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, for Plaintiff-Appellee.

Thomas D. McCormick, Oklahoma City, Oklahoma, for Defendant-Appellant.

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

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

unanimously to grant the parties’ request for a decision 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 District of 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 evidence seized in a search of his

home. The court denied the motion after an evidentiary hearing. Spence then

entered a conditional guilty plea reserving his right 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 paid to access Russian-based

web sites featuring child pornography. Responding to this information, three

agents dressed in plain clothes went to Spence’s home in Oklahoma City to

conduct a “knock and talk.” Special Agents Paul Masteller and Eric Munson
-3-

knocked on Spence’s front door sometime between ten and eleven o’clock in the

morning, while Special Agent Bill Davis waited in a vehicle outside. When

Spence answered the door, Masteller and Munson identified themselves as special

agents of the United States Customs Service and asked if they could come inside

to talk. Spence agreed.

The agents informed Spence that his name had been linked to Russian web

sites featuring child pornography. They then asked if they could search his

computer. Spence asked at least twice whether he could decline the search

request, and Munson responded “[y]ou have a choice . . . you can say no.” 

Spence orally agreed and signed a written consent form. Davis then entered the

home to conduct the computer search. While Davis was working on the computer,

Masteller and Munson asked Spence if they could search his residence. Spence

again orally agreed and signed a second written consent form.

The agents seized two CDs containing images of children engaged in

sexually explicit activity. The entire encounter lasted approximately two hours. 

The next day, Masteller obtained a search warrant and seized Spence’s computer

and other evidence.

III. STANDARD OF REVIEW

In reviewing the denial of a motion to suppress, this court views the

evidence in the light most favorable to the government and accepts the district
2Accordingly, this court will not examine whether the search of Spence’s

home and computer violated the Fourth Amendment, or whether Spence was

subjected to a custodial interrogation that infringed 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 “conduct[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 consensual 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’ actions did not constitute an

unconstitutional seizure, search, or custodial interrogation within the meaning of

the Fourth and Fifth Amendments of the United States Constitution. On appeal,

Spence challenges only the district court’s conclusion that he was not

unconstitutionally seized in violation of the Fourth Amendment.2

Spence contends that he was effectively under arrest “at the moment

government agents entered his home” and that this arrest 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 warrantless arrest must be supported by

probable cause to arrest.” (quotation omitted)). He 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 the agents had neither probable

cause nor a warrant, but instead asserts that the encounter was consensual and that

Spence was not under arrest at the time.

A consensual encounter is not a seizure for purposes 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 citizen. United States v. Zapata,

997 F.2d 751, 756 (10th Cir. 1993). The Supreme Court in Florida v. Bostick

held that, “in order to determine whether a particular encounter constitutes a

seizure, a court must consider all the circumstances surrounding the encounter to

determine whether the police conduct would have communicated 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 whether the 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 officers are uniformed

or in plain clothes; whether their weapons are displayed; the number,

demeanor and tone of voice of the officers; whether and for how long

the officers retain the defendant’s personal effects such as tickets or

identification; and whether or not they have specifically advised

defendant at any time that he had the right to terminate the encounter

or refuse consent.
-6-

Zapata, 997 F.2d at 756-57 (quotations, citations, and alteration 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 coercive 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 took 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 or she is unable to terminate

the encounter.” Little, 18 F.3d at 1505 (noting that an individual’s increased

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 consent

is concerned, one may consent to an encounter in the privacy of his own home or

in a public square.”). This court does consider “interaction 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 factor in the totality of the

circumstances test. Little, 18 F.3d at 1503. There is no per se rule that a police
3But cf. United States v. Rogers, 391 F.3d 1165, 1170 (10th Cir. 2004)

(noting that an encounter occurring in the defendant’s home weighed against a

conclusion that the defendant was in custody for Fifth 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 in 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 the encounter or refuse consent. 

See Zapata, 997 F.2d at 757 n.4. An explicit advisement, however, “is not a

requirement; it is merely a factor to be considered in the totality of the

circumstances.” Id. In the circumstances of this case, Spence’s agreement 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 been a seizure).

The district court found that the agents were dressed in plain clothes and

did not display their weapons at any time, that their tone and demeanor were

professional, and that there was no evidence that they raised their voices or

physically touched or restrained Spence. See Abdenbi, 361 F.3d at 1292

(concluding that no seizure occurred when “the encounter 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 the agents did not take

possession of Spence’s identification or other belongings, except for the evidence

seized, for any measurable period of time. Although there were three agents in

Spence’s home, only Masteller and Munson were involved 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 unconstitutional seizure is

that he was not allowed to walk around his home unattended. The district court

found, however, that “Spence was not actually prevented 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 search, and when they opened
4Although Munson did testify that he subjectively intended to further limit

Spence’s movements in order to ensure the agents’ safety, there is no evidence

that these restrictions were ever communicated to Spence. See Abdenbi, 361 F.3d

at 1292-93 (noting that the subjective state of mind of a government agent is

irrelevant to the question whether a reasonable person 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, physically touched Spence, or raised their

voices during the two occasions when they limited his movement. Furthermore,

these two incidents were themselves a direct result of 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 search and leave.

Viewed in light of the totality of the circumstances, this court concludes

that the agents’ conduct would have communicated to a reasonable person that

their requests could have been declined and the encounter terminated at any time. 

The encounter was consensual and there was no illegal seizure in violation of the

Fourth Amendment. 

V. CONCLUSION

For the foregoing reasons, the district court’s denial of Spence’s motion to

suppress is AFFIRMED.