                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                            February 10, 2016
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 15-4082
                                                 (D.C. No. 2:14-CR-00260-RJS-PMW-1)
EDGAR FLORES,                                                   (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

       Edgar Flores was indicted on drug and firearms charges in the District of Utah.

He filed a motion to suppress evidence seized during the search of a car rented to his

wife. When that motion was denied, Mr. Flores entered a guilty plea conditioned on his

right to appeal the district court’s adverse ruling. That appeal is now before us.

       We have jurisdiction under 28 U.S.C. § 1291. Finding no clear error in the district

court’s determination that police had consent to conduct the search, we affirm.

       *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
                                   I. BACKGROUND

       In May 2014, a grand jury indicted Mr. Flores on one count of possession with

intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1); one count of using a

firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(A); and

one count of being an illegal alien in possession of a firearm, in violation of 18 U.S.C.

§ 922(g). The charges grew out of his arrest on May 6, 2014, when police found drugs,

cash, a handgun, and a digital scale in a car Mr. Flores had been driving. Mr. Flores filed

a motion to suppress, arguing the police lacked a warrant to search the vehicle and no

exception to the warrant requirement applied.

                                   A. Factual History

       On September 3, 2014, the district court conducted an evidentiary hearing at

which Mr. Flores’s wife and three of the arresting officers testified. The following facts

are largely taken from the testimony presented at that hearing.

1. Attempted Arrest of Mr. Flores

       The South Salt Lake police received a tip that Mr. Flores had been involved in an

April 2014 drug-related shooting at the Southern Exposure strip club. On May 6, 2014,

Officer Chad Leetham and several other members of the South Salt Lake Police

Department attempted to arrest Mr. Flores at his West Valley City townhome. Mr.

Flores, who had been exiting his front door when the officers pulled up, immediately re-

entered the house and fled out the back door to evade capture.

       His wife, Janeth Soto, was in the house when the officers arrived. She initially

told police she did not know who had run through the house, but she later admitted, after


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the police “asked her who Edgar was,” that the man who escaped out the back door was

Mr. Flores. ROA, Vol. 2 at 45.

         While at Mr. Flores’s house, police learned from Ms. Soto that she had recently

rented a vehicle from Enterprise Rent-A-Car. Officer Leetham contacted the nearby

Enterprise office. An employee told him Ms. Soto’s vehicle was due to be returned by 4

p.m. Officer Leetham then relayed this information to officers in the narcotics unit.

2. Stakeout at Enterprise

         That afternoon, Detective Clayton Anderson led a team of five officers to the

Enterprise car rental in West Valley City. Three of the officers stationed themselves in

two unmarked vehicles in the Enterprise parking lot; two other officers in a third

unmarked vehicle were parked across the street. About 40 minutes later, Mr. Flores

arrived in the rental car, with Ms. Soto in the front passenger seat and their daughter in

the back. He parked the car in the lot while Ms. Soto entered the office to extend her

lease.

         As soon as Ms. Soto was inside, the officers surrounded the rental car with their

vehicles to “box [Mr. Flores] in.” ROA, Vol. 2 at 16. With their weapons drawn, they

removed Mr. Flores from the rental, placed him in handcuffs, and moved him toward the

rear of the vehicle. Someone in the leasing office who saw the arrest yelled “Guns, guns,

guns,” prompting Ms. Soto to rush out into the parking lot. ROA, Vol. 2 at 75. Detective

Anderson, fearful that Ms. Soto’s involvement could destabilize an already-tense

situation, instructed her not to approach the site of the arrest. According to Detective

Anderson, Ms. Soto was not free to leave at that time. Ms. Soto testified she was “scared


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and frightened” for the safety of her daughter, who was still in the vehicle’s back seat.

ROA, Vol. 2 at 76.

       In the next several minutes, one of the officers removed Ms. Soto’s daughter from

the rented vehicle and brought her to Ms. Soto, who had been anxiously demanding that

they be reunited. Detective Anderson testified that after Ms. Soto’s daughter had been

returned to her and he had put away his weapon, he asked for permission to search the

rental vehicle. When asked on cross-examination whether he was sure the child had been

returned to Ms. Soto before—and not after—he requested consent, Detective Anderson

responded that he “[c]ouldn’t say 100 percent.” ROA, Vol. 2 at 32. Ms. Soto allegedly

“paused” in response to Detective Anderson’s question, and he informed her she was free

to say no. ROA, Vol. 2 at 17. According to Detective Anderson, Ms. Soto then agreed to

allow the search.

       Officer Jeff Snelten, who assisted with the arrest, confirmed that he heard

Detective Anderson request consent and Ms. Soto grant it. But Ms. Soto testified she had

no memory of being asked for her consent. She said she did not recall telling Detective

Anderson he could search the car.

       Detective Anderson’s search of the vehicle turned up two dime bags of crystal

methamphetamine, an envelope containing cash, and a .25 millimeter handgun. At this

point, Detective Anderson testified, Ms. Soto told him, “You can’t search my car. You

can’t do this.” ROA, Vol. 2 at 19. Officer Snelten provided similar testimony. Ms. Soto

said she asked one of the officers, “Don’t you need a search warrant to search my car?”

ROA, Vol. 2 at 78. When the officer said that no warrant was required because she had


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consented to the search, Ms. Soto responded, “I did not—I do not remember you—I did

not understand that.” ROA, Vol. 2 at 78.

       Detective Anderson continued his search. In the vehicle’s trunk he discovered a

backpack containing a large digital scale, a plastic cup full of heroin, and another tightly

wrapped package of heroin. After Mr. Flores claimed ownership of the backpack, police

took him into custody and transported him to the police station.

                 B. District Court’s Ruling on the Motion to Suppress

       Mr. Flores contended in his briefing before the district court that Detective

Anderson’s warrantless search of the vehicle was not justified by any recognized

exception to the warrant requirement. The Government argued Mr. Flores lacked

standing to challenge the search of the vehicle, since it was rented to his wife and he had

no possessory interest in the vehicle. And even if Mr. Flores had standing, the

Government maintained, the police were not required to obtain a warrant because Ms.

Soto consented to the search.

       The district court held Mr. Flores had no “‘legitimate possessory or ownership

interest’ in the rental car” and therefore lacked standing to challenge the search. ROA,

Vol. 1 at 21 (quotation omitted). Assuming he did have standing, however, Mr. Flores’s

motion still lacked merit because the officers’ search was permissible under the consent

exception to the Fourth Amendment warrant requirement.

       This latter holding rested on two factual findings. First, the district court found as

a fact that Ms. Soto consented to the search of the rental car. Detective Anderson and

Officer Snelten “both testified unequivocally” that Ms. Soto had given consent. ROA,


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Vol. 1 at 22. The court found this testimony credible, especially in light of Ms. Soto’s

testimony that she “simply d[id] not remember giving Detective Anderson her consent.”

Id. Second, the court found that “under the totality of the circumstances, Ms. Soto’s

consent to search the rental car was given voluntarily.” Id. As the court explained:

       The events at issue took place in late afternoon daylight, in the open
       parking lot of a publicly-visible business, and where there was at least one
       Enterprise employee on the scene. Although the entire situation was
       undoubtedly unnerving, there is no evidence of any threat or show of force
       made to frighten or intimidate Ms. Soto into consenting to the search.
       Detective Anderson testified that he had “absolutely” put away his firearm
       before he asked Ms. Soto if he could search the rental car, and Ms. Soto
       similarly testified that the police had put away their weapons after she left
       the Enterprise building. Ms. Soto and the law enforcement witnesses all
       testified that officers returned Ms. Soto’s child to her moments after she
       came outside the rental car office. Detective Anderson testified this
       reunion occurred before he obtained her consent to search the rental car.

Id. at 22-23 (citations and footnote omitted).

       The district court therefore denied Mr. Flores’s motion to suppress. On April 2,

2015, Mr. Flores pled guilty to counts one (possession with intent to distribute) and two

(using a firearm in furtherance of drug trafficking) of the indictment. The plea agreement

preserved Mr. Flores’s right to appeal the district court’s denial of his motion to suppress,

under Federal Rule of Criminal Procedure 11(a)(2). He received a sentence of 210

months in prison, followed by five years of supervised release. Upon release Mr. Flores,

who is not a U.S. citizen, is to be remanded to the custody of Immigration and Customs

Enforcement for deportation proceedings.

       Mr. Flores filed a timely notice of appeal on April 29, 2015. See Fed. R. App. P.

4(b)(4); Doc. 50.



                                             -6-
                                     II. DISCUSSION

       Mr. Flores argues the district court erred by (1) concluding he lacked standing to

challenge the search of the rental vehicle and (2) finding Ms. Soto voluntarily consented

to that search. We need not address the former contention. Even assuming Mr. Flores

had standing to challenge the search, the district court did not clearly err in finding the

police had consent to conduct that search.1 We therefore affirm.

                                 A. Standard of Review

       “A denial of a motion to suppress is reviewed de novo.” United States v. Benoit,

713 F.3d 1, 8 (10th Cir. 2013). Underlying fact findings are reviewed for clear error. Id.

       “Whether a person gave voluntary consent is a question of fact to be determined

by the totality of the circumstances and is reviewed for clear error.” United States v.

Salas, 756 F.3d 1196, 1203 (10th Cir. 2014). “A district court’s factual finding is clearly

erroneous when it is without factual support in the record or if, after reviewing all the

evidence, we are left with a definite and firm conviction that a mistake has been made.”

United States v. Cash, 733 F.3d 1264, 1273 (10th Cir. 2013) (quotation omitted).

       “The credibility of witnesses, the weight to be given evidence, and the reasonable

inferences drawn from the evidence fall within the province of the district court.” Id.

       1
         “[R]eference to ‘standing’ in a Fourth Amendment context is a misnomer
because such standing is not jurisdictional. Rather, the question of whether a defendant
can show a violation of his own Fourth Amendment rights is more properly placed within
the purview of substantive Fourth Amendment law than within that of standing.” United
States v. Creighton, 639 F.3d 1281, 1286 n.2 (10th Cir. 2011) (quotation omitted).
Accordingly, we may proceed to the question of consent without first deciding whether
Mr. Flores had standing to object to the search of his wife’s rental vehicle.



                                              -7-
(quotation omitted). “We give special deference to such credibility determinations,

which can virtually never be clear error.” United States v. Kimoana, 383 F.3d 1215, 1226

(10th Cir. 2004) (quoting United States v. Pedroza, 269 F.3d 821, 826 (7th Cir. 2001)).

       “Not only do we accept the district court’s factual findings unless they are clearly

erroneous, but we also construe the evidence in the light most favorable to the district

court’s ruling.” United States v. Winder, 557 F.3d 1129, 1133 (10th Cir. 2009).

                                      B. Analysis

1. Legal Principles

       “Subject to limited exceptions, the Fourth Amendment prohibits warrantless

searches.” Benoit, 713 F.3d at 8 (citation omitted). “Voluntary consent to search is one

such exception.” United States v. Jones, 701 F.3d 1300, 1317 (10th Cir. 2012) (quotation

omitted).

       “The government bears the burden of showing the consent was voluntary by

(1) proffering clear and positive testimony that consent was unequivocal and specific and

freely given and (2) proving that this consent was given without implied or express

duress or coercion.” Salas, 756 F.3d at 1203 (quotation omitted). Consent may be either

express or implied. Jones, 701 F.3d at 1317.

       In determining whether consent was freely given, “some of the relevant

considerations include”:

       physical mistreatment, use of violence, threats, promises, inducements,
       deception, trickery, or an aggressive tone, the physical and mental
       condition and capacity of the [person who gave consent], the number of
       officers on the scene, and the display of police weapons. Whether an officer
       . . . obtains consent pursuant to a claim of lawful authority, or informs


                                             -8-
       [someone] of his or her right to refuse consent also are factors to consider
       in determining whether consent given was voluntary under the totality of
       the circumstances.

Id. at 1318 (quotation omitted).

2. Application to Mr. Flores’s Case

       Mr. Flores does not argue Ms. Soto lacked authority to consent to the officers’

request to search. He also does not argue that her consent became invalid when she

attempted to revoke it after officers discovered drugs, cash, and a handgun in the car.

Instead, he asserts only that (1) Ms. Soto did not consent at all and, in the alternative, (2)

to the extent she did consent, her consent was not voluntarily given.

       The district court found Ms. Soto freely and voluntarily consented to a search of

her rental car. Nothing in the record suggests this factual finding was clearly erroneous.

       Ms. Soto and the officers provided conflicting testimony regarding whether

Detective Anderson ever requested consent to search. Whereas Ms. Soto said merely that

she did not remember being asked, Detective Anderson and Officer Snelten both testified

without reservation that Ms. Soto had agreed to the search. The officers’ testimony was

more definitive, and the district court found it credible after observing all witnesses

testify in person. Because “credibility determinations . . . can virtually never be clear

error,” Kimoana, 383 F.3d at 1226 (quotation omitted), we see no reason to disturb the

district court’s finding that Ms. Soto consented to the officers’ search.

       Ms. Soto also said she was “scared and frightened” before her daughter was

returned to her. ROA, Vol. 2 at 76. But Detective Anderson testified he requested

consent only after Ms. Soto had been reunited with her daughter, and that he had put


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away his weapon by that point. Although he admitted on cross-examination that he was

not “100 percent” certain he had returned Ms. Soto’s daughter to her by the time he

requested consent, ROA, Vol. 2 at 32, the district court could credit his testimony that he

had done so, Kimoana, 383 F.3d at 1226.

       There is no evidence in the record of “physical mistreatment, use of violence,

threats, promises, inducements, deception, trickery, or an aggressive tone” in Detective

Anderson’s interactions with Ms. Soto. Jones, 701 F.3d at 1318. As the district court

explained, their conversation occurred in a public place during broad daylight, with at

least one third-party witness present. The record provides no basis for concluding the

district court clearly erred in finding Ms. Soto’s consent was free and voluntary.

                                   III. CONCLUSION

       Even assuming Mr. Flores had standing to object to the search of his wife’s rental

vehicle, that search was lawful. There is no record support for the proposition that the

district court’s consent findings were clearly erroneous. We therefore affirm.


                                              ENTERED FOR THE COURT,



                                              Scott M. Matheson, Jr.
                                              Circuit Judge




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