                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 28 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


RICHARD P. BRASKETT,                             No. 12-35723

              Plaintiff-Appellant,               D.C. No. 3:11-CV-01078-HU

  v.

CELESTE FENDER; NATHAN TOBEY,                    MEMORANDUM*

              Defendants-Appellees.


                 On Appeal from the United States District Court
                           for the District of Oregon
                 Dennis James Hubel, Magistrate Judge, Presiding

                            Submitted March 7, 2014**
                                Portland, Oregon

Before: TROTT and W. FLETCHER, Circuit Judges, and BLOCK, District
Judge.***




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
       ***
             The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
      Richard P. Braskett (“Braskett”) appeals a grant of summary judgment on

his claims, brought under 42 U.S.C. § 1983, that his Fourth Amendment rights

against unreasonable search and seizure were violated. Braskett claims that four

violations occurred over the course of two separate occasions when the defendants

visited his home.

      Braskett first claims that the defendants violated his rights when they moved

a gun from his bedroom to a locked box in the garage. The record establishes that

they did so at his wife’s request. His second claim is that the defendants searched

his medicine cabinet. However, because the record demonstrates that Braskett’s

wife retrieved pill bottles from the cabinet and voluntarily showed them to the

defendants, there was no search. The same undisputed fact resolves Braskett’s

third claim—that the defendants unlawfully copied down information from the pill

bottles—because the information was in plain view. See Kentucky v. King, 131 S.

Ct. 1849, 1855 (2011). Finally, Braskett claims that the defendants seized a

different pill bottle from a garage trash can, but his wife led them to the trash can,

where the bottle was contained in a transparent plastic bag.

      Braskett argues that his wife lacked the capacity to consent. Considering the

totality of the circumstances, see Schneckloth v. Bustamonte, 412 U.S. 218, 234

n.15 (1973), we conclude that the material undisputed facts demonstrate that


                                           2
Braskett’s wife had the capacity to understand the nature of her statements and

actions during the defendants’ visits.

      Braskett further argues that the defendants used a ruse to obtain entry into

his home by misrepresenting their intentions to his wife. Because the defendants’

conduct inside the house did not violate the Fourth Amendment, the means by

which they secured Braskett’s wife’s consent to enter did not violate the Fourth

Amendment, either. See United States v. Garcia, 997 F.2d 1273, 1280 (9th Cir.

1993).

      Braskett’s remaining arguments are without merit.

      AFFIRMED.




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