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

                                   TENTH CIRCUIT                           January 29, 2013

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,                                 No. 12-5124
                                                   (D.C. No. 4:12-CR-00034-GKF-1)
 v.                                                           (N.D. Okla.)

 JASON WAYNE WHITE,

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


       In February 2012, Jason Wayne White was charged in a three-count indictment

with firearm- and drug-related offenses. Mr. White unsuccessfully moved to suppress

evidence seized from his home, entered a conditional guilty plea, and was sentenced to 53

months of imprisonment. He now appeals from the district court’s denial of his motion to


        *After examining Appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
suppress.

       Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                    I. BACKGROUND

   A. Factual History

       The district court held a hearing on Mr. White’s motion to suppress. Mr. White

presented one witness, his mother Loretta Webster. Her testimony of the events leading

up to Mr. White’s arrest differed from the testimony of officers who testified for the

Government. The district court determined that the officers’ testimony was “far more

believable” than Ms. Webster’s testimony. ROA, Vol. II at 72. We give deference to the

district court’s determinations of witness credibility, review its factual findings for clear

error, and view the facts in the light most favorable to the Government. United States v.

Jones, 701 F.3d 1300, 1308 (10th Cir. 2012).

       On December 12, 2011, officers from the Claremore Police Department responded

to a report that a male was attempting suicide with a handgun. Sergeant Stephen Cox,

Officer David Thirion, and Officer Lance Jenson arrived at the residence and encountered

Ms. Webster on the front lawn. She told the officers that Mr. White’s friend, Laura

Dorsch, had called her at work to tell her that Mr. White was suicidal and had pointed a

handgun to his head. Ms. Webster told the officers that Ms. Dorsch had secured the

handgun, given it to Ms. Webster, and left the home.




                                              -2-
      Ms. Webster led the officers into her home and showed them the location of Mr.

White’s upstairs bedroom. Sergeant Cox called up to his bedroom from the bottom of the

stairs and instructed Mr. White to show his hands. Mr. White did so and was handcuffed.

      Sergeant Cox asked where the gun was, and Mr. White directed him to a safe.

Sergeant Cox located the safe, which had its door open, and saw that it was empty.

Officers Thirion and Jenson also entered Mr. White’s room to retrieve his clothing. The

officers noticed drug paraphernalia in plain view on Mr. White’s nightstand, and Officer

Jenson took possession of it. When asked about the drug paraphernalia, Mr. White

admitted to drug use.

      Captain Milburn Litterell then arrived at the home. He spoke with Ms. Webster,

who said she had taken and hidden the handgun. Captain Litterell asked whether he

could have the gun. Ms. Webster agreed, and he followed her into her bedroom, where

she retrieved a Springfield XD .45 caliber handgun from the far side of the bed and

handed it to Captain Litterell. Mr. White was then transported to a nearby hospital.

   B. Procedural History

      On February 7, 2012, Mr. White was indicted on three charges: possession of a

firearm and ammunition by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),

possession of a firearm and ammunition by an unlawful user of a controlled substance in

violation of §§ 922(g)(3) and 924(a)(2), and possession of a firearm and ammunition after

conviction of a misdemeanor crime of domestic violence in violation of §§ 922 (g)(9) and

924(a)(2). Mr. White moved to suppress “any and all evidence seized from the residence
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and any statements made by [him] to the officers” during the incident. ROA, Vol. I at 17.

He argued that the officers had no basis for a warrantless entry into the home.

         The district court denied the motion to suppress, concluding that the officers’

warrantless entry into the home was justified because Ms. Webster consented to their

entry. Alternatively, the district court found exigent circumstances justified a warrantless

entry.

         Mr. White entered a conditional guilty plea to the third count, possession of a

firearm and ammunition after conviction of a misdemeanor crime of domestic violence,

reserving his right to appeal the denial of the motion to suppress. On July 27, 2012, Mr.

White filed a timely notice of appeal.

                                      II. DISCUSSION

         Mr. White challenges the district court’s denial of his motion to suppress. He

argues that the evidence seized from the home and the statements he made to officers

should be suppressed because the officers unlawfully entered the home without a warrant

in violation of his Fourth Amendment rights. The Government responds that the district

court correctly found that the officers’ warrantless entry was lawful because Ms. Webster

consented to their entry and because exigent circumstances justified entry. Because we

affirm on the third-party consent issue, we do not address whether exigent circumstances

justified the officers’ warrantless entry.

         The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
                                              -4-
Const. amend. IV. Officers’ entry into a home constitutes a search for Fourth

Amendment purposes. See Payton v. New York, 445 U.S. 573, 585-86 (1980). If officers

enter a home without a warrant, the search “is presumptively unreasonable, and evidence

obtained from such a search is inadmissible, subject only to a few carefully established

exceptions.” United States v. Harrison, 639 F.3d 1273, 1278 (10th Cir. 2011).

       “Voluntary consent to search is one such exception.” Id. “Consent may be

obtained from the individual whose property is searched, or in certain instances, from a

third party who possesses either actual authority or apparent authority to consent to the

search.” United States v. Cos, 498 F.3d 1115, 1124 (10th Cir. 2007); see also Illinois v.

