert. deniedsub 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 Uni ted States v.-11-

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 argume nt that her consent to enter the motel room was involuntary. This is indi cated 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 mi nority, Defendant’s counsel did mention other circumstances bearing on voluntarines s, such as the early hour of the confrontation and the number of officers presen t. See R., Vol. II at 61; Appellant’s Br. at 22. Defense counsel did not arg ue, either at the suppression hearing or on appeal, that the officers’ conduct in side 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 argu ment 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 wa s clearly erroneous. Although the evidence contained in the record on appeal coul d 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 erroneou s standard we must affirm if there is any rational basis for sustaining the tria l 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 officer s in the motel room-12-

should have been suppressed because they were the f ruit of a non-consensual, and thus unreasonable, entry into the room. Because th e initial premise of illegal entry fails, this argument must also fail. In main taining that Defendant’s statements and consent to search the truck were notconsensual, 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 argue d that because Defendant did not receive his Mirandawarnings 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 determinati on was not clearly erroneous. Defendant contends that the prosecution withheld ev idence 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 enti tled 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 t ruck 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 ar gues that knowledge of this-13-

statement would have enabled her to bolster the arg ument 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 “newl y 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 B rady doctrine, if the prosecution fails to disclose to d efense counsel evidence which is material and exculpatory, the defendant has been de prived of due process. See id. at 1534-35. The test for materiality is whether th ere 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 reconstruct ing in a post-trial proceeding the course that the defense and the trial would hav e taken had the defense not been misled by the prosecutor’s incomplete response .” Strand v. United States ,-14-

780 F.2d 1497, 1504 (10th Cir. 1985) (McKay, J., di ssenting). 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 evid ence 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 t o 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 informat ion about physical evidence, and the identity and motive of a key witness for te stifying, violated Brady doctrine), cert. deniedsub nom. Mondragon v. Smith , 516 U.S. 905 (1995). We review the denial of a motion for a new trial ba sed 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 favorand should only be granted with great caution. . . . When a motion for a new trial is based on newly discovered evidence, the defendant i s usually required to show that: (1) the evidence was discove red 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 impea ching; (4) the new evidence is material to the principal issues in volved; and (5) the new evidence is of such a nature that in a new tria l it would probably produce an acquittal. United States v. Sinclair , 109 F.3d 1527, 1531 (10th Cir. 1997) (internal ci tations-15-

omitted). Because we have determined that disclosu re 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 de nied Defendant’s motion for a new trial based on newly discovered evidence. We also apply the abuse of discretion standard to atrial 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 discret ion in the trial court’s refusal to grant a new trial to Defendant to sanction the g overnment 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 heari ng when there has been only minimal or no evidence of incompetence. In reviewing whether the trial court should have held a competen cy hearing, we must determine “whether a reasonable judge, situate d as was the trial court judge whose failure to conduct an evidentiaryhearing is being reviewed, should have experienced doubt with respec t to competency to stand trial.” . . . To raise a substantial quest ion requiring a competency hearing there must be some evidence to c reate 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.-16-

1997). After a thorough review of the record befor e 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 c onsent to enter the motel room. We also conclude that the trial court’s determinati on that the child voluntarily consented to the officers’ entry into the motel roo m was not clearly erroneous. Because Defendant’s statements in the motel room an d his consent to search the truck were not the products of an unreasonable sear ch, 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 discov ered 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 decision s regarding Defendant’s competency to stand trial were not in e rror. Therefore, Defendant’s conviction is AFFIRMED

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