* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Nathaniel R. Jones, Circuit Judge, UnitedStates Court of Appeals for the Sixth Circuit, sitting by designati on. 

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

### JUL 19 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. BRUCE MILES, Defendant - Appellant. No. 00-3230 (D.C. No. 99-CR-40087-SAC)

(D. Kan.)

ORDER AND JUDGMENT *

Before KELLY , McWILLIAMS , and JONES , ** Circuit Judges.
Bruce Miles entered a conditional plea of guilty to possession of a firearm after former conviction of a felony, 18 U.S.C. §§ 9 22(g) and 924(a)(2). On appeal, he contests the district court’s denial of his motion to suppress evidence discovered in the third-party residence in which he was arrested.1 Yvette Sugura testified that the officers were acc ompanied by five or six

United States Marshals. II R. at 41-42. The offic ers did not recall whether marshals were present, but conceded that it was pos sible. Id. at 26-27, 68. But see id. at 76 (noting that presence of additional officers would have been reflected in contemporaneous reports of the encounter). The district court found that only three officers were present. I R., Doc. 32 at 6.

2 Officer Mechler testified that Ms. Sugura referred to Mr. Miles as “her roommate’s boyfriend”. II R. at 70 (emphasis added). There is no other (continued...) -2- Background On the morning of November 3, 1998, one Kansas and two Topeka police officers went to the home of Yvonne and Yvette Sugu ra, hoping to find Bruce Miles and execute a state warrant for his arrest. 1 II R. at 9-10, 13-14, 70. Prior attempts to locate and apprehend Mr. Miles at otheraddresses had been unsuccessful, id. at 56-57, 68, and an anonymous tip to the “CrimeSt oppers” hotline had reported that Mr. Miles was “staying” at the Suguras’ home. Id. at 11-12. Yvonne Sugura met the police at the door. Id. at 12. In response to the officers’ inquiries, she acknowledged that she had heard Mr. Miles’ name before, pointed upstairs to her daughter Yvette’s apartment , and invited them in to speak with Yvette [hereinafter “Ms. Sugura”]. Id. at 12-13, 23-24, 66. While one officer stood guard at an outside door, i d. at 77-78, the other two went upstairs to Ms. Sugura’s apartment. Id. at 13-14. The testimony is inconsistent as to whether the door was answered byTony Solis (Ms. Sugura’s boyfriend), id. at 13, or Kendra Zabala (Mr. Miles’ then-girlfrien d 2 ). Id. at 59;2 (...continued)

indication that Ms. Zabala resided in the apartment

.

3 But cf. II R. at 60 (Off. Mechler: two minutes elapsed between initial knock and Ms. Sugura’s consent); id. at 78-79 (Off. Cochran: encounter lasted five to ten minutes). -3- see also V R. at 24. In any case, the police eventually sp oke with Ms. Zabala, who told the officers that Ms. Sugura was asleep. II R. at 14-15. The officers’ indicated that they needed to speak with Ms. Suguraand asked Ms. Zabala to wake her up. Id. Ms. Sugura came to the door, wrapped in a blanket, id. at 70, and told the officers “that she hadn’t seen [Mr. Miles], [that] he hadn’t been around.” Id. at 15. When the officers asked to come in and look fo r him, Ms. Sugura replied “I’d rather you didn’t.” Id. As the officers attempted to persuade her, she st epped out into the hall. Id. at 15, 32. It was evident to the officers that sh e was very nervous. Id. at 15-16, 59-60, 70-71, 75-76; see also id. at 49. At one point, an officer informed her that if she was lying about Mr . Miles’ presence in the apartment, she could be arrested for harboring a fu gitive or aiding a felon. Id. at 31, 71. After “approximately seven minutes,” Aplt. Br. at 20, 3 Ms. Sugura admitted that Mr. Miles was in the apartment and co nsented to the officers’ search. II R. at 34, 61. Immediately upon the off icers’ entry, Mr. Miles stepped forward. Id. at 17. One officer saw a gun in plain view and as ked to whom it4 Mr. Miles has waived his Mirandaclaim on appeal. See Coleman v. B-G

Maint. Mgmt. of Colo., Inc. , 108 F.3d 1199, 1205 (10th Cir. 1997).

