                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         AUG 26 1998
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 97-4149
 v.
                                                   (D.C. No. 96-CR-37-C)
                                                      (District of Utah)
 NATHAN A. CLASEN,

          Defendant - Appellant.




                             ORDER AND JUDGMENT         *




Before LUCERO , McKAY and MURPHY , Circuit Judges.



      Having conditionally pled guilty to possession of a fully automatic machine

gun in violation of 18 U.S.C. § 922(o), Nathan Clasen appeals the district court’s

denial of his motion to suppress the firearm, contending that it was obtained from

his car after an illegal search. We exercise jurisdiction pursuant to 28 U.S.C. §

1291 and affirm.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                           I

       The following is based on testimony elicited at the suppression hearing. On

October 25, 1995, off-duty deputy Roger Young of the Millard County Sheriff’s

office received information that a male named “Nathan” had been seen firing an

automatic weapon in the gravel pits north of Delta, Utah. While on duty the

following day, Deputy Young spoke with the witness, who gave him the license

plate number of the blue Jeep Cherokee that Nathan had been driving. The

vehicle was registered to Lisa Williams of Delta.

       Young went to Williams’ home to inquire about the identity of the driver.

Williams produced a sales contract demonstrating that she sold the vehicle about

six weeks earlier to Nathan Clasen and his grandfather. While standing on

Williams’ porch, Young and Williams saw the blue jeep drive by. Young

followed the jeep into the parking lot of an apartment complex a block away,

where he approached it. According to Young, he “stopped the vehicle to inquire

regarding the improper registration of the vehicle, why the plates had not been

transferred over to that individual, where they had already bought the vehicle.”

Hearing Tr. at 6. Young testified that the registration offense was the primary

reason for the stop and that the   weapon offense was a secondary reason.

       Young asked the driver, Tiffany Edwards, whether she was the owner of the

jeep. She indicated that her boyfriend Nathan Clasen, who was at her nearby


                                          -2-
apartment, owned the jeep. Young did not ask Edwards for her driver’s license

nor did he cite her for driving an improperly registered vehicle, but requested that

she ask Clasen to come outside to speak with him. When Clasen emerged, Young

informed him that the vehicle was not properly registered. Clasen responded that

he and his grandfather had not yet had time to get the vehicle registered and had

not received the transfer of title.

       After raising the improper registration issue, Young questioned Clasen

regarding whether he had fired an automatic weapon in the gravel pits two days

prior. Clasen responded that he had been to the gravel pits with a .22 caliber

rifle and a shotgun, but not an automatic rifle. He also stated that he did not

have an AK-47 in the vehicle. Clasen refused Young’s request for permission to

search the vehicle. Young then advised Clasen that “the vehicle would be subject

to state impound due to the improper registration and that during the impounding

of it we would do an inventory of the vehicle. In such case if the weapon was in

the vehicle, it would be located.”    Id. at 10. Young returned to his patrol car to

call the city attorney in order to clarify vehicle registration requirements, and

Clasen returned to the apartment.

       After some reflection, Clasen changed his mind about the search, deciding

that he could not afford to lose either his jeep or the other property inside it. He

came back outside and informed Sergeant Stewart, who had joined Young, that


                                            -3-
the weapon was in the vehicle. Clasen opened the vehicle and pointed out a

black nylon gun case in the rear of the car as well as ammunition and clips.

Young took custody of the weapon and then        asked Clasen to accompany him to

the sheriff’s office to answer questions regarding its origin.

      At the sheriff’s office, Young notified Clasen that he was not under arrest

but that for his protection he would be advised of his Miranda rights. Clasen read

his rights and signed a waiver form. He then made a statement indicating that he

had received the weapon from a friend, had fired the weapon, knew that it was

automatic, and knew that it was illegal to possess such a weapon.

                                           II

      Clasen contends on appeal that the district court improperly denied his

motion to suppress the weapon. He asserts that he did not voluntarily consent to

the search of the jeep and therefore the weapon was retrieved as the result of an

illegal, warrantless search.

      In reviewing a district court’s denial of a motion to suppress, we apply the

clearly erroneous standard of review to the district court’s findings of fact and

view the evidence in the light most favorable to the government.    1
                                                                        See United




      1
             The district court adopted the Magistrate’s Report and
Recommendation in its entirety, and we will therefore refer to the magistrate’s
findings as those of the district court.

                                           -4-
States v. Sanchez , 89 F.3d 715, 717 (10th Cir. 1996). The overall reasonableness

of a search is a question of law that we review de novo.      Id.

       An officer may conduct a warrantless search consistent with the Fourth

Amendment if the defendant voluntarily consents to the search.         See Schneckloth

v. Bustamonte , 412 U.S. 218, 219 (1973). The voluntariness of consent is a

question of fact to be determined from the totality of the circumstances.        See id. at

248-49 ; United States v. Hernandez , 93 F.3d 1493, 1500 (10th Cir. 1996). This

inquiry requires consideration of, among other things, any “physical mistreatment,

use of violence, threats, threats of violence, promises or inducements, deception or

trickery, and the physical and mental condition and capacity of the defendant.”

United States v. McCurdy , 40 F.3d 1111, 1119 (10th Cir. 1994).       2
                                                                            When the

government relies on a defendant’s consent to validate a search, the government

bears the burden of proving that the defendant’s consent was freely and voluntarily

given. See United States v. McRae , 81 F.3d 1528, 1536 (10th Cir. 1996). In order

to establish the validity of consent, the government must (1) “proffer clear and

positive testimony that consent was unequivocal and specific and freely and




       2
              Because appellant was not under arrest at the time of the search, and
the evidence demonstrates he was free to leave at his will, these facts do not
require that the consent satisfy the higher standard of voluntariness necessary to
validate a consent to search given after an unlawful detention.  See Hernandez , 93
F.3d at 1500.