Rodriguez, 497 U.S. 177, 181 (1990) (voluntary consent can be obtained “from a third

party who possesses common authority over the premises”). Thus, to establish third-

party consent justifying a warrantless entry, the Government must show that (1) the third

party had actual or apparent authority to consent to entry into the home, and (2) the

consent was freely and voluntarily given. United States v. Sanchez, 608 F.3d 685, 689

(10th Cir. 2010).

       Mr. White does not contest that Ms. Webster had actual authority to consent to the

officers’ entry into the home. He frequently refers to the residence as “her home” and

notes that the firearm was retrieved from “her bedroom.” Aplt. Br. at 5. On several

occasions, we have held that if family members or other cohabitants have access to the

residence, they have actual authority to consent to an entry or search of the home. See

United States v. Bass, 661 F.3d 1299, 1305 (10th Cir. 2011) (holding defendant’s
                                            -5-
girlfriend had authority to consent to search as a joint occupant), cert. denied, 132 S. Ct.

1816 (2012); Sanchez, 608 F.3d at 689 (holding defendant’s 15-year-old daughter had

actual authority to consent because she “lived full time in the house and had unrestricted

access to it”); United States v. Andrus, 483 F.3d 711, 720 (10th Cir. 2007) (holding that

officers had a reasonable belief that defendant’s father had authority to consent to the

search of his son’s room and computer because he owned the home and had access to the

room and computer at will). Accordingly, we see no basis to disturb the district court’s

conclusion that Ms. Webster had authority to consent to the officers’ entry into the home.

       Although Ms. Webster had authority to consent to the officers’ entry, the

Government must show that she gave voluntary consent. This inquiry “consists of two

parts: (1) the law enforcement officers must receive either express or implied consent,

and (2) the consent must be freely and voluntarily given.” Jones, 701 F.3d at 1317.

“Whether a [party] freely and voluntarily gave . . . consent to a search is a question of

fact and is determined from the totality of the circumstances.” Sanchez, 608 F.3d at 689

(quotations omitted).

       Mr. White insists that Ms. Webster never consented to the officers’ entry into the

home, arguing:

       [Ms. Webster] was met by police officers at the front door asking where the
       gun was located. She responded by taking the officer to her bedroom and
       pointing out the location of the gun. She did not invite the police officers
       into her home, they just came in. She did not ever give the Claremore
       Police Department any consent to search her home. They never asked
       permission to search.

                                             -6-
Aplt. Br. at 5 (emphasis added) (citations omitted). We reject this argument.

       Implied consent to enter a home is no less valid than explicit consent. Jones, 701

F.3d at 1320-21. Consent “must be clear, but it need not be verbal. Consent may instead

be granted through gestures or other indications of acquiescence, so long as they are

sufficiently comprehensible to a reasonable officer.” United States v. Guerrero, 472 F.3d

784, 789-90 (10th Cir. 2007).

       Mr. White acknowledges that Ms. Webster responded to the officer’s question,

made at the front door, by “taking [him] to her bedroom.” Aplt. Br. at 5; see also id. at

10 (“If it was an emergency situation why did Officer Cox follow Mrs. Webster into the

house?”). Sergeant Cox and Officer Thirion also testified that after they asked Ms.

Webster where Mr. White was, she said he was upstairs and led them into the house.

Under either version of events, Ms. Webster took the affirmative action of leading the

officers into the home. Such an affirmative act would lead a reasonable officer

responding to a reported suicide attempt in the home to believe that Ms. Webster

consented to entry into the home. See Jones, 701 F.3d at 1321 (finding implied consent

to enter a home where officers asked to search, the defendant turned and walked toward

the back door of the home, and the officers followed the defendant inside). Her act of

retrieving the firearm for the officers further indicates she consented to their entry.

       The only remaining issue is whether Ms. Webster’s consent was freely and

voluntarily given. Consent cannot be “‘coerced, by explicit or implicit means, by implied

threat or covert force.’” United States v. Kimoana, 383 F.3d 1215, 1225 (10th Cir. 2004)
                                              -7-
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)). “Consent is voluntary if

there is no indication of either force or intimidation.” Id. (quotations omitted). We

consider several factors to determine whether an individual has been coerced, including

“physical mistreatment, use of violence or threats of violence, promises or inducements,

deception or trickery.” United States v. Silva-Arzeta, 602 F.3d 1208, 1214 (10th Cir.

2010) (quotations omitted).

       Mr. White does not contest that Ms. Webster voluntarily led the officers into the

home. And, after reviewing the record, we conclude that Ms. Webster’s consent was not

“borne out of duress or coercion.” Jones, 701 F.3d at 1320. Although multiple officers

arrived at the home, which is a factor we consider in assessing voluntariness, see

Harrison, 639 F.3d at 1278, nothing in the record indicates their presence made Ms.

Webster consent because she “felt coerced, frightened or otherwise threatened,” United

States v. Iribe, 11 F.3d 1553, 1557 (10th Cir. 1993).

       In sum, Ms. Webster had actual authority to consent to the officers’ entry into the

home, she gave implied consent to their entry by leading them into the home, and her

consent was voluntary. Accordingly, we affirm the district court’s determination that her

voluntary consent justified the officers’ warrantless entry into the home.




                                            -8-
                                 III. CONCLUSION

      For the foregoing reasons, we affirm the district court’s denial of Mr. White’s

motion to suppress.

                                         ENTERED FOR THE COURT



                                         Scott M. Matheson, Jr.
                                         Circuit Judge




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