5 In exchange, the government agreed to dismiss Count II. III R., Att. at 2, ¶ 3(a); IV R. at 4. -4- belonged; Mr. Miles admitted that the gun was his. 4 Id. at 17-18. A grand jury returned a two-count indictment agains t Mr. Miles. I R., Doc. 1. When his motion to suppress the gun and certainincriminating statements was denied, I R., Doc. 32, Mr. Miles entered a conditio nal plea of guilty to Count I of the indictment – possessing a firearm after convict ion of a felony. 5 I R., Doc. 36. This appeal followed.

Discussion The question before us is whether the officers’ entry into Yvette Sugura’s apartment, upon which they discovered evidence tend ing to incriminate Mr. Miles, was reasonable under the Fourth Amendment de spite the absence of a search warrant. The government argues that the sea rch was justified by the officers’ objectively reasonable belief that Mr. Mi les was both living in and present in the apartment at the time of the search. Aplee Br. at 6-12; see also Payton v. New York , 445 U.S. 573, 603 (1980) (“[A]n arrest warrant fo unded on probable case implicitly carries with it the limite d authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is wit hin.”);-5-

Valdez v. McPheters , 172 F.3d 1220, 1224-25 (10th Cir. 1999) (holding that Paytondoes not require that the arrestee actually reside in the residence searched, provided that the officers had a “reasonable basis for believing that [the arrestee] both (1) lived in the residence and (2) could be fo und within at the time of entry”). In the alternative, the government argues that Yvette Sugura consented to the search of her apartment, Aplee. Br. at 15-23 , and that the search was supported by exigent circumstances. Id. at 12-15; see also Steagald v. United States , 451 U.S. 204, 216 (1981) (holding that arrest warrant does not authorize search of third-party dwelling in which arrestee do es not reside in the absence of consent or exigent circumstances). Because we holdthat Ms. Sugura’s consent was valid, we need not address the government’s oth er two arguments (i.e. , Payton/Valdez and exigent circumstances). Whether a party has voluntarily consented to a sear ch is a question of fact that the district court must evaluate in light of t he totality of the circumstances. Schneckloth v. Bustamonte , 412 U.S. 218, 227 (1973). In order to establish voluntariness, the government must “proffer clear and positive testimony that consent was unequivocal and specific and freely andintelligently given” and “prove that this consent was given without implied or express duress or coercion.” United States v. McRae , 81 F.3d 1528, 1537 (10th Cir. 1996) (internal quo tations and citation omitted). As with all questions of fa ct, when “[r]eviewing the denial6 Mr. Miles also lists “fear and intimidation” as a relevant factor, but it is

unclear whether he is referring to the officers’ me thods or Yvette Sugura’s state of mind. Aplt. Br. at 20. Neither is supported bythe record. The only testimony as to the officers’ allegedly intimidating manner “ is Ms. Sugura’s testimony, when led by defense counsel, that Officer Mechler l ooked at her ‘[k]ind of sternly?’ and ‘[k]ind of intimidating?’” Aplee. Br. at 18-19 (quoting II R. at 49). In Ms. Sugura’s own words, Officer Mechler “just lo oked at me like ‘Are you lying,’ kind of . . . I think she was looking at me to kind of tell whether I was lying or not . . . .” II R. at 48-49. -6- of a motion to suppress, we accept the district cou rt’s factual findings unless clearly erroneous.” United States v. Davis , 197 F.3d 1048, 1050 (10th Cir. 1999) (citation omitted). Upon a thorough examination of the record, we see n o grounds to reject the district court’s finding that Yvette Sugura voluntarily consented to the officers’ limited search of her apartment. Doc. 32 at 17. M r. Miles lists several factors that, in his opinion, “establish, at best, coerced acquiescence, not voluntary consent.” Aplt. Br. at 19. He notes that the poli ce threatened to arrest Ms. Sugura for harboring a fugitive, that more than one officer was present and that they “were in uniform with visible weapons,” that s he was not advised – in a consent form or otherwise – that she could refuse c onsent, that the encounter took place at her door when she had just awakened and wa s “wrapped in a blanket,” that the encounter lasted approximately seven minut es, and that she believed she had no choice but to consent. Id. at 19-20. 6 Although we emphasize that our ruling is based on a consideration of the totality of the circumstances, we will-7-

