                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                      No. 08-30040
                Plaintiff-Appellee,
               v.                                 D.C. No.
                                               CR-07-00068-JLQ
DAVID T. BROWN,
                                                  OPINION
             Defendant-Appellant.
                                          
        Appeal from the United States District Court
           for the Eastern District of Washington
  Justin L. Quackenbush, Senior District Judge, Presiding

                  Submitted March 13, 2009*
                     Seattle, Washington

                       Filed April 17, 2009

     Before: William A. Fletcher, Ronald M. Gould and
            Richard C. Tallman, Circuit Judges.

                   Opinion by Judge Tallman




  *The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

                                4415
4418               UNITED STATES v. BROWN




                         COUNSEL

Kimberly A. Deater, Spokane, Washington, for the defendant-
appellant.

Aine Ahmed, Assistant United States Attorney, Spokane,
Washington, for the plaintiff-appellee.


                         OPINION

TALLMAN, Circuit Judge:

  David Brown pleaded guilty to being a felon in possession
of firearms and ammunition. On appeal, Brown contests the
denial of his pretrial motion to suppress the firearms and
ammunition seized during a search of the home in which he
had been staying for several nights. A co-occupant of the
home consented to the search. Brown had been arrested while
walking down the street, not far from the home, with the
female co-occupant, and was sitting in a police car in custody
when her consent was obtained. Brown contends that her
                   UNITED STATES v. BROWN                4419
consent was not voluntary, and furthermore that her consent
was ineffective as to him because officers should have sought
his permission pursuant to Georgia v. Randolph, 547 U.S. 103
(2006). We have jurisdiction under 28 U.S.C. § 1291, reject
his arguments, and affirm.

                              I

   On April 3, 2007, Special Agent Dale Watson of the
Bureau of Alcohol, Tobacco, Firearms and Explosives
received information from a confidential informant that
Brown, wanted on an outstanding warrant for the felony
offense of second degree assault, was staying at 807 East
Augusta Avenue (the “East Augusta Residence”) in Spokane,
Washington, and was in possession of two firearms. Agent
Watson and several members of the Spokane Gang Enforce-
ment Team set up surveillance in the neighborhood and soon
spotted Brown walking with Lacie Rishel. The officers
approached with guns drawn. Both Brown and Rishel were
ordered to the ground, handcuffed, and patted down for weap-
ons. No firearm was found on Brown’s person. The officers
arrested Brown on the outstanding warrant, placed him in a
squad car, and eventually transported him to the Spokane
County Jail. At no time did Agent Watson ask Brown for per-
mission to search the East Augusta Residence.

   Agent Watson initiated a discussion with Rishel while she
was in handcuffs. The parties dispute how long Rishel was in
handcuffs and when during her exchange with Agent Watson
they were removed. Because the district court denied Brown’s
suppression motion, we interpret the evidence from the sup-
pression hearing in the light most favorable to the government
absent a contrary factual finding by the court. See United
States v. Patayan Soriano, 361 F.3d 494, 501 (9th Cir. 2004).
Rishel informed Agent Watson that she lived at the East
Augusta Residence with her boyfriend, Devion Tensley, and
that Brown had been sleeping on their couch for the past few
nights as their guest. At the suppression hearing, Agent Wat-
4420                UNITED STATES v. BROWN
son and Rishel offered conflicting testimony on how the dis-
cussion progressed thereafter.

   Agent Watson testified that after informing Rishel that
Brown was likely in possession of two firearms and that these
were probably located at the East Augusta Residence, Rishel
“adamantly denied” this and stated, “Well, you know what,
you can come down and look if you want.” On cross-
examination, Agent Watson repeatedly denied that he or any
other officer told Rishel either that they had enough evidence
to get a search warrant or that they would “mess [the] house
up” and “slice [the] couches” if forced to obtain one.

   During direct and redirect examination, Rishel denied invit-
ing Agent Watson to search the East Augusta Residence. To
the contrary, Rishel claimed that the officers threatened not
only to lock her out until they obtained a search warrant, but
also to “tear [the] place apart” if forced to take that route. She
stated that she only agreed to the search because of these
threats. Upon cross-examination, however, Rishel also admit-
ted to Agent Watson’s version of the events:

    Q.    [D]o you recall telling agent Watson . . . that
          you didn’t believe that there were any firearms
          in your apartment and if he wanted to, he could
          search it, do you recall saying that to him?

    A.    Right, yes.

    Q.    Before he ever asked you anything about
          searching that apartment, any consent or what-
          ever, you offered him the opportunity to search
          your apartment, did you not?

    A.    Right.

(Emphasis added.) The district court found that Rishel sponta-
neously volunteered consent without any prompting by Agent
Watson.
                   UNITED STATES v. BROWN                  4421
   The parties agree that after her exchange with Agent Wat-
son, Rishel walked back to the East Augusta Residence alone.
Agent Watson testified that because Rishel expressed concern
that her landlord would be upset by law enforcement activity,
the officers removed some police insignia before meeting
Rishel at home. Rishel denied making such a request, and fur-
ther claimed that the officers were already waiting for her out-
side the East Augusta Residence when she arrived.

   Agent Watson’s and Rishel’s accounts of the search itself
are mostly in accord. After entering the apartment, Agent
Watson asked if he could search the area where Brown had
slept, and Rishel consented. Agent Watson found a semiauto-
matic pistol under a couch cushion. Upon probing by the
agents, Rishel revealed that the revolver was likely in the bed-
room she shared with Tensley. After Agent Watson asked
Rishel if he could search the bedroom and she consented, he
found a .357 caliber revolver in a chest of drawers.

   Tensley, Rishel’s boyfriend, arrived at the East Augusta
Residence after the officers had finished their search. Agent
Watson explained that Brown had been arrested on an out-
standing warrant, that Rishel had consented to a search of the
East Augusta Residence, and that two firearms had been
found. Because Rishel expressed fear of Tensley’s reaction
should he learn of her cooperation, Agent Watson also asked
Tensley not to be upset with Rishel for consenting to the
search—adding that he believed he had probable cause for a
search warrant and likely would have applied for one had he
needed to do so.

   Brown was charged by indictment with being a felon in
possession of a firearm and ammunition in violation of 18
U.S.C. §§ 922(g)(1) and 924. After hearing testimony, the dis-
trict court denied Brown’s motion to suppress the two fire-
arms and ammunition. The court found that Rishel gave
knowing and voluntary consent to search the apartment. The
court also concluded that the officers did not violate the man-
4422               UNITED STATES v. BROWN
date of Georgia v. Randolph, 547 U.S. 103 (2006), because
Brown was placed in the police car pursuant to his arrest and
prior to any discussion between Agent Watson and Rishel.
Brown pleaded guilty but reserved the right to appeal the dis-
trict court’s ruling.

                               II

   We review de novo the denial of a motion to suppress evi-
dence. United States v. Davis, 530 F.3d 1069, 1077 (9th Cir.
2008). We review the underlying factual findings for clear
error. Id.

                               A

   We first address Brown’s contention that the district court
erred in finding that Rishel validly consented to search of the
East Augusta Residence. “We review for clear error a district
court’s determination of the voluntariness of a defendant’s
consent to a search.” United States v. Todhunter, 297 F.3d
886, 891 (9th Cir. 2002). “Review under the clearly erroneous
standard is significantly deferential, ‘requiring for reversal a
definite and firm conviction that a mistake has been commit-
ted.’ ” United States v. Elliott, 322 F.3d 710, 714 (9th Cir.
2003) (quoting United States v. Maldonado, 215 F.3d 1046,
1050 (9th Cir. 2000)). Moreover, “evidence regarding the
question of consent must be viewed in the light most favor-
able to the fact-finder’s decision.” Patayan Soriano, 361 F.3d
at 501 (quoting United States v. Kaplan, 895 F.2d 618, 622
(9th Cir. 1990)). Thus, “[w]here there are two permissible
views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.” Id. at 503 (quoting United
States v. Garcia, 135 F.3d 667, 671 (9th Cir. 1998)).

  [1] A warrantless search is unconstitutional unless the gov-
ernment demonstrates that it “fall[s] within certain established
and well-defined exceptions to the warrant clause.” United
States v. Murphy, 516 F.3d 1117, 1120 (9th Cir. 2008) (quot-
                   UNITED STATES v. BROWN                   4423
ing United States v. Delgadillo-Velasquez, 856 F.2d 1292,
1298 (9th Cir. 1988)). Consent constitutes one such excep-
tion: “[A warrantless] search conducted pursuant to a valid
consent is constitutionally permissible.” Schneckloth v. Busta-
monte, 412 U.S. 218, 222 (1973). The government bears the
burden of proving that consent was voluntary. Patayan Sori-
ano, 361 F.3d at 501. Whether consent to search was volun-
tarily given is “to be determined from the totality of all the
circumstances.” Schneckloth, 412 U.S. at 227. We consider
five factors in determining voluntariness:

    (1) whether the [consenting individual] was in cus-
    tody; (2) whether the arresting officers had their
    guns drawn; (3) whether Miranda warnings were
    given; (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. United States v.
    Jones, 286 F.3d 1146, 1152 (9th Cir. 2002) (citing
    United States v. Castillo, 866 F.2d 1071, 1082 (9th
    Cir. 1989)). These factors serve merely as guide-
    posts, “not [as] a mechanized formula to resolve the
    voluntariness inquiry.” Patayan Soriano, 361 F.3d at
    502. Moreover, no one factor is determinative. Id.

   [2] With respect to the first factor, a seizure occurs “when,
‘taking into account all of the circumstances surrounding the
encounter, the police conduct would have communicated to a
reasonable person that he was not at liberty to ignore the
police presence and go about his business.’ ” United States v.
Washington, 387 F.3d 1060, 1068 (9th Cir. 2004) (quoting
Florida v. Bostick, 501 U.S. 429, 437 (1991)) (internal quota-
tion marks omitted). The Ninth Circuit has identified five fac-
tors that aid in determining whether a person’s liberty has
been so restrained:

    (1) the number of officers; (2) whether weapons
    were displayed; (3) whether the encounter occurred
4424                    UNITED STATES v. BROWN
     in a public or non-public setting; (4) whether the
     officer’s officious or authoritative manner would
     imply that compliance would be compelled; and (5)
     whether the officers advised the detainee of his right
     to terminate the encounter.

Id. (citing Orhorhaghe v. INS, 38 F.3d 488, 494-96 (9th Cir.
1994)).

   [3] Taking into account all of the circumstances surround-
ing her encounter with Agent Watson, we conclude that
Rishel was not in custody. Although Brown and Rishel were
admittedly approached by five or six officers with guns drawn
—and were both ordered to the ground, handcuffed, and pat-
ted down for weapons—all these events occurred in a public
setting and there is no evidence that police continued to dis-
play their weapons after Brown and Rishel were safely
secured. Moreover, subsequent events would have communi-
cated to a reasonable person that she was free to terminate the
encounter. Paramount among these is that the officers treated
Brown and Rishel very differently. Brown was arrested,
placed in a squad car, and driven to the Spokane County Jail.
By contrast, before Rishel consented to search of the East
Augusta Residence, Agent Watson had released her from
handcuffs and informed her that she was not under arrest.1 He
retrieved the key to the East Augusta Residence from
Brown’s front pocket and gave it to Rishel, who returned to
   1
     The district court found that Rishel was released from handcuffs and
informed that she was not under arrest before Agent Watson informed her
that Brown was in possession of firearms. Rishel admitted on cross-
examination that upon removing the handcuffs, Agent Watson informed
her that she “was free to go.” Moreover, she also admitted on cross that
after telling her she was free to leave, Agent Watson then “proceeded to
tell [her] . . . that Mr. Brown . . . had a couple of firearms.” Because Agent
Watson shared his information on Brown before Rishel consented to the
search, the district court did not clearly err in finding that Rishel was not
handcuffed and had been informed that she was not under arrest when she
gave consent.
                     UNITED STATES v. BROWN                    4425
the apartment alone. According to Agent Watson, at Rishel’s
request, police removed their insignia before joining her at the
apartment to conduct the search. Once inside the East Augusta
Residence, Agent Watson specifically sought Rishel’s consent
to search the room where Brown had slept as well as the bed-
room occupied by Rishel and Tensley. This police conduct
would not have communicated to a reasonable person that she
was not at liberty to ignore the police presence and go about
her business.

   [4] The remaining voluntariness factors do not tip the
scales in Brown’s favor. While officers first approached both
Brown and Rishel with guns drawn, Brown does not contend
that those weapons were still displayed after he and Rishel
had been handcuffed. Rishel was not in custody, so “Miranda
warnings were inapposite.” Patayan Soriano, 361 F.3d at 504.
Although Agent Watson admittedly did not notify Rishel that
she had a right not to consent to search, this factor is not an
absolute requirement for a finding of voluntariness, Schnec-
kloth, 412 U.S. at 248-49, and also seems inapposite given
that Rishel volunteered consent without any prompting whatso-
ever.2 Finally, although the district court made no express
finding with respect to whether either Agent Watson or
another officer informed Rishel that they could obtain a war-
rant, the evidence does not support this contention. During
cross-examination, Agent Watson denied that any officer
threatened to obtain a warrant. He also admitted telling Tens-
ley after the search that he had probable cause to obtain a
warrant, but implied that he did so because Rishel feared her
boyfriend’s reaction should he discover that she voluntarily
consented to the search. Rishel’s testimony expressly supports
this motivation.

  [5] Given these circumstances, the district court did not
  2
   As Rishel specifically admitted during cross- examination that she
spontaneously invited Agent Watson to search the East Augusta Resi-
dence, the district court did not clearly err in so finding.
4426               UNITED STATES v. BROWN
clearly err in finding that Rishel voluntarily consented to
search of the East Augusta Residence.

                               B

   [6] In Georgia v. Randolph, the Supreme Court held that an
occupant’s consent to the warrantless search of a residence is
not valid as to a physically present co-occupant who expressly
refuses consent. 547 U.S. 103, 120 (2006). In so holding, the
Supreme Court distinguished and expressly preserved its prior
holdings in United States v. Matlock, 415 U.S. 164 (1974),
and Illinois v. Rodriguez, 497 U.S. 177 (1990).

       The second loose end is the significance of
    Matlock and Rodriguez after today’s decision.
    Although the Matlock defendant was not present
    with the opportunity to object, he was in a squad car
    not far away; the Rodriguez defendant was actually
    asleep in the apartment, and the police might have
    roused him with a knock on the door before they
    entered with only the consent of an apparent co-
    tenant. If those cases are not to be undercut by
    today’s holding, we have to admit that we are draw-
    ing a fine line; if a potential defendant with self-
    interest in objecting is in fact at the door and objects,
    the co-tenant’s permission does not suffice for a rea-
    sonable search, whereas the potential objector,
    nearby but not invited to take part in the threshold
    colloquy, loses out.

       This is the line we draw, and we think the formal-
    ism is justified. So long as there is no evidence that
    the police have removed the potentially objecting
    tenant from the entrance for the sake of avoiding a
    possible objection, there is practical value in the sim-
    ple clarity of complementary rules, one recognizing
    the co-tenant’s permission when there is no fellow
    occupant on hand, the other according dispositive
                   UNITED STATES v. BROWN                 4427
    weight to the fellow occupant’s contrary indication
    when he expresses it.

Randolph, 547 U.S. at 121-22 (emphasis added). Seizing on
the emphasized language, Brown argues that officers placed
him in the squad car in order to avoid his possible objection
to a search of the East Augusta Residence.

   [7] The record does not support Brown’s claim. While
Agent Watson admitted focusing on Rishel rather than Brown
in his effort to access the East Augusta Residence and secure
the firearms in Brown’s possession, Brown’s claim that he
was intentionally removed to avoid his objection during the
consent colloquy with Rishel is mere speculation. See United
States v. McKerrell, 491 F.3d 1221, 1228 (10th Cir. 2007)
(upholding validity of co-tenant’s consent to search where
“McKerrell has not directed our attention to anything suspi-
cious about the procedures that the police employed” and
“[i]nstead . . . essentially urges us to accept his unjustified
speculations and circumvent Randolph’s evidentiary require-
ment”), cert. denied, 128 S. Ct. 553 (2007). Officers placed
Brown in the squad car pursuant to his lawful arrest on the
assault charge and to transport him to the Spokane County
Jail. See United States v. Wilburn, 473 F.3d 742, 745 (7th Cir.
2007) (“Wilburn was validly arrested . . . and he was lawfully
kept in a place—the back seat of a squad car—where people
under arrest are usually held. Given these facts, the police
were not obligated to bring Wilburn to [his co-tenant] so he
could be a party to the discussion regarding consent.”), cert.
denied, 127 S. Ct. 2958 (2007). Brown points to no evidence
to the contrary.

   Brown nonetheless relies on United States v. Murphy, in
which we held that “[i]f the police cannot prevent a co-tenant
from objecting to a search through arrest, surely they cannot
arrest a co-tenant and then seek to ignore an objection he has
already made.” 516 F.3d at 1124-25 (emphasis added). But
we said this in the context of the same Randolph passage
4428                   UNITED STATES v. BROWN
quoted above, and were thus referring to a pretextual arrest
made for the specific purpose of preventing the arrestee’s sub-
sequent objection to the search. Again, there is no evidence
that Brown’s arrest was motivated by any purpose other than
removing from the streets of Spokane a felon wanted on an
outstanding warrant for second degree assault and reportedly
in possession of firearms. Moreover, the emphasized language
is dictum as the arrestee in Murphy had in fact refused con-
sent to search; the search conducted was predicated on con-
sent obtained two hours later from a co-tenant. Id. at 1124.

   [8] That Agent Watson retrieved from Brown’s pocket the
key to the East Augusta residence after obtaining Rishel’s con-
sent,3 and thus had an additional opportunity to obtain
Brown’s consent, does not alter the fact that Brown was justi-
fiably absent from the search colloquy. Moreover, in light of
the policy justifications provided in Randolph for the “fine
line” drawn therein, Agent Watson’s decision not to seek con-
sent from Brown does not invalidate the consent spontane-
ously volunteered by Rishel. Cf. United States v. Lopez, 547
F.3d 397, 400 (2d Cir. 2008) (“[W]e hold that the marshals
had no duty to ask Lopez whether he consented to the search,
no matter how easy or convenient it might have been to do
so.”), cert. denied, __ S. Ct. __, 2009 WL 357581 (Mar. 23,
2009); United States v. Ayoub, 498 F.3d 532, 540 (6th Cir.
2007) (upholding validity of co-occupant’s consent even
though the court “f[ou]nd it curious that the officers never
asked Ayoub for consent to search, though they had every
opportunity—especially when they pulled him over as he left
the house”), cert. denied, 129 S. Ct. 37 (2008).

   [9] Seeking Brown’s consent would have “needlessly
  3
    The district court found that Agent Watson took the key from Brown’s
pocket after Rishel consented to a search of the East Augusta Residence.
It did not clearly err in reaching this conclusion because the testimony
established two equally plausible versions of the events. See Patayan Sori-
ano, 361 F.3d at 503.
                   UNITED STATES v. BROWN                    4429
limit[ed] the capacity of the police to respond to ostensibly
legitimate opportunities in the field.” Randolph, 547 U.S. at
122. Agent Watson encountered two such opportunities on the
day he arrested Brown—he encountered Brown in the com-
pany of a co-occupant, and that co-occupant later spontane-
ously volunteered consent to a search of the shared residence.
These two legitimate opportunities allowed Agent Watson to
remove from a felon’s possession both a semiautomatic pistol
and a revolver. Moreover, a contrary finding would open the
door to turning every such case “into a test about the ade-
quacy of the police’s efforts to consult with a potential objec-
tor.” Id.

  Finally, the Supreme Court noted in Randolph that

    [t]he pragmatic decision to accept the simplicity of
    this line is . . . supported by the substantial number
    of instances in which suspects who are asked for per-
    mission to search actually consent, albeit impru-
    dently, a fact that undercuts any argument that the
    police should try to locate a suspected inhabitant
    because his denial of consent would be a foregone
    conclusion.

Id. Even if, upon retrieving the key, Agent Watson had asked
Brown for permission to search the East Augusta Residence,
it is possible that Brown would have granted his consent, his
current claims to the contrary notwithstanding.

  [10] We thus agree with the district court that Agent Wat-
son did not violate the Supreme Court’s mandate in Randolph.

  AFFIRMED.
