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

### FEB 15 2005 

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

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. BRUCE R. SPENCE,

Defendant-Appellant. No. 04-6118

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 02-CR-219-M)

Submitted on the briefs: Robert G. McCampbell, United States Attorney, James F. Robinson, Assistant United States Attorney, Oklahoma City, Oklahoma, fo r Plaintiff-Appellee. Thomas D. McCormick, Oklahoma City, Oklahoma, for D efendant-Appellant.

Before, EBEL , MURPHY , and McCONNELL , Circuit Judges.

MURPHY , Circuit Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. Fed. R. Civ. P. 34(f); 10th Cir. R. 34.1 (G). The case is, therefore, ordered submitted without oral argument. -2- I. INTRODUCTION Bruce R. Spence was charged in the Western Districtof Oklahoma with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). In the district court, Spence moved to suppress eviden ce seized in a search of his home. The court denied the motion after an evident iary hearing. Spence then entered a conditional guilty plea reserving his rig ht to appeal the denial of his motion. This court has jurisdiction pursuant to 28 U.S.C. § 1291. Because the encounter between the government agents and Spence during the search of his home was consensual, this court affirms the district court’s denial of Spence’s motion to suppress. 1 II. BACKGROUND The evidence presented at the hearing on the motion to suppress showed that Russian law enforcement officials notified the United States Customs Service that Spence was one of several Americans who had pa id to access Russian-based web sites featuring child pornography. Responding to this information, three agents dressed in plain clothes went to Spence’s ho me in Oklahoma City to conduct a “knock and talk.” Special Agents Paul Ma steller and Eric Munson-3-

knocked on Spence’s front door sometime between tenand eleven o’clock in the morning, while Special Agent Bill Davis waited in avehicle outside. When Spence answered the door, Masteller and Munson identified themselves as special agents of the United States Customs Service and ask ed if they could come inside to talk. Spence agreed. The agents informed Spence that his name had been l inked to Russian web sites featuring child pornography. They then asked if they could search his computer. Spence asked at least twice whether he c ould decline the search request, and Munson responded “[y]ou have a choice . . . you can say no.” Spence orally agreed and signed a written consent f orm. Davis then entered the home to conduct the computer search. While Davis w as working on the computer, Masteller and Munson asked Spence if they could search his residence. Spence again orally agreed and signed a second written con sent form. The agents seized two CDs containing images of chil dren engaged in sexually explicit activity. The entire encounter l asted approximately two hours. The next day, Masteller obtained a search warrant a nd seized Spence’s computer and other evidence. III. STANDARD OF REVIEW In reviewing the denial of a motion to suppress, th is court views the evidence in the light most favorable to the governm ent and accepts the district2 Accordingly, this court will not examine whether th e search of Spence’s

home and computer violated the Fourth Amendment, orwhether Spence was subjected to a custodial interrogation that infring ed his rights under the Fifth Amendment. -4- court’s factual findings unless clearly erroneous. United States v. Sanchez , 89 F.3d 715, 717 (10th Cir. 1996). This court “conduc t[s] a de novo review of all the relevant circumstances to determine whether an interaction between an individual and a law enforcement officer is a conse nsual encounter that does not implicate the Fourth Amendment.” United States v. Abdenbi , 361 F.3d 1282, 1291 (10th Cir. 2004). IV. DISCUSSION The district court concluded that the agents’ actio ns did not constitute an unconstitutional seizure, search, or custodial inte rrogation within the meaning of the Fourth and Fifth Amendments of the United State s Constitution. On appeal, Spence challenges only the district court’s conclus ion that he was not unconstitutionally seized in violation of the Fourt h Amendment. 2 Spence contends that he was effectively under arres t “at the moment government agents entered his home” and that this a rrest was not supported by either a warrant or probable cause. See United States v. Edwards , 242 F.3d 928, 933-34 (10th Cir. 2001) (“To be lawful, a warrantle ss arrest must be supported by probable cause to arrest.” (quotation omitted)). H e therefore argues the district-5-

court should have suppressed any evidence obtained as a result of his unlawful detention. The government does not dispute that th e agents had neither probable cause nor a warrant, but instead asserts that the e ncounter was consensual and that Spence was not under arrest at the time. A consensual encounter is not a seizure for purpose s of the Fourth Amendment. United States v. Gigley , 213 F.3d 509, 514 (10th Cir. 2000). A seizure occurs only when an officer, by means of physical force or show of authority, in some way restrains the liberty of a c itizen. United States v. Zapata , 997 F.2d 751, 756 (10th Cir. 1993). The Supreme Co urt in Florida v. Bostick held that, “in order to determine whether a particu lar encounter constitutes a seizure, a court must consider all the circumstance s surrounding the encounter to determine whether the police conduct would have com municated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” 501 U.S. 429, 439 (1991) . This court has identified several factors relevant to this inquiry: the location of the encounter, particularly whetherthe defendant is in an open public place where he is within the view of persons other than law enforcement officers; whether the officers touch or physically restrain the defendant; whether the offi cers are uniformed or in plain clothes; whether their weapons are disp layed; the number, demeanor and tone of voice of the officers; whetherand for how long the officers retain the defendant’s personal effect s such as tickets or identification; and whether or not they have specif ically advised defendant at any time that he had the right to term inate the encounter or refuse consent.-6-