briefly discuss each of the above factors. First, the officers’ alleged “threats” do not rise to the level of coercion or duress necessary to negate consent. During their b rief encounter with Ms. Sugura, one officer truthfully informed her that sh e couldbe arrested for harboring a fugitive or aiding a felon if she was l ying about Mr. Miles’ presence in the apartment. II R. at 31, 71. Even generousl y construed as a “threat,” this statement was not the type of threat that negates a n otherwise voluntary consent. See, e.g. , United States v. Morrow , 731 F.2d 233, 236 (4th Cir. 1984) (“Although [the officer] did tell [the defendant] . . . that s he could be charged as an accessory . . . that statement alone hardly amounts to duress or coercion . . . .”); see also United States v. Donaldson , 793 F.2d 498, 502 (2d Cir. 1986) (holding, on sim ilar facts, that “when an investigation on the scene dev elops probable cause to arrest the third party [resident of] those premises for harboring the fugitive, a warrantless search [incident to the arrest] may the n be made . . . .”). In this case, the officer’s statement did not relate to Ms. Sugur a’s refusal to consent to the search, but only to her statements that Mr. Miles w as not in the apartment. The officers never threatened to punish Ms. Sugura for refusing to consent, they merely advised her that harboring a fugitive was it self a crime, for which she could be arrested. Accordingly, the cases in which courts have found an officer’s threats to negate consent are inapposite. See, e.g

. , United States v. Bolin , 514-8-

F.2d 554, 559-60 (7th Cir. 1975) (holding consent n ot voluntary where police threatened to arrest defendant’s girlfriend if he r efused to sign consent form); Waldron v. United States , 219 F.2d 37, 39 (D.C. Cir. 1955) (consent not vol untary where “police ‘said if they had to get a search war rant, that it wouldn’t be their responsibility of [sic] what happened to what was i n the apartment, and if I were to let them in on my own free will, that they would put everything back where they got it’”). The other factors cited in Mr. Miles’ brief are equ ally unpersuasive. We see no clear error in the district court’s finding that only three officers were involved in the encounter at issue. I R., Doc, 32 at 6; cf. supranote 1. There is nothing unusual or inherently coercive about the pr esence of three uniformed and armed officers. Although it is true that pressure on a detainee to consent to a search may be increased by the presence of more tha n one officer and by an officer’s failure to advise the individual of his r ight to refuse the officer’s request, United States v. Orrego-Fernandez , 78 F.3d 1497, 1505 (10th Cir. 1996), Yvette Sugura was not a detainee – she was in her o wn home. Even in the detention context, moreover, neither factor is disp ositive. Id. ; accordUnited States v. Fernandez , 18 F.3d 874, 882 (10th Cir. 1994). Nor it is nec essary that officers obtain a signed consent form in order to i nsulate an otherwise knowing and voluntary oral consent against attack. See Schneckloth , 412 U.S. at 231.-9-

The record indicates that Ms. Sugura chose to come to the door wrapped in a blanket. II R. at 70. Although a person’s “vuln erable subjective state” is one factor to consider in determining whether consent w as voluntary, Schneckloth , 412 U.S. at 229, we are persuaded that Ms. Sugura’s consent was voluntary despite her chosen attire – or lack thereof. Cf. United States v. Dickerson , 975 F.2d 1245, 1249 (7th Cir. 1992) (holding that nakedman “voluntarily consented” to warrantless entry by four police officers who ap peared, weapons drawn, at his front door, and physically prevented him from shutt ing it). The brief duration of the encounter is also unobjectionable. II R. at 60 (two minutes); Aplt. Br. at 20 (“approximately seven minutes”); II R. at 78-79 (fi ve to ten minutes). Finally, Ms. Sugura’s own testimony contradicts Mr. Miles’ a ssertion that she believed she had no choice but to consent. E.g. , II R. at 45 (Ms. Sugura: nothing she “did in discussing anything with the officers” was “done involuntarily”); id. at 53 (Ms. Sugura: “I didn’t really care if [the officers] cam e in. I just wanted them to get [Mr. Miles] and leave my house.”). The district co urt did not clearly err in crediting Ms. Sugura’s testimony as to her own stat e of mind. See United States v. Hernandez , 93 F.3d 1493, 1498 (10th Cir. 1996) (“Evaluation of the credibility of the witnesses, the weight to be given the eviden ce, and inference to be drawn from the evidence are for the district court.”). Accordingly, the district court’s denial of Mr. Mil es’ motion to suppress-10-

was not error and the judgment is AFFIRMED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge