                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 19 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-30018

              Plaintiff - Appellee,              D.C. No. 4:12-cr-00062-BMM-1

 v.
                                                 MEMORANDUM*
UDELL CLY,

              Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Brian M. Morris, District Judge, Presiding

                             Submitted April 8, 2016**
                               Seattle, Washington

Before: HAWKINS, RAWLINSON, and CALLAHAN, Circuit Judges.

      Udell Cly pleaded guilty to Count 1 of an indictment charging him with

sexual abuse of a minor, a violation of 18 U.S.C. §§ 1153(a), 2243(a). On appeal,

he challenges the denial of his motion to suppress evidence gathered during a


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
warrantless search of his mother’s home. We have jurisdiction under 28 U.S.C. §

1291 and affirm.

      “We review de novo motions to suppress, and any factual findings made at

the suppression hearing for clear error.” United States v. Basher, 629 F.3d 1161,

1165 (9th Cir. 2011) (quoting United States v. Ruckes, 586 F.3d 713, 716 (9th Cir.

2009)). The district court denied suppression based on two well-established

exceptions to the warrant requirement: voluntary consent and exigent

circumstances.

      1.     “In order to establish the validity of a consent to search, the

government bears the heavy burden of demonstrating that the consent was freely

and voluntarily given.” United States v. Chan-Jimenez, 125 F.3d 1324, 1327 (9th

Cir. 1997) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)). Because

the district court did not make a specific factual finding as to whether consent was

given, we review de novo. Basher, 629 F.3d at 1165.

      We have stated that “[c]onsent can be inferred from nonverbal actions, but it

must be ‘unequivocal and specific’ and ‘freely and intelligently given.’” Basher,

629 F.3d at 1167 (quoting Chan-Jimenez, 125 F.3d at 1328). The hearing

testimony demonstrates that the officers received nonverbal consent from Annette

Stanley, a resident of the home and the defendant’s mother, to search the


                                           2
basement.1 In response to the officers’ explanation that there were several missing

young girls hiding in her basement and consuming alcohol with two adult males,

including her son, Ms. Stanley “hollered” for the defendant, who emerged from the

basement. Ms. Stanley then led the officers down the basement stairs where the

missing girls were located. These circumstances were sufficiently unequivocal and

specific to constitute a valid consent.

      The second prong of the inquiry required the district court to determine

whether consent was voluntarily given. Whether a person’s consent was

voluntarily given is determined from the totality of the circumstances. Chan-

Jimenez, 125 F.3d at 1327. Ms. Stanley was not in custody at the time of the

request to search. Because she was not in custody, Miranda warnings,2 which were

not given, were unnecessary. In addition, there is no testimony that the officers

had their guns drawn, nor is there testimony establishing that the officers

threatened Ms. Stanley that they would obtain a search warrant if she refused to

consent. Considering the totality of the circumstances, Ms. Stanley’s consent met

the standard we have set for voluntariness. Basher, 629 F.3d at 1168.




      1
          There is no dispute that Ms. Stanley had the authority to give consent.
      2
          Miranda v. Arizona, 384 U.S. 436 (1966).

                                            3
      2.     The district court properly determined that exigent circumstances

justified the officers’ warrantless search of the home. Whether exigent

circumstances existed is a mixed question of law and fact that is reviewed de novo.

United States v. Reilly, 224 F.3d 986, 991 (9th Cir. 2000). “One exigency

obviating the requirement of a warrant is the need to assist persons who are

seriously injured or threatened with such injury.” Brigham City v. Stuart, 547 U.S.

398, 403 (2006). “The exigencies must be viewed from the totality of

circumstances known to the officers at the time of the warrantless intrusion.”

United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985). When the officers

arrived at the scene, they were told that the missing girls they were looking for,

between ages 12 and 14, were in Ms. Stanley’s basement. As the district court

reasoned, the officers could reasonably have believed the combination of multiple

young girls, adult males, and alcohol posed a serious danger of sexual assault or

other injury to those teenage girls. Thus, their warrantless entry was reasonable,

and the district court’s refusal to suppress the evidence found as a result of their

search was proper.

      AFFIRMED.




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