                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 13 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-30369

              Plaintiff-Appellee,                D.C. No.
                                                 1:15-cr-00042-BLW-1
 v.

JAMES ERIC BURROW,                               MEMORANDUM*

              Defendant-Appellant.


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

                      Argued and Submitted February 8, 2017
                               Seattle, Washington

Before: FISHER, PAEZ, and CALLAHAN, Circuit Judges.

      This case involves a search of James Burrow’s home by a bondsman, Kevin

Ratigan, which resulted in Burrow’s arrest and, ultimately, conviction for being a

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Burrow

moved to suppress the evidence supporting his conviction, arguing that Ratigan



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
was acting as a government agent at the time of the search, that Ratigan’s search

violated the Fourth Amendment, and that the warrant obtained based on Ratigan’s

search was invalid. The District Court found that Burrow consented to the search

and denied the motion to suppress. Following his conviction, Burrow appealed

this decision. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      1.     We review de novo the denial of a motion to suppress evidence.

United States v. Cervantes, 703 F.3d 1135, 1138 (9th Cir. 2012). Underlying

factual findings are reviewed for clear error. Id. Whether a defendant freely and

voluntarily consented to a search is a question of fact, and is therefore reviewed for

clear error. United States v. Cormier, 220 F.3d 1103, 1112 (9th Cir. 2000).

      2.     Warrantless searches violate the Fourth Amendment unless an

accepted and well-defined exception applies. United States v. Brown, 563 F.3d

410, 414 (9th Cir. 2009). Consent is such an exception, but the government bears

the burden of proving that the consent was voluntary. Id. at 415. Whether consent

was freely and voluntarily given depends on the totality of circumstances. See

Birchfield v. N. Dakota, 136 S. Ct. 2160, 2186 (2016); United States v. Basher,

629 F.3d 1161, 1168 (9th Cir. 2011). Generally, we apply the five factors

identified in Castillo to determine voluntariness:




                                          2
      (1) whether the defendant was in custody; (2) whether the arresting officers
      had their guns drawn; (3) whether Miranda warnings were given;
      (4) whether the defendant was notified that she had a right not to consent;
      and (5) whether the defendant 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. 10988)).

      3.     Here, the search was conducted by a private citizen allegedly acting as

a government agent. The Castillo factors are thus ill-suited to determining whether

Burrow freely and voluntarily consented to Ratigan’s search. Instead, we look to

the totality of the circumstances.

      4.     Citing to Bumper v. North Carolina, 391 U.S. 543 (1968), Burrow

contends that his consent to Ratigan’s entry and search was tainted by coercion

because Burrow was merely acquiescing to Ratigan’s claim of right as a

bondsman. But Burrow freely consented to contractual terms giving Ratigan a

claim of right to enter and search his home when he signed the bail bond contract.

That Ratigan later enforced this right does not mean that Burrow’s consent was

coerced or involuntary. Bumper therefore does not require reversal, and the




                                         3
District Court’s determination that Burrow consented to Ratigan’s search was not

clearly erroneous.1

      We recognize Burrow consented contractually only to a search for Matthew

Cohagan, not for a search into his own criminal conduct. But no reasonable

factfinder could find that looking for Cohagan was not at least one significant

motive for Ratigan’s search. The search therefore fell within the scope of

Burrow’s consent. Cf. United States v. Cleaveland, 38 F.3d 1092, 1094 (9th Cir.

1994) (holding a private person was not acting as an agent for the police when he

had “a legitimate, independent motive apart from crime detection or prevention”

for the search and the police participation in the search was not extensive).

      Although the dissent maintains that a reasonable factfinder could conclude

Ratigan conducted the December 31 search solely to incriminate Burrow and not at

all to locate Cohagan, we respectfully disagree. Ratigan testified that his purpose

in conducting the December 31 search was to search for Cohagan. Cohagan

ultimately was found at Burrow’s residence on January 6. The December 31

search was part of a series of seven or eight searches Ratigan conducted between

November 7 and December 31. No one disputes that this series of searches was


      1
             We need not reach whether Ratigan was acting as a government agent
when he entered and searched Burrow’s home because, even if he was, Burrow
consented to this conduct.
                                          4
designed to find Cohagan. Ratigan testified that he conducted the search on

December 31—New Year’s Eve—because that is a good time to catch fugitives.

The fact that Ratigan, who was alone, chose not to attempt to enter the bathroom,

where he believed Cohagan might be barricaded and armed, does not negate this

motive.

      We recognize that this court is not empowered to decide disputed factual

issues. See United States v. Carbajal, 956 F.2d 924, 930–31 (9th Cir. 1992). But

Carbajal does not require us to remand for factfinding when the evidence admits

of only a single conclusion, here that finding Cohagan was “at least one significant

motive” for Ratigan’s December 31 search. Dissent at 2.

      AFFIRMED.




                                          5
                                                                          FILED
United States v. Burrow, No. 15-30369
                                                                           JUN 13 2017
PAEZ, J., dissenting:                                                 MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS


      I part company with the majority because, in my view, the record does not

clearly establish whether Ratigan was looking for Cohagan during the December

31 search. That day, Ratigan searched Burrow’s home only after meeting with

Davenport, providing him with a written statement, and later learning that the

information he had previously provided was stale. After Davenport told Ratigan

he could not use his “good” information, Ratigan immediately returned to

Burrow’s home. After his first attempt to search Burrow’s home failed, he

immediately called Davenport to explain that he was going to make a second

attempt “[to] see if we can’t get something for you.” After making a successful

second attempt, he immediately called Davenport a second time. And even though

he did not find Cohagan, Ratigan did not attempt to search the home again.

      Ratigan’s testimony at the suppression hearing indicates that finding

Cohagan was not the purpose of the December 31 search. He testified that he

suspected Cohagan was in the padlocked bathroom all along, but that he “didn’t

want to go into the bathroom” because he was afraid Cohagan was hiding in it with

a gun. Although Ratigan’s fear of harm might be reasonable, it confirms that he

was not motivated to find Cohagan. A reasonable factfinder could conclude that

Ratigan’s only motivation for the December 31 search was to look for Burrow’s
firearm.

         These facts distinguish this case from Miller. See United States v. Miller,

688 F.2d 652, 656–58 (9th Cir. 1982). In that case, a private party pretended to be

a customer in order to find out if a man selling farm equipment had stolen his

property. Id. Thus, “he had an independent motive (recovering his own property)

during the entire course of the search.” United States v. Reed, 15 F.3d 928, 933 n.6

(9th Cir. 1994) (distinguishing Miller). The same cannot be said of Ratigan, who

purposefully did not attempt to access the one location where he thought Cohagan

might be found.

         Here, a reasonable factfinder could determine that Ratigan exceeded the

scope of Burrow’s contractual consent because finding Cohagan was not “at least

one significant motive” for his December 31 search. If Ratigan exceeded the scope

of Burrow’s consent, then it matters whether he was acting as a government agent.

If he was, the December 31 search violated the Fourth Amendment. As the district

court did not address any of the underlying factual questions, and because I do not

believe the facts are as clear-cut as the majority believes, I would remand for the

district court to decide these questions in the first instance. See Fed. R. Crim. P.

12(d).

         For these reasons, I respectfully dissent.

                                             2
