                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 01 2015

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



                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 13-10586

              Plaintiff - Appellee,              D.C. No. CR 12-01471-TUC-FRZ

  v.
                                                 MEMORANDUM*
CARLOS POOM-MEDINA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                 Frank R. Zapata, Senior District Judge, Presiding

                       Argued and Submitted April 14, 2015
                            San Francisco, California

Before: KOZINSKI and GRABER, Circuit Judges, and PONSOR,** Senior
District Judge.

       Defendant challenges his 2013 convictions for possession of a firearm as an

alien, in violation of 18 U.S.C. §§ 922(g)(5)(a) & 924(a)(2), and illegal reentry

after deportation, in violation of 8 U.S.C. § 1326(a). Defendant contends that the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Michael A. Ponsor, Senior United States District
Judge for the District of Massachusetts, sitting by designation.
district court erred in denying his motion to suppress certain physical evidence (a

firearm) and statements made by him to officers. We affirm.

      We review de novo the district court’s denial of a suppression motion.

United States v. Jones, 286 F.3d 1146, 1150 (9th Cir. 2002). We review the

district court’s underlying factual finding that Defendant voluntarily consented to

the entry and search under a clearly erroneous standard. Id.

      1.     The district court properly denied Defendant’s motion to suppress.

“[A] search conducted pursuant to a valid consent is constitutionally permissible.”

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). The district court’s finding

that Defendant consented to the agents’ request to enter his home and search for

illegal aliens did not constitute clear error. The district court correctly applied the

five guidepost factors set forth in United States v. Patayan Soriano. 361 F.3d 494,

502 (9th Cir. 2004) (considering (1) whether defendant was in custody; (2) whether

the arresting officers had their guns drawn; (3) whether Miranda warnings were

given; (4) whether the defendant was notified that he had a right not to consent;

and (5) whether the defendant had been told a search warrant could be obtained).

The record amply demonstrated that the agents, upon confronting Defendant after

he opened the door, identified themselves, never drew their weapons or threatened

Defendant, observed Defendant to be calm, and obtained his voluntary consent to


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enter and search the premises. Unlike the defendant in Florida v. Jardines, 133 S.

Ct. 1409 (2013), here Defendant was at home and affirmatively consented to a

search before the officers began looking for any evidence. Given those facts, the

time of day and location of the door are insufficient to support a conclusion that the

district court’s finding of voluntariness was clearly erroneous. Under the totality

of the circumstances, Defendant freely and voluntarily gave his consent.

Schneckloth, 412 U.S. at 222.

      2.    If a defendant does not limit the scope of his consent to a search, the

limits of the search extend to what is objectively reasonable or what “the typical

reasonable person [would] have understood by the exchange between the officer

and the suspect.” Florida v. Jimeno, 500 U.S. 248, 251 (1991). Defendant argues

that even if he did consent to a search, the fruits of that search nonetheless should

have been suppressed because the agents exceeded the scope of his consent when

they looked in a closet and discovered a firearm. The record is clear that

Defendant never limited the scope of his consent to a specific area of the house.

Agents did not breach any constitutional boundary by investigating the closet,

because the closet was large enough to hide an illegal alien, and a reasonable

person would have understood the request to search the house to include that area.

Thus, the search of the closet was constitutionally permissible. The seizure of the


                                           3
firearm was also permissible because a firearm, within a dwelling that officers

reasonably suspect is a stash house, has an “incriminating character [that] is

immediately apparent.” Minnesota v. Dickerson, 508 U.S. 366, 375 (1993); see

also United States v. Stafford, 416 F.3d 1068, 1076-77 (9th Cir. 2005).

      3.     The district court properly denied Defendant’s motion to suppress his

statements on Miranda grounds. An officer’s obligation to give a suspect

Miranda warnings before interrogation extends only to those instances where the

individual is “in custody.” Oregon v. Mathiason, 429 U.S. 492, 495(1977) (per

curiam). To determine whether an individual is in custody, a court must examine

all of the objective circumstances surrounding the interaction. Berkemer v.

McCarty, 468 U.S. 420, 442 (1984). In this case, one agent, for security purposes,

remained near Defendant in an area slightly apart from where the search occurred,

while other officers performed the brief search. Defendant was not in custody, and

it was not error to admit statements made by Defendant during this time. Only

after Defendant corrected his previous lie and admitted he was not a U.S. citizen

did the agents arrest him and place him in custody. Here, Miranda warnings were

not required until he was arrested. Mathiason, 429 U.S. at 495.

      AFFIRMED.




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