                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 17, 2008
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 07-3217
 v.                                             (D.C. No.06-CR-20175-JWL)
                                                    (District of Kansas)
 GUILLERMO PEÑA-BAEZ,

          Defendant - Appellant.



                              ORDER AND JUDGMENT *


Before LUCERO, HOLLOWAY, and GORSUCH, Circuit Judges.


                                  I. INTRODUCTION

      On December 7, 2006, Guillermo Peña-Baez was charged in a single count

indictment, filed that day, with possession with intent to distribute more than fifty

grams of methamphetamine and aiding and abetting in that offense in violation of

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Mr. Peña-Baez entered a conditional

guilty plea to the sole indictment count and reserved the right to appeal the denial

of his motion to suppress evidence. A Pre-Sentence Report (“PSR”) was prepared


      *
        This order and judgment is not binding precedent, except under the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.
and Mr. Peña-Baez received a prison sentence of 168 months, 60 months of

supervised release, and a $100.00 special assessment. He now appeals his

conviction. We have appellate jurisdiction under 28 U.S.C. § 1291.

                             II. BACKGROUND

      On October 14, 2006, Officer Greg Richardson of the Olathe, Kansas Police

Department received a call from dispatch about an anonymous tip that

methamphetamine was present in a bedroom closet of the residence located at

1105 East Loula in Olathe, Kansas. The tip indicated that the drugs belonged to

Hugo Chavez, but that he did not live there anymore, and that he might be on his

way to the house with more methamphetamine that night.

      The Olathe Dispatcher also informed Officer Richardson that on October 8,

2006, the Merriam Police Department stopped a tan Chrysler driven by Mr.

Chavez with Mr. Peña-Baez in the passenger seat. Merriam Police officers

obtained consent from Mr. Chavez to search the car. While the officers did not

find any drugs, the officers did discover an empty hidden compartment, missing

light covers, and loose door panels which Officer Lewis believed to show the

vehicle was being used to “transport possibly narcotics.” R. II at 11. The

officers spoke with Mr. Peña-Baez in English while searching the vehicle and he

indicated no difficulty understanding them and responding. Id. at 8. Officer

Lewis admitted he did not do a report of the incident, which would have been

normal. Id. at 12.

                                       -2-
      After the Olathe Dispatcher told Officer Richardson about the stop, Officer

Richardson contacted the Merriam Police and spoke with Officer Lewis, who

conducted the stop of Mr. Chavez and confirmed the information. Officer

Richardson then proceeded to 1105 East Loula and looked for the vehicles

identified by the Olathe Dispatch. He continued to drive by the residence

periodically from 7:30 pm until approximately 11:30 when Officer Richardson

saw a light on in the home that had not been on before. Detective Maxfield, who

speaks some Spanish, joined Officer Richardson at the residence.

      Officer Richardson knocked on the door which was answered by Mr. Peña-

Baez. When Mr. Peña-Baez opened the door, Officer Maxfield walked up

towards the front door. Officer Maxfield spoke to Mr. Peña-Baez in Spanish

initially but began speaking English when Mr. Peña-Baez responded to his

questions in English. Officer Richardson asked if the officers could go inside but

Mr. Peña-Baez stated that it was not his house and that it belonged to “Niño.”

Officer Richardson asked what kind of car Niño drove and where he was. Mr.

Peña-Baez stated that Niño was at a bar and that he drove a Chrysler.

      Next, Officer Richardson asked if there were drugs in the house and Mr.

Peña-Baez stated that there were no drugs in the house that belonged to him. Mr.

Peña-Baez then stated that Niño would not be home soon but offered to contact

him via his cell phone. After dialing Niño’s number, Mr. Peña-Baez handed the

phone to Officer Maxfield. Officer Maxfield spoke with Niño in English and


                                        -3-
Niño stated that he did not live there, had no belongings at the residence, and that

Mr. Peña-Baez lived there. Officer Maxfield relayed this information to Mr.

Peña-Baez and again asked if they could look inside. Mr. