## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 12 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. MARCOS AMABILES PENA,

Defendant - Appellant. No. 97-2112

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D. Ct. No. CR-96-470-SC)
Joseph W. Gandert, Assistant Federal Public Defende r, Albuquerque, New Mexico, for Defendant-Appellant. Renee L. Camacho, Assistant U.S. Attorney, Las Cruc es, New Mexico, (John J. Kelly, U.S. Attorney, and Charles L. Barth, Assistant U.S. Attorney, Albuquerque, New Mexico, on the brief), for Plainti ff-Appellee.

Before PORFILIO, HOLLOWAY, and TACHA, Circuit Judge s.
TACHA, Circuit Judge.

Defendant Marcos Pena was convicted of possession w ith intent to distribute five grams or more of cocaine base in vi olation of 21 U.S.C.- 2 -

§§ 841(a)(1) and 841(b)(1)(B), and 18 U.S.C. § 2(a) . Prior to trial, Pena filed a motion to suppress evidence, but the district courtdenied the motion. He appeals that denial, asserting that he did not consent to t he search during which the police found the drugs that he was convicted of possessing , and that even if he did give his consent, the officers’ search exceeded the scop e of his consent. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. I. Facts On March 8, 1996, Albuquerque Police Department Off icer Stephen Devoti was dispatched to the Friendship Inn to investigate a report from an anonymous caller that two Cubans were dealing drugs out of Ro om 312. Officer Devoti learned at the front desk of the motel that the roo m was registered under the defendant’s name. For the next two hours, Devoti o bserved the room from a park across the street from the motel. Then, Officer De voti, accompanied by three other officers, went to the door of the room, knock ed, and identified himself in Spanish as a police officer. The defendant opened the door. Officer Devoti asked Pena whether he spoke English, and Pena said that h e did, though Pena later testified that he does not understand much English. Devoti testified that he believed Pena understood what Devoti said in Englis h without difficulty. In English, Devoti told Pena that the police had recei ved complaints about the room, that there was too much foot traffic to and from th e room, and that he could smell- 3 -

marijuana. According to Devoti, Pena stated that h e and a friend, Luis Gonzalez, had smoked marijuana but that it was all gone. At the suppression hearing, Pena denied that this conversation occurred. Devoti testified that he then asked Pena, “You woul dn’t mind if I looked then, if I had a look in the room?” On cross-exami nation, Devoti was unable to recall the exact form of the permission Pena gave, but he testified that Pena said “something to the effect, ‘Yeah, go ahead.’” Pena testified to the contrary. He said that he gave the officers permission to enter the motel room but never gave them permission to search the room. Devoti then told Pena to sit down on the bed with G onzalez, who was still in the room with Pena. While Devoti watched Pena a nd Gonzalez, fellow officers Michael Sullivan and Lawrence Horan entered the bathroom. They saw two marijuana cigarettes floating in the toilet. The o fficers then placed Pena and Gonzalez under arrest. Officer Sullivan went back into the bathroom and removed a ceiling tile in the bathroom above the to ilet and found a bag of marijuana. Officer Horan inserted his head into th e hole where the ceiling tile had been and found two bags of crack cocaine. Afte r he discovered the crack cocaine, Officer Horan transported Pena and Gonzale z to jail. II. Discussion On appeal, the defendant first asserts that he did not freely and voluntarily- 4 -

consent to the search of his motel room. Second, h e argues that even if he did consent to the search, the officers exceeded the sc ope of that consent by searching the bathroom and above the ceiling in the bathroom. When reviewing a district court’s grant or denial of a motion to suppress, we accept the court’s findings of fact unless clearly erroneous and consider the evid ence in the light most favorable to the government. See United States v. Elliott , 107 F.3d 810, 813 (10th Cir. 1997). A. Consent to Search The officers did not have a warrant to search the m otel room. While a police search conducted without a warrant would con stitute a violation of the Fourth Amendment in other circumstances, it is well settled that “one of the specifically established exceptions to the requirem ents of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973). Thus, the pivotal issu e here is whether Pena gave the officers consent to search the motel room, including the bathroom. Valid consent is that which is “‘freely and voluntarily given.’” Id. at 222 (quoting Bumper v. North Carolina , 391 U.S. 543, 548 (1968). Whether a defendant fr eely and voluntarily gave his consent to a search is a q uestion of fact and is determined from the totality of the circumstances. United States v. Santurio , 29 F.3d 550, 552 (10th Cir. 1994) (citing United State s v. Mendenhall , 446 U.S. 544,- 5 -

557 (1980)). The district court found “that consent was given, that the Defendant did understand the request by Officer Devoti to look ar ound, to examine, to check the room . . . .” Tr. Vol. III at 128-29. The defenda nt asserts that this finding was clearly erroneous and that he did not freely and vo luntarily give his consent because, among other reasons, (1) his alleged respo nse to the search request, “go ahead,” was not unequivocal and specific; (2) the d efendant’s lack of understanding of English inhibited him from intelli gently giving his consent; (3) the police failed to inform him that he could have refused or withdrawn his consent; and (4) the defendant was confronted with four armed officers when Officer Devoti asked him for his consent to search. The government has the burden of proving valid cons ent to a warrantless search. United States v. Cody , 7 F.3d 1523, 1526 (10th Cir.1993). First, it mus t present “clear and positive testimony that consent was unequivocal and specific and freely and intelligently given.” United States v. Angulo-Fernandez , 53 F.3d 1177, 1180 (10th Cir.1995) (citations and internal quotation marks omitted). Second, the government must show that the police di d not coerce the defendant into granting his consent. See id. Under the first step of this two-part test, the go vernment presented clear and positive testimony that Pena gave his specific and unequivocal consent to1 The district court’s credibility determination on this issue is bolstered by the

court’s finding that the defendant was less than candid in regard to at least one other subject. There is evidence in the record that the defendant was not truthful in responding to questions regarding a conversation between him and Officer Horan about his gold watch. According to Horan’s testimony, en route to the jail Horan asked Pena the cost of the watch he was wearing. When asked about this conversation at the suppression hearing, Pena said, “I don’t remember a watch. I don’t use a watch, I don’t use a watch.” The district court then requested a copy of Pena’s inventory list from the jail to determine if he was wearing a watch when he was arrested. A copy of the inventory was introduced. It indicated that Pena was wearing a watch when he was booked into jail. The court noted that “what that exhibit reveals to me is that the Defendant has been less than forthcoming - 6 - search the motel room, and that he did so freely an d intelligently. In response to Officer Devoti’s question, “You wouldn’t mind if I looked then, if I had a look in the room,” Pena responded with words to the effect of “go ahead.” At the suppression hearing, the defendant denied ever givi ng this response. On appeal, he renews that assertion and also argues that the g overnment did not meet the first step of the two-part test because his response of “ go ahead,” if actually said, was not unequivocal and specific and because his lack o f understanding of English inhibited him from intelligently giving his consent

. The district court simply did not believe Pena’s co ntention that he did not acquiesce when the officers requested to search the room. “Evaluation of the credibility of witnesses, the weight to be given th e evidence, and inferences to be drawn from the evidence are for the district court. ” United States v. Hernandez , 93 F.3d 1493, 1498 (10th Cir. 1996). Thus, we defe r to the district court’s evaluation of the defendant’s credibility on this m atter. 1in connection with the testimony concerning the watch . . . .” Tr. Vol. III at 117. - 7 - In addition, contrary to Pena’s argument that his a lleged response of “go ahead” was not unequivocal and specific, we find th at the district court properly concluded that the statement was an unequivocal and specific consent. The statement was in direct response to Officer Devoti’ s request to search the room. Further, Pena’s assertion that his lack of understanding of English kept him from intelligently consenting to the search is without m erit. The record demonstrates that Pena spoke and understood more than enough Eng lish to know what Devoti asked him. Devoti testified that Pena, although he had a strong accent, had no trouble conversing with him in English. Officer Ho ran testified that he had a conversation in English with Pena while en route to book him into jail. Pena asked Horan in English whether money seized from hi m would be returned. Horan and Pena also discussed the gold watch Pena w as wearing. At one point during the government’s cross-examination of Pena at the suppression hearing, the court noted that Pena answered a question that had been asked in English before it was translated for him. There was extensive testimony to serve as a basis f or the district court’s finding that the defendant freely and intelligently gave his specific and unequivocal consent to the search. Pena’s argument s do not undermine the court’s finding. The district court did not believ e the defendant’s assertion that- 8 -

he did not consent to the search, nor did the distr ict court believe Pena’s contention that he does not speak English or that h is statement of “go ahead” was not a clear response to Officer Devoti’s specific r equest to search. We cannot say that the district court clearly erred in finding th at Pena freely and intelligently gave specific and unequivocal consent to search his motel room. Turning to the second part of the two-step test, we hold that the government proved the police did not coerce the defendant into granting his consent to search. In determining whether a consent to search was free from coercion, a court should consider, inter alia, physical mistr eatment, use of violence, threats, threats of violence, promises orinducements, deception or trickery, and the physical and mental condition and capacity of the defendant within the totality of th e circumstances. An officer's request for consent to search does nottaint an otherwise consensual encounter “as long as the police do not convey a message that compliance with their request is required.” United States v. McCurdy , 40 F.3d 1111, 1119 (10th Cir. 1994) (quoting Unit ed States v. Griffin , 7 F.3d 1512, 1517 (10th Cir. 1993)). Pena does n ot assert that the police resorted to any of these tactics. Rathe r, he contends that the police coerced him to consent because they failed to infor m him that he could have refused or withdrawn his consent and because he was confronted with four armed officers when Devoti asked for his consent. Both of these factors are relevant in determining w hether a detainee’s consent to search was free from coercion. See United States v.- 9 -

Sanchez-Valderuten , 11 F.3d 985, 990 (10th Cir. 1993) (declaring thatfailure to advise defendant of his right to refuse consent to search is only one factor in determining whether consent was voluntary); United States v. Davis , 40 F.3d 1069, 1078 (10th Cir. 1994) (recognizing that prese nce of several officers in “home might be intimidating to the point of negatin g the voluntariness of consent in some situations”). Nevertheless, we find that the district court did not clearly err in determining that the police did not coerce t he defendant into granting his consent. Although Officer Devoti came to Pena’s mo tel room with three other armed officers, none of the officers unholstered hi s firearm. The officers all remained outside the motel room until Pena gave the m permission to enter. Pena does not assert, and the record does not support a conclusion, that the police officers conducted themselves in an unprofessional manner. We affirm the district court’s determination that the defendant c onsented to the search of his motel room. B. Scope of Consent The defendant argues that even if he did consent to the search, the police exceeded the scope of that consent by searching the bathroom of the motel room. The standard for measuring the scope of an individu al’s consent to search is that of “objective reasonableness,” asking what the typi cal reasonable person would have understood to be the scope of his or her conse nt under the circumstances.- 10 -

Florida v. Jimeno , 500 U.S. 248, 251 (1991). The scope of a consentto search “is generally defined by its expressed object, and is l imited by the breadth of the consent given.” United States v. Elliott , 107 F.3d 810, 814-15 (10th Cir.1997) (citations and internal quotation marks omitted). We view the evidence in the light most favorable to the government and must uph old a district court’s finding that a search is within the boundaries of the conse nt unless it is clearly erroneous. Id . In this case, the district court found that Pena ’s consent to look into the motel room included the officer’s search of the bathroom. The court stated: [L]ooking into the bathroom and into that toilet bo wl where the marijuana cigarettes were found[] was . . . implied when the officer was permitted to examine, quote, the room. We are talking about a motel room, we are talking about the accommodation there and the bathroom is part of the accommodations. Tr. Vol. III at 129. We agree with the district co urt. A reasonable person would think that when he gives consent to search a motel room, his consent includes the small bathroom attached to the main room. We further conclude that the district court did notclearly err in finding that the defendant’s “go ahead” response to Officer Devo ti’s request to “look in” the motel room reasonably included a search into the ar ea above the bathroom ceiling. Three factors persuade us in reaching this latter c onclusion. First, at no point did Pena object to the officers’ search of the bathroom . He was not under arrest when Officers McDonald and Cannon went to the bathroom t o conduct their search,- 11 -

though he was in the room. His failure to object t o the officers’ entrance into and search of the bathroom “may be considered an indication that the search was within the scope of the consent.” United States v. Espinoza , 782 F.2d 888, 892 (10th Cir. 1986). Second, we have consistently held that similarly ph rased requests for consent to search are requests for a full search of the premises. See United States v. Anderson , 114 F.3d 1059, 1065 (10th Cir. 1997) (holding that by giving officer consent to “scout around” his vehicle, defendant authorized full search of it, including underneath and around it); United States v. McRae , 81 F.3d 1528, 1537- 38 (10th Cir. 1996) (concluding that defendant’s co nsent to officer’s request to “look in” his car gave officer authorization to sea rch the car, including lifting up carpeting in the trunk of the car); United States v . Espinosa , 782 F.2d 888, 892 (10th Cir.1986) (concluding that defendant's consent to officer’s request to “look through” defendant’s automobile authorized officer to conduct thorough search of vehicle). Third, because Officer Devoti asked for Pena’s cons ent immediately after Pena had admitted to smoking marijuana in the motel room, it was clear to Pena that the object of the search was to find illegal n arcotics. One in possession of illegal drugs does not typically leave them out in the open. Consent to an officer’s request to search for drugs would reasonably include areas in which one- 12 -

would be expected to hide drugs. Because Pena cons ented to a search for drugs, he consented to a search of any area in the motel r oom where one might hide drugs. See United States v. Mains , 33 F.3d 1222, 1227 (10th Cir. 1994) (holding that because defendant consented to search of apart ment for another person, he consented to search of any area large enough to acc ommodate that individual). Officer Horan testified at the suppression hearing that police typically search above the ceiling tiles in hotel rooms because thatis a common hiding place for illicit drugs. Thus, Officer Devoti’s request to “ look in” the motel room, in these circumstances, would reasonably be understood to in clude a thorough search of the room, including the space above the bathroom ce iling. III. Conclusion We conclude that the district court did not clearly err in determining that the defendant consented to the search of his motel room. We also conclude that the district court did not clearly err in finding t hat the defendant’s consent extended to the motel room’s bathroom, including th e space above the bathroom ceiling. Accordingly, we AFFIRM the district court ’s denial of the defendant’s motion to suppress.