                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 11 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30104

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00013-BLW

  v.
                                                 MEMORANDUM *
EDDIE RAY GRAHAM,

              Defendant - Appellant.



                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                       Argued and Submitted April 11, 2012
                               Seattle, Washington

Before: HUG, D.W. NELSON, and CALLAHAN, Circuit Judges.

       Eddie Ray Graham (“Graham”) appeals the district court’s order denying his

motion to suppress evidence found during two searches of the bedroom he shared




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
with Gloria Snow (“Snow”).1 We have jurisdiction under 28 U.S.C. § 1291, and

we affirm. Because the parties are familiar with the facts underlying this appeal,

we do not recount them here.

      We review de novo a district court’s denial of a motion to suppress. United

States v. Ewing, 638 F.3d 1226, 1229 (9th Cir. 2011). However, the district

court’s underlying factual findings are reviewed for clear error. Id. We also

review for clear error a district court’s determination of the voluntariness of a

defendant’s consent to a search. United States v. Brown, 563 F.3d 410, 414 (9th

Cir. 2009). Whether someone is in custody for purposes of determining the

voluntariness of consent to a search is a mixed question of law and fact reviewed

de novo. United States v. Cormier, 220 F.3d 1103, 1110 (9th Cir. 2000). The

district court’s underlying factual findings, however, are reviewed for clear error.

Id.

      Although warrantless searches generally are impermissible under the Fourth

and Fourteenth Amendments, one exception to the warrant requirement is for

searches conducted pursuant to valid consent. Schneckloth v. Bustamonte, 412


      1
       Following the court’s denial of his motion to suppress, Graham entered a
conditional guilty plea to being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g), preserving his right to appeal the denial of the motion to
suppress.


                                           2                                    11-30104
U.S. 218, 219 (1973). Graham contends that Snow’s consent2 to the bedroom

searches was not voluntary.

      We consider five factors in determining voluntariness:

      (1) whether the [consenting individual] was in custody; (2) whether
      the arresting officers had their guns drawn; (3) whether Miranda
      warnings were given 3; (4) whether the [consenting individual] was
      notified that she had a right not to consent; and (5) whether the
      [consenting individual] had been told a search warrant could be
      obtained.

Brown, 563 F.3d at 415 (quoting United States v. Jones, 286 F.3d 1146, 1152 (9th

Cir. 2002)) (alterations in Brown). No one factor is determinative. Id. Courts are

to examine the totality of the circumstances4 when determining whether consent to

a search was voluntary or was coerced. Schneckloth, 412 U.S. at 227. Thus, a

court may take into account any other factors it deems relevant. Liberal v.

Estrada, 632 F.3d 1064, 1082 (9th Cir. 2011).



      2
       Graham also appears to rely on Bumper v. North Carolina, 391 U.S. 543
(1968), to argue that there was no consent because Snow merely acquiesced to a
search that seemed inevitable due to the lawful probation search. Bumper does not
apply here because the officers never told Snow that the probation search gave
them the right to search her bedroom.
      3
       When the individual is not in custody, the fact that no Miranda warnings
were given is inapposite. United States v. Basher, 629 F.3d 1161, 1168 (9th Cir.
2011).
      4
          We have reviewed the entire record, including the tape recordings of the
search.

                                            3                                  11-30104
First Search

      The district court did not clearly err when it determined that Snow

voluntarily consented to the first search of the bedroom. As an initial matter, the

district court correctly decided that Snow was not in custody when she consented

to the search.5 Examining the totality of the circumstances, we are to determine

whether the police conduct would have communicated to a reasonable person that

she was not at liberty to ignore the police presence and go about her business. See

Brown, 563 F.3d at 415. We conclude that the police conduct here would not have

conveyed such an impression. The district judge was at the evidentiary hearing

and was able to assess the credibility of Snow and Lopez when they testified about

their telephone conversation. The court found that someone in Snow’s position

would not have interpreted the telephone conversation to mean that Lopez was

attempting to detain Snow. This finding is not clearly erroneous. In addition, none

of the officers displayed their weapons, the number of officers only slightly



      5
        Graham also claims that the district court erred by requiring that a person be
a suspect or the object of an interrogation in order to qualify as being in custody.
In fact, however, the district court did not state that there was such a requirement.
Instead, the district court merely considered, as part of the totality of the
circumstances, the fact that Snow knew she was not a suspect. Such reasoning is
consistent with previous cases in which our custody analysis has taken into account
the person’s belief about whether he or she was facing an arrestable charge. See,
e.g., Brown, 563 F.3d at 415; United States v. Washington, 387 F.3d 1060, 1069
(9th Cir. 2004).
                                          4                                     11-30104
outnumbered the number of people in the home, and there is no evidence that the

officers surrounded Snow or physically blocked her from leaving.6 Although

officers did not inform Snow of her right to leave, the Supreme Court has made it

clear that this factor is not a critical or dispositive one. See United States v.