Zapata , 997 F.2d at 756-57 (quotations, citations, and al teration omitted). The list of factors is non-exclusive and no one factor is dispositive. Abdenbi , 361 F.3d at 1291. The focus of the test is on “the coe rcive effect of police conduct, taken as a whole on a reasonable person.” United States v. Little , 18 F.3d 1499, 1504 (10th Cir. 1994) (en banc) (quotation omitted)

. Spence’s primary argument is that the encounter too k place within his home and that “[t]he highest Fourth Amendment requirements therefore attach.” Although Spence is correct that he had an increased expectation of privacy within his own home, this privacy expectation “has limited relevance to the question of whether a reasonable person would believe that he o r she is unable to terminate the encounter.” Little , 18 F.3d at 1505 (noting that an individual’s incr eased expectation of privacy is primarily relevant to the question of the reasonableness of a police search, not to whether an encounter is consensual) (quotation omitted); see also United States v. Kim , 27 F.3d 947, 953 (3d Cir. 1994) (“As far as conse nt is concerned, one may consent to an encounter in th e privacy of his own home or in a public square.”). This court does consider “i nteraction in a nonpublic place . . . and the absence of other members of the public” as factors pointing toward a nonconsensual encounter. Sanchez , 89 F.3d at 718. The particular location of the encounter, however, is only one fac tor in the totality of the circumstances test. Little , 18 F.3d at 1503. There is no per se rule that a police3 But cf. United States v. Rogers , 391 F.3d 1165, 1170 (10th Cir. 2004)

(noting that an encounter occurring in the defendan t’s home weighed against a conclusion that the defendant was in custody for Fi fth Amendment purposes). -7- encounter within an individual’s home is a seizure within the meaning of the Fourth Amendment. See Abdenbi , 361 F.3d at 1288 (“[I]t is axiomatic that all requests to search a home or apartment are made in nonpublic places.”); United States v. Jerez , 108 F.3d 684, 691-92 (7th Cir. 1997) (recognizing that a “knock and talk” is ordinarily consensual unless coercive circumstances exist). Even assuming Spence is correct that his presence i n his own home weighs toward the conclusion that a seizure occurred, 3 the district court was correct in this case to conclude the encounter was consensual. Spence admits that the agents asked for permission to enter his home and that he invited them inside. The agents’ request for permission to enter is not the same thing as an explicit advisement that Spence had the right to terminate t he encounter or refuse consent. See Zapata , 997 F.2d at 757 n.4. An explicit advisement, how ever, “is not a requirement ; it is merely a factor to be considered in the tot ality of the circumstances.” Id. In the circumstances of this case, Spence’s agree ment to allow the agents inside his home weighs toward the conclusion that the encounter was voluntary. Furthermore, Spence was explicitly told at least twice that he could refuse consent to search his computer. See Little , 18 F.3d at 1505 (noting-8-

that an advisement concerning consent to search is relevant to the totality of the circumstances in determining whether there has beena seizure). The district court found that the agents were dress ed in plain clothes and did not display their weapons at any time, that the ir tone and demeanor were professional, and that there was no evidence that t hey raised their voices or physically touched or restrained Spence. See Abdenbi , 361 F.3d at 1292 (concluding that no seizure occurred when “the enco unter was calm and orderly with no show of force or physical touching”). The court further found that the encounter occurred at a reasonable hour, and that t he agents did not take possession of Spence’s identification or other belo ngings, except for the evidence seized, for any measurable period of time. Althoug h there were three agents in Spence’s home, only Masteller and Munson were invol ved in questioning Spence. In this case, the presence of more than one agent “ does not outweigh the multiple other factors indicating a purely consensual encounter.” Zapata , 997 F.2d at 757. The only other factor Spence argues indicates an un constitutional seizure is that he was not allowed to walk around his home unattended. The district court found, however, that “Spence was not actually preve nted from moving about his home” aside from two particular instances when the agents told Spence to leave the room while Davis was conducting the computer se arch, and when they opened4 Although Munson did testify that he subjectively intended to further limit

Spence’s movements in order to ensure the agents’ s afety, there is no evidence that these restrictions were ever communicated to S pence. See Abdenbi , 361 F.3d at 1292-93 (noting that the subjective state of min d of a government agent is irrelevant to the question whether a reasonable per son would feel free to terminate an encounter). Spence never attempted to leave his home and was not otherwise blocked by the agents or restricted in any way. -9- a closet door before allowing Spence to retrieve a book. 4 There is no evidence that the agents displayed their weapons, physicallytouched Spence, or raised their voices during the two occasions when they limited h is movement. Furthermore, these two incidents were themselves a direct resultof Spence twice giving the agents his consent to search. A reasonable person in Spence’s position would have felt free to ask the agents to terminate the s earch and leave. Viewed in light of the totality of the circumstance s, this court concludes that the agents’ conduct would have communicated to a reasonable person that their requests could have been declined and the enc ounter terminated at any time. The encounter was consensual and there was no illeg al seizure in violation of the Fourth Amendment. V. CONCLUSION For the foregoing reasons, the district court’s den ial of Spence’s motion to suppress is AFFIRMED

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