UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JUAN VARGAS, Defendant-Appellant. No. 17-3029 (D.C. No. 6:13- CR-10193-JTM-1) (D. Kan.)

__________________ _______________ ORDER AND JUDGMENT *

__________________ _______________ Before HARTZ , BALDOCK , and BACHARACH , Circuit Judges.

__________________ _______________ This appeal grew out of a car search. The search yielded methamphetamine concealed in a spare tire in Mr. Juan Varg as’s trunk. Mr. Vargas moved to suppress evidence of the methamphetam ine on the ground that law enforcement o fficers had exceeded the scope of consent when searching the contents of the spare tire. The district court denied the motion, finding that the o fficers obtained pr obable cause to search the tire during the part of the s earch conducted with Mr. Va rgas’s consent. With

* This order and judgme nt does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be ci ted for its persuasive value under Fed. R. App. P. 32.1(a) and Tenth Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### December 28, 2017 Elisabeth A. Shumaker Clerk of Court2 this finding, Mr. Vargas pleaded guil ty to possession of methamphetamine with intent to distribute. 1 On appeal, Mr. Vargas argues that the eviden ce should have been suppressed because his consent had not extended to the s earch of his trunk. In addition, he faults the district court for failing to make further findings on the scope of hi s consent. But in district court, Mr. Vargas did not challenge the o fficers’ look inside the trunk. Thus, he forfeited his present argument on the scop e of his consent, and the dist rict court had no need to make findings on this issue. We affirm. I. The Search of the Trunk Mr. Vargas was stopped for speedi ng and asked if he had any drugs in the car. He said “no.” The officer asked if he could “look real quick,” and Mr. Vargas re plied “sure.” After looking inside the car, tw o officers opened the trunk. One officer noticed that the spare tire was not secured in the tire well, that the tire’s tread had worn down, that there were tool ma rks on the rim, and that the spare tire was a different brand than the rest of the tires. The officer removed the spare tire, bounced it on the ground, and heard something shift in the tire wh en it bounced. The s ound led the officer to believe that there were drugs in the tire, so he poked a hole in the tire and saw gray

1 Mr. Vargas preserved his right to appeal the denial of his motion to suppress.3 duct tape, plastic baggie s, and white powder. The entire search took about two minutes. Authorities eventually found five bundles of methamphetamine in the tire. Mr. Vargas moved to suppress th e evidence, arguing that the search exceeded the scope of his consent when the officers searched and destroyed the spare tire. The district court denied the motion to suppre ss, reasoning that the officers obtained pr obable cause to search th e tire during the part of the search conducted wi th Mr. Vargas’s consent. On appeal, Mr. Vargas contends that (1) the sear ch of the trunk exceeded the scope of his consent a nd (2) the district court’s findings on consent were insufficient . Mr. Vargas forfeited th e first contention. With this forfeiture, the district court had no reason to make further findings on

consent. II. Standard for Forfeiture of an Appellate Issue An appellate issue is forfeited when it is not timely asserted in district court. See Hamer v. Neighborhood Hous. Servs. of Chi. , ___ U.S.

___, 138 S. Ct. 13, 17 n.1 ( 2017) (“[F]orfeiture is th e failure to make the timely assertion of a right.” (quoting United States v. Olano , 507 U.S. 725, 733 (1993)) (alteration in original)). Thus, an argu ment for suppression of4 evidence is forfeit ed when presented for the first time on appeal. United States v. Brooks , 438 F.3d 1231, 1240 (10th Cir. 2006). 2 To preserve the issue, an appellan t’s argument in district court must go beyond “vague, a ll-encompassing stat ements that fail to alert the . . . court to the issue eventually raised on appeal.” United States v. Rodebaugh , 798 F.3d 1281, 1313 ( 10th Cir. 2015). Inst ead, the appellant must “make ‘sufficiently definite, specific, detailed and nonconjectural factual allegations s upporting’” a claim. United States v. White , 584 F.3d 935, 949 (10th Cir. 2009) (quoting United States v. Gambino-Zavala , 539 F.3d 1221, 1227 n.2 (10th Cir. 2008)). III. Forfeiture of Mr. Vargas’s Argu ment Involving Consent to Look Inside the Trunk Mr. Vargas makes two contentions for preservation of his argument that he didn’t consent to a search of the trunk: 1. He adequately raised the issue be fore the district court in his motion to suppre ss the evidence. 2. The question of consent to look inside the trunk is antecedent to the claim raised in district court. Both contenti ons fail.

2 The government characterizes the failure to pres ent the current argument in district cour t as a waiver (rather th an forfeiture) based on Federal Rule of Criminal Procedure 12( c)(3). Because Mr. Vargas failed to request plain-error review, we would decline to consider his argument regardless of whether it had been forfeited or waived. See Richison v. Ernest Grp. , 634 F.3d 1123, 1131 (10th Cir. 2011). Thus, we assume (without deciding ) that the failure to preser ve the current argument in district court would result in a fo rfeiture rather than a waiver.5 A. Sufficiency of Mr. Vargas’s Presentation of His Current Argument in District Court According to Mr. Vargas , he argued in district court that he had not consented to a search of the trunk. The motion to suppress summarized Mr. Vargas’s arguments about th e scope of hi s consent: One, no reasonable person would believe the consent given in this case would allow an officer to destroy the sp are tire. And, two, Mr. Vargas’s consent to “t ake a look real quick” did not allow the officers to go into th e trunk and cut open a mounted tire. R. vol. 1, at 14. Mr. Va rgas characterizes the two sentences as challenges to the scope of his consent on