Mendenhall, 446 U.S. 544, 555 (1980). Thus, we conclude that Snow was not in

custody at the time of the first search.

      Given the other factors and the totality of the circumstances, the district

court did not clearly err when it held that Snow’s consent to the first search was

voluntary. Snow herself admitted at the evidentiary hearing that she had no

problem with letting the officers look at the firearms. Furthermore, officers did not

threaten Snow with a search warrant and the officers had their firearms holstered

the entire time. Snow was not informed of the right to withhold consent.

However, notification of the right to withhold consent is not required, and the

absence of proof that the consenting individual “knew he could withhold his


      6
        Graham also argues that Snow was indicating that she wished to leave when
she mentioned to officers that her bedroom door was locked because they were
getting ready to leave. However, a person’s statement that she has plans to go
somewhere does not prove that the person believed that she could not leave or that
she was asking permission to leave. Cf. United States v. Mendenhall, 446 U.S.
544, 555, 559-60 (1980) (holding that woman was not seized and that consent was
voluntary where woman told officer that she had a plane to catch, and concluding
that court could view such a statement as an expression of concern that search be
conducted quickly).

                                            5                                       11-30104
consent, though it may be a factor in the overall judgment, is not to be given

controlling significance.” United States v. Watson, 423 U.S. 411, 424 (1976); see

also Schneckloth, 412 U.S. at 229-30; United States v. Kim, 25 F.3d 1426, 1432

(9th Cir. 1994).

Second Search

      The district court also did not clearly err when it determined that Snow

voluntarily consented 7 to the second search of the bedroom. First, Snow still was

not in custody at the time of the second search. There were no critical changes in

the circumstances between the first and second search. The fact that Graham may

have been in custody at the time of the second search does not mean that Snow was

in custody. Cf. Brown, 563 F.3d at 415 (holding that person giving consent was

not in custody, although her companion was in custody). In addition, although

Snow may not have had unfettered access to the firearms during the second search,

that does not show she was in custody. Cf. Basher, 629 F.3d at 1167 (holding that

defendant and son were not in custody where officers investigating reports of

gunfire told them, in a non-threatening manner, to keep their hands in view).




      7
       To the extent Graham claims that Snow did not consent at all, but instead
was simply told that an officer would accompany her, a tape recording of the
search reveals such a claim to be unfounded.
                                          6                                      11-30104
      Second, the other factors and circumstances also support a determination

that Snow’s consent to the search was voluntary. The only enumerated factor

weighing in favor of finding the consent to be involuntary is the fact that officers

did not explicitly inform Snow of the right to withhold consent. That one factor

alone is insufficient to render the consent involuntary. See Kim, 25 F.3d at 1432.

The officers still had their guns holstered and had not threatened to obtain a search

warrant. In addition, although Snow witnessed the more heated exchanges

between Graham and Sergeant Hoadley when Graham tried to assert rights he did

not have, the officers’ interactions with Snow continued to be polite and calm.

There was no reason for Snow to believe that the officers would respond to her in

an angry or threatening manner if she chose to exercise any rights she genuinely

possessed.

      Graham argues that Snow’s actions in opening the bedroom door the second

time were in response to Sergeant Hoadley’s threats to take Graham to jail and that

this created an inherently coercive situation. However, any threats to arrest

Graham and put him in jail were not false or baseless, and therefore were not

impermissibly coercive. Cf. United States v. Patayan Soriano, 361 F.3d 494, 504-

05 (9th Cir. 2004) (amended) (recognizing that threatening to obtain a search

warrant is not coercive where there is probable cause to justify a warrant).


                                           7                                    11-30104
      Moreover, Snow did not testify that the threat of arrest or jail was the reason

she unlocked the bedroom again. Rather, she testified that she unlocked the door

because the officers had said that Graham could not exit the “office” area of the

living room and Snow wanted Graham to be able to leave the room. Even

assuming Snow believed that she was confronted with a choice between allowing

the officers to search the bedroom again or having Graham restricted to the living

room, that does not mean the officers coerced her consent. Cf. United States v.

Salvador, 740 F.2d 752, 757 (9th Cir. 1984) (holding consent was voluntary where

person was given option of either an immediate consensual search or staying in a

motel while police secured the home and searched pursuant to a warrant the next

morning); see also Mendenhall, 446 U.S. at 559 n.7; Kim, 25 F.3d at 1432 n.4.

      AFFIRMED.




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