                                                                                 F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                 APR 14 2005
                                        TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.
                                                             No. 03-4297
                                                      (D.C. No. 01:02-CR-98-TC)
 ADOLFO MELENDREZ-MORENO,
                                                              (D. Utah)
 also known as Carlos Lauro,

                Defendant - Appellant.




                               ORDER AND JUDGMENT*


Before SEYMOUR, PORFILIO, and EBEL, Circuit Judges.



       A jury convicted Adolfo Melendrez-Moreno (Defendant) of possession of a

firearm by an illegal alien, 18 U.S.C. § 922(g)(5), and possession of methamphetamine

with intent to distribute, 21 U.S.C. § 841(a)(1), resulting in a 151-month sentence

followed by 60 months of supervised release. In this appeal, Mr. Melendrez-Moreno

challenges the district court’s denial of his motion to suppress a firearm and


       *
         Submitted on briefs at the request of the parties. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
methamphetamine seized by officers during a search of his home. We conclude

Defendant’s contentions that he did not verbally consent to the search and that the search

exceeded the scope of the written consent form are perfunctory and without merit.

Therefore, we affirm.

       Ogden City, Utah police officers, Dale Weese and Juan Trujillo, and Utah parole

officer, Blake Woodring, following up on tips about drug activity, approached a structure

at 463 32nd Street in Ogden. The building was subdivided into two apartments, one of

which was occupied by Mr. Melendrez-Moreno. Responding to the officers’ knock,

Mr. Melendrez-Moreno opened the door. In English, Officer Weese told him that he and

the other officers were investigating complaints of suspected drug activity in the area.

Officer Trujillo, who is fluent in Spanish, thinking Defendant would be “more

comfortable” speaking in Spanish, repeated in that language that the officers were

investigating a tip about drug activity at the house and asked if he lived there. Defendant

answered, yes, and identified himself as “Carlos Lauro Angulo.” When asked about the

drug activity, Defendant stated he did not use or sell drugs.

       Before crossing the threshold, Officer Trujillo asked Defendant, again in Spanish,

if the three officers could enter the house. Defendant granted permission, and the officers

entered. Officer Trujillo then asked Defendant if the officers could “search for drugs and

drug paraphernalia.” Again, Defendant responded, “yes.” Officer Trujillo gave

Mr. Melendrez-Moreno a “standard” written consent form in Spanish. The form


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permitted officers to enter the residence and search for “personal items.” Although, the

form did not use the word buscar, Spanish for search, Officer Trujillo used that verb

when he explained the purpose of the form. Mr. Melendrez-Moreno said he understood

what he was told and signed it.

       During the search, which included the attic above the kitchen and behind an access

door for a water heater, officers found a methamphetamine pipe, prescription pills, a box

of .45 caliber ammunition, a semiautomatic pistol,1 a crystalline substance, and two

“balls” of methamphetamine. The officers then arrested Mr. Melendrez-Moreno. Later

that evening, Mr. Melendrez-Moreno told another officer his true name and stated he

entered the country through Nogales.

       In denying the motion to suppress, the district court rejected defense counsel’s

effort to infest the officers’ testimony with contradiction and obfuscation and credited the

government with presenting “clear and positive testimony that Mr. Melendrez-Moreno

specifically and unequivocally consented to the search of his apartment, and that he did so

freely and intelligently.” The court stated it found Officer Trujillo was credible when he

testified about coming to the apartment, explaining the officers’ presence to

Mr. Melendrez-Moreno, asking for permission to enter, and handling the consent form

and search. The court also noted the testimony that no officer displayed a weapon or


       1
         Defendant later told Trujillo the gun was for his protection, adding he used and
sold drugs.


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made any threats or promises at any time during this encounter. Further, the court noted

Defendant had the physical and mental capacity to consent to the search and

communicated coherently both in English and Spanish.

       The court found these facts fulfilled the established test for determining whether

consent is voluntary, the predicate for a valid search of a home. Further, it recognized the

question of voluntariness is one of fact, channeled to satisfy a two-part test adopted by

this court. Under that test, the government must: 1) “proffer ‘clear and positive

testimony that consent was unequivocal and specific and freely and intelligently given,’”

and 2) “prove that this consent was given without implied or express duress or coercion.”

United States v. McRae, 81 F.3d 1528, 1536 (10th Cir. 1996). More than mere

acquiescence must be shown to meet this test. Bumper v. North Carolina, 391 U.S. 543,

548 (1968). Applying these tests, the district court concluded the totality of the

circumstances the government set out established Mr. Melendrez-Moreno voluntarily

consented to the initial entry and subsequent search.

       Relying on United States v. Pena, 143 F.3d 1363 (10th Cir. 1998), the district court

quickly disposed of Defendant’s second contention the scope of the search exceeded his

consent. The court began its analysis by reciting the standard for measuring the scope of

an individual’s consent to search is that of “objective reasonableness, asking what the

typical reasonable person would have understood to be the scope of his or her consent

under the circumstances.” Id. at 1368 (citation omitted). The object of the search defines


                                            -4-
the scope of consent generally. Id. Further, “[c]onsent to an officer’s request to search

for drugs would reasonably include areas in which one would be expected to hide drugs.”

Id. From this authority, the court found that Officer Trujillo’s supplemental use of the

word buscar clearly explained the form, stating “the court is convinced Mr. Melendrez-

Moreno well knew he was consenting to a search of his apartment for drugs.”

       The court also rejected Defendant’s contention that, unlike Pena, he did not have

an opportunity to object to the scope of the search. The court noted, however, officers

asked Mr. Melendrez-Moreno if he used or had any drugs and then immediately asked to

search. The similar phrasing of the questions, the court concluded, supported its finding

Defendant understood what he consented to and where the officers would necessarily

look. Thus, Mr. Melendrez-Moreno’s consent to the search for drugs in his apartment

included the attic above the kitchen and the wall heater.2

       Now, based on selected excerpts of the officers’ testimony, Mr. Melendrez-

Moreno asks us to make credibility determinations about the voluntariness of his consent.

In his view, the search began when the officers entered his apartment without his


       2
          Similarly phrased requests, as noted in Pena, for consent to search have been
held to be requests for a full search of the premises. See United States v. Anderson, 114
F.3d 1059, 1065 (10th Cir. 1997) (holding that by giving officer consent to “scout
around” his vehicle, defendant authorized full search of it, including underneath and
around it); United States v. McRae, 81 F.3d 1528, 1537-38 (10th Cir. 1996) ( defendant’s
consent to officer’s request to “look in” his car gave officer authorization to search the
car, including lifting up carpeting in the trunk of the car); United States v. Espinosa, 782
F.2d 888, 892 (10th Cir. 1986) (request to “look through” defendant’s car authorized a
thorough search).

                                            -5-
understanding what they wanted. Defendant argues because of claimed major

contradictions and omissions in Officer Trujillo’s testimony, the district court should have

disregarded it as “incredible.” Thus, he argues, “the lower court’s finding that the

testimony of Officer Trujillo was credible on the issue of verbal consent was clearly

erroneous.” However, because only the testimony on verbal consent was inconsistent

“this Court should find that no verbal consent was secured prior to the written consent.”

       Further, based on this same “inconsistent testimony,” he contends the two officers’

walking around the apartment before the consent form was signed was unlawful.

Notwithstanding his prior consent to their entry into the home, Defendant argues the

officers were flagrantly wandering around. He urges they “could have waited at the table

until the written consent form was executed.” Defendant asks us to find that there was an

unlawful search prior to the signing of the written consent.

       Defendant concludes with the contention that the scope of the search exceeded the

consent given because he only agreed to allow the officers to “register” his personal

items. Given this express limitation of the scope, he maintains the court should find the

district court clearly erred in concluding the search did not exceed its scope.

       Defendant forgets appellate courts do not make findings of fact; indeed, the

“[e]valuation of the credibility of witnesses, the weight to be given the evidence and

inferences to be drawn from the evidence are for the district court [only].” United States

v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996). Moreover, as pointed out by the


                                            -6-
government, it is irrelevant whether consent was given before the officers crossed the

threshold because it is uncontradicted that Defendant gave oral consent to search before

the officers began inspection of his house.

AFFIRMED.


                                          ENTERED FOR THE COURT



                                          John C. Porfilio
                                          Senior Circuit Judge




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