 the destruction of the tire and

 the look inside his trunk. Otherwise, he says the two sentences would involv e duplicative challenges to the destruction of the tire. Mr. Va rgas is incorrect for two reasons. First, even if Mr. Vargas presen ted two different arguments on the scope of his consent, it does not ne cessarily follow that one of these arguments addressed the search of his trunk. It is undispu ted that the first sentence objected to the destruction of the tir e. But the s econd sentence can be read as an objection confined to the removal and cutting of his tire. The reference to the trunk arguably indicated only where the spare tire was located.6 But let’s assume that Mr . Vargas is ri ght about the stated difference in his two points. It woul dn’t matter: We are not parsing his words as we might when interpreting a contrac t; we are reviewing his words to determine whether Mr. Vargas adequate ly presented his current argument in district court. The district court should not ha ve to dig in to possible differences between the two sentences to figure out that Mr. Vargas was disputing consent to look in th e trunk. His perfunctory objection to the search of the trunk did not provide the district court with a fair opportunity to rule on the issue, for Mr. Vargas made no arguments for why his consent was limited to the interior of the car and cited no case law supporting such an argument. 3 Thus, Mr. Vargas’s “‘arguable refere nce[ ] to [the] po int in district court proceedings [does] not . . . preserve the issue on appeal.’” Lyons v. Jefferson Bank & Tr. , 994 F.2d 716, 721 (10t h Cir. 1993) (quoting Monarch Life Ins. Co. v. Elam , 918 F.2d 201, 203 (D.C . Cir. 1990)) (omission in original).

3 Mr. Vargas contends that he cited United States v. Ledesma , 447 F.3d 1307 (10th Cir. 2006), as support for hi s argument that th e consent had not extended to a search of the trunk. His parenthetical citation explains that this case “rel[ied] on probable cause, not consent, to support a search behind the interior panels of a van when the initial co nsent was for ‘bags and stuff.’” R. vo l. 1, at 19. The Ledesma court’s statements about interior panels and hidden compartments relate to the search of a mounted spare tire containing hidden contraband, not an obvio us, unconcealed trunk.7 Even if Mr. Vargas ar gued to the district court that his consent did not extend to a search of the trunk, the argu ment was undeveloped, unsupported, and insufficient to avoid forfeiture. B. Preservation of an An tecedent Question Mr. Vargas also argues that his objection was pres erved because the search of the trunk is a qu estion antecedent to the claim raised in district court (that the cons ent did not cover the search and destruction of the tire). Mr. Vargas is incorrect. He relies on Lebron v. Nati onal Railroad Pa ssenger Corp. , 513 U.S. 374 (1995). There th e Supreme Court held that if an issue is not properly raised in a certiorari petiti on, the Court can still consider that issue if it is “both prior to the clearly presented question and dependent upon many of the same factual inquiries” as the clearly presented question. Lebron , 513 U.S. at 382. We have applied Lebron only once in a prece dential opinion, holding that we can consider an entity theory on appeal when antecedent to an agency theory raised in district court. United States v. Ackerman , 831 F.3d 1292, 1298-99 (10th Cir. 2016 ). Mr. Vargas’s reliance on Lebron is misguided

. Lebron provides that to pr eserve an antecedent question not raised in district court, the ques tion must involve the same factual inquiry as the clearly presented issue. Lebron , 513 U.S. at 382. Here , however, different factors would bear on consent to (1) look inside the tr unk and (2) cut open8 the tire. Indeed, in hi s motion to suppress, Mr. Vargas cited cases addressing only whether the scope of consent exte nds to the removal and destruction of property. These cases were directly related to the search and destruction of the tire bu t only tangentiall y related to the search of the trunk. Thus, Lebron does not preclude forfeiture of Mr. Vargas’s appellate argument. IV. Sufficiency of the Fi ndings on Consent Mr. Vargas also challenges the su fficiency of the district court’s findings on consent to look inside the trunk. Th e court stated that the officers’ search was lawful only if “the ‘officers obtained probable cause to search the tire during the portion of the search to which the defendant did consent.’” R. vol. 1, at 39 (quoting United States v. Carbajal-Iriarte , 586 F.3d 795, 802-03 (10th Cir. 2009)). We reject Mr. Vargas’s challenge to the sufficiency of the finding. When a motion raises a factual issue, the district court “must state its essential findings on the record.” Fed. R. Crim. P. 12(d). This requirement is satisfied “as long as the essentia l basis of the court’s decision is apparent.” United States v. Toro-Pelaez , 107 F.3d 819, 824 (10th Cir. 1997). In our view, the requirement was sa tisfied. In district court, Mr. Vargas did not question c onsent to look inside the trunk . Instead, he argued that consent to take “a real quick look did not include taking a9 knife to a mounted spare tir e that was in th e trunk.” R. vol. 1, at 19. In response, the governm ent argued that Mr. Vargas’s consent had “extended to the entire vehicle.” Id . at 27. Mr. Vargas did no t argue to the contrary. The district court focused on consen t to cut the tire because that was what Mr. Vargas had disputed. The dist rict court did not make findings on consent to look inside the trunk beca use that was not at issue. Thus, the district court did not err in declini ng to make express findings on consent to look inside the trunk. V. Conclusion Mr. Vargas forfeited hi s argument that the scope of his consent had not extended to a search of the trunk. First, in his motion to suppress in district court, Mr. Vargas objected only to the sear ch and destruction of the tire, not to the sear ch of the trunk. Se cond, Mr. Vargas di d not preserve the argument by raising an antecedent issue. Thus, Mr . Vargas forfeited his appellate argument involv ing consent to l ook inside the tr unk. Because Mr. Vargas forfeited this argu ment, the district court had no reason to make further findings on cons ent. Thus, we affirm.

Entered for the Court

Robert E Bacharach Circuit Judge