                                             -5-
intelligently given” and (2) “prove that this consent was given without implied or

express duress or coercion.”   Sanchez , 89 F.3d at 719.

      Appellant argues that his consent to search was involuntary because it was in

response to Deputy Young’s assertion of legal authority to impound and inventory

search Clasen’s vehicle.   See Appellant’s Br. at 15. According to Clasen, an

impound and search would have been unreasonable under the circumstances, and

because Clasen’s consent was prompted by an erroneous statement of law, it was

involuntary.

      Upon careful review of the record, we uphold the district court’s conclusion

that Clasen voluntarily consented to the search. Contrary to the appellant’s

assertion, this case is not analogous to a situation where an officer has inaccurately

asserted lawful authority to search and thereby coerced consent.    See, e.g. , Bumper

v. North Carolina , 391 U.S. 543, 548-49 (1968) (holding consent involuntary

because officers obtained it after erroneously representing that they had a valid

warrant).

      In order to determine the soundness of Young’s assertion that the vehicle

would be subject to impoundment and inventory, we examine whether such actions

would be authorized under Utah law.      See United States v. Rios , 88 F.3d 867, 870

(10th Cir. 1996). We conclude that on the facts before us, Young spoke accurately




                                            -6-
when he indicated that he had authority to impound and inventory search the

vehicle.

      Under Utah law, “any peace officer, without a warrant, may seize and take

possession of any vehicle . . . that is being operated on a highway: . . . (ii) having

never been properly registered by the current owner. . . .” U.C.A. § 41-1a-

1101(f)(ii) (1997 Supp.). It is undisputed that Clasen’s vehicle was operated on a

highway even though it was improperly registered. We agree with the district

court that it is immaterial that the vehicle came to a stop in a private parking lot

immediately before the officer broached the possibility of impoundment. This is

not a situation where an officer has ventured onto private property searching for

improperly registered vehicles that have not been driven on public roads. Here, the

officer had witnessed what he reasonably suspected to be an improperly registered

vehicle being driven on a public road, and the officer followed it a block into a

private parking lot. The fact that the officer did not confront the driver until the

car was parked in the lot does not render the impoundment statute inapplicable.

The district court did not err when it concluded that under these circumstances

Deputy Young correctly stated that the vehicle was subject to impoundment.

      Deputy Young also correctly stated that, upon impoundment, an inventory

search would be conducted. A warrantless inventory search of a vehicle pursuant

to lawful impoundment generally will not violate the Fourth Amendment.         See


                                           -7-
South Dakota v. Opperman , 428 U.S. 364, 369-71 (1976). It is a common practice

for police authorities to inventory search the property in an impounded vehicle in

order to protect the police from danger and prevent allegations of police theft.       See

id. at 369. Such procedures are consistent with Utah law.        See State v. Strickling ,

844 P.2d 979, 987 (Utah Ct. App. 1993) (noting that inventory search is justified if

conducted pursuant to lawful impoundment and consistent with regularized

procedures); see also Opperman , 428 U.S. at 372 (noting that inventories

conducted pursuant to standard police procedures are reasonable). That Deputy

Young may have had additional investigative interest in the contents of the vehicle

does not in itself render a permissible inventory search improper. We agree with

the district court that appellant’s contention that an inventory of the vehicle would

have been mere pretext for an investigative search is unduly speculative.

       Because we agree with the district court that the officer did have legitimate

authority under Utah law to impound the car and had lawful authority to conduct

an inventory search pursuant to the impoundment, Deputy Young’s statement to

Clasen that the vehicle was subject to impoundment and inventory was not

deceitful or impermissibly coercive.

       Examining the totality of the circumstances, we also agree with the district

court’s conclusion that the appellant freely and voluntarily consented to the search.

Deputy Young correctly stated that he had authority to impound and inventory


                                             -8-
search the vehicle. Clasen was not under arrest or otherwise detained at the time

he gave the consent. He was aware of his right to refuse to the officer’s request to

search and, in fact, initially exercised this right. The vehicle was at no time

impounded. Clasen returned to his residence to consider the matter after he was

informed that the vehicle could be impounded. He then voluntarily left his

residence to resume conversation with the two officers. Of his own volition,

Clasen obtained the keys to the vehicle, opened it, and gave the weapon to Officer

Stewart and produced ammunition clips that had not been requested.       See

Magistrate’s Report & Recommendation at 20. There is no evidence that the

officers’ questioning was in any way “accusatory, persistent, and intrusive,”

rendering an otherwise voluntary encounter coercive.     See Hernandez , 93 F.3d at

1499. The district court correctly concluded that Clasen consented to the search of

his jeep, and, in light of his valid consent, the search was not constitutionally

infirm. 3




       3
             Because we conclude that Clasen voluntarily consented to the search,
we need not address whether the officer had probable cause to search the vehicle
under the doctrine of United States v. Carroll , 267 U.S. 132 (1925).

                                           -9-
                                        III

     For the reasons set forth above, the district court’s denial of the motion to

suppress is AFFIRMED.

                                              ENTERED FOR THE COURT



                                              Carlos F. Lucero
                                              Circuit Judge




                                       -10-
