UNITED STATES COURT 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 Vargas’s trunk. Mr. 

Vargas moved to suppress evidence of the methamphetamine on the ground 

that law enforcement officers had exceeded the scope of consent when 

searching the contents of the spare tire. The district court denied the 

motion, finding that the officers obtained probable cause to search the tire 

during the part of the search conducted with Mr. Vargas’s consent. With 

 

*

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited 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 Court
2 

this finding, Mr. Vargas pleaded guilty to possession of methamphetamine 

with intent to distribute.1

 

 On appeal, Mr. Vargas argues that the evidence should have been 

suppressed because his consent had not extended to the search of his trunk. 

In addition, he faults the district court for failing to make further findings 

on the scope of his consent. But in district court, Mr. Vargas did not 

challenge the officers’ look inside the trunk. Thus, he forfeited his present 

argument on the scope of his consent, and the district court had no need to 

make findings on this issue. We affirm. 

I. The Search of the Trunk 

Mr. Vargas was stopped for speeding 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 replied “sure.” 

 After looking inside the car, two 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 marks 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 when it bounced. The sound 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 baggies, 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 the 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 suppress, reasoning 

that the officers obtained probable cause to search the tire during the part 

of the search conducted with Mr. Vargas’s consent. 

 On appeal, Mr. Vargas contends that (1) the search of the trunk 

exceeded the scope of his consent and (2) the district court’s findings on 

consent were insufficient. Mr. Vargas forfeited the 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 the 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 argument for suppression of 
4 

evidence is forfeited 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 appellant’s argument in district court must 

go beyond “vague, all-encompassing statements 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). Instead, the appellant 

must “make ‘sufficiently definite, specific, detailed and nonconjectural 

factual allegations supporting’” 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 Argument 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 before the district court in his 

motion to suppress the evidence. 

2. The question of consent to look inside the trunk is antecedent 

to the claim raised in district court. 

Both contentions fail. 

 

2

 The government characterizes the failure to present the current 

argument in district court as a waiver (rather than 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 preserve the current argument in 

district court would result in a forfeiture 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 the scope of his consent: 

One, no reasonable person would believe the consent given in 

this case would allow an officer to destroy the spare tire. And, 

two, Mr. Vargas’s consent to “take a look real quick” did not 

allow the officers to go into the trunk and cut open a mounted 

tire. 

R. vol. 1, at 14. Mr. Vargas 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 involve duplicative challenges 

to the destruction of the tire. Mr. Vargas is incorrect for two reasons. 

First, even if Mr. Vargas presented two different arguments on the 

scope of his consent, it does not necessarily follow that one of these 

arguments addressed the search of his trunk. It is undisputed that the first 

sentence objected to the destruction of the tire. But the second 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 right about the stated difference 

in his two points. It wouldn’t matter: We are not parsing his words as we 

might when interpreting a contract; we are reviewing his words to 

determine whether Mr. Vargas adequately presented his current argument 

in district court. The district court should not have to dig into possible 

differences between the two sentences to figure out that Mr. Vargas was 

disputing consent to look in the 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 reference[ ] to [the] point in district court proceedings 

[does] not . . . preserve the issue on appeal.’” Lyons v. Jefferson Bank & 

Tr., 994 F.2d 716, 721 (10th 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 his argument that the 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 consent was for ‘bags 

and stuff.’” R. vol. 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 obvious, unconcealed trunk. 
7 

 Even if Mr. Vargas argued to the district court that his consent did 

not extend to a search of the trunk, the argument was undeveloped, 

unsupported, and insufficient to avoid forfeiture. 

B. Preservation of an Antecedent Question 

 Mr. Vargas also argues that his objection was preserved because the 

search of the trunk is a question antecedent to the claim raised in district 

court (that the consent did not cover the search and destruction of the tire). 

Mr. Vargas is incorrect. 

 He relies on Lebron v. National Railroad Passenger Corp., 513 U.S. 

374 (1995). There the Supreme Court held that if an issue is not properly 

raised in a certiorari petition, 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 precedential 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 preserve an antecedent question not raised in 

district court, the question 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 trunk and (2) cut open 
8 

the tire. Indeed, in his motion to suppress, Mr. Vargas cited cases 

addressing only whether the scope of consent extends to the removal and 

destruction of property. These cases were directly related to the search and 

destruction of the tire but only tangentially related to the search of the 

trunk. Thus, Lebron does not preclude forfeiture of Mr. Vargas’s appellate 

argument. 

IV. Sufficiency of the Findings on Consent 

Mr. Vargas also challenges the sufficiency of the district court’s 

findings on consent to look inside the trunk. The 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 essential 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 satisfied. In district court, Mr. 

Vargas did not question consent to look inside the trunk. Instead, he 

argued that consent to take “a real quick look did not include taking a 
9 

knife to a mounted spare tire that was in the trunk.” R. vol. 1, at 19. In 

response, the government argued that Mr. Vargas’s consent had “extended 

to the entire vehicle.” Id. at 27. Mr. Vargas did not argue to the contrary. 

The district court focused on consent to cut the tire because that was 

what Mr. Vargas had disputed. The district court did not make findings on 

consent to look inside the trunk because that was not at issue. Thus, the 

district court did not err in declining to make express findings on consent 

to look inside the trunk. 

V. Conclusion 

Mr. Vargas forfeited his 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 search and destruction of the 

tire, not to the search of the trunk. Second, Mr. Vargas did not preserve the 

argument by raising an antecedent issue. Thus, Mr. Vargas forfeited his 

appellate argument involving consent to look inside the trunk. Because Mr. 

Vargas forfeited this argument, the district court had no reason to make 

further findings on consent. Thus, we affirm. 

Entered for the Court 

Robert E Bacharach 

Circuit Judge