United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3631

___________ United States of America, * * Appellee, * Appeal from the United States * District Court for the v. * District of South Dakota. * David J. Schwarting, * [UNPUBLISHED] * Appellant. *

___________ Submitted: June 6, 1997 Filed: July 16, 1997

___________ Before HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.

___________ PER CURIAM. Dav id J. Schwarting was charged with burglary in Indian Country, in violation of 18 U. S.C. §§ 1151 and 1153, and being a felon in possession of a firearm, i n violation of 18 U.S.C. §§ U.S.C. 922(g)(1) and 924(a)(2). The charges were brought after t ribal officers searched the residence Schwarting leased from his father, an d discovered rifles that had been stolen during a residential burglary the pr evious evening. Schwarting later confessed to the burglary. Schwarting subsequently filed a motion to suppres s, arguing that the warrantless search of his leased residence violated his Fourth Amendment rights, and that hisThe Hon orable Marshall P. Young, United States Magistrate Judge for th e 1 District of South Dakota. The Honorable Richard H. Battey, Chief Judge, United States District Court for 2 the District of South Dakota. -2- subsequent confession was the fruit of the illegal sea rch. He also moved to dismiss the indictment on the ground that the tribal officers who conducted th e search were without jurisdiction ov er the property, because it was fee patent and non-Indian owned, being deeded to and personally owned by his father. Followin g a hearing before a magistrate judge, the district court den ied both motions. Schwarting entered a conditional guilty

1 2 plea, and was sentenced to 100 months imprisonment and three years supervise d release, and ordered to pay $350 in restitution. Schwarting appeals the district court's denial of both motions.
We c onclude the district court was correct in denying Schwarting's motion t o dismiss. Tribal officers had jurisdiction over the proper ty searched, even though it was fee patent and non-Indian owned, because it was within the Pine Ridge India n Reservation's outer bounda ries. See 18 U.S.C. § 1151(a); Seymour v. Superintendent of Wash. State Penitentiary , 368 U.S. 351, 357-58 (1962). We also conclude th e warrantless search of the residence was constitutional because the uncontradicte d evidence at the suppression hearing was that the investigating officer had obtaine d c o nsent to search from both Schwarting and his father. See United States v. Ball , 90 F. 3d 260, 262 (8th Cir. 1996) (motion-to-suppress standard of review); Illinois v

. Rodriguez , 497 U.S. 177, 181 (1990); United States v. Wright , 971 F.2d 176, 180 (8th Cir

. 1992). Consequently, we conclude that the seizure of the weapons from th e residence was constitutional, see Wright , 971 F.2d at 180 ("authority to consent to a search of a general area obviously extends to objects in plain view within the area"), and that there is no basis for Schwarting's argument that his confession was illegall y tainted.-3-

We do not consider the affidavit Schwarting appended to his appellate brief. See Terry v. Young , 932 F.2d 1273, 1273 (8th Cir. 1991) (per curiam) (appellate court need not consider evidence raised for first time on appeal). Accordingly, we affirm. A true copy.
Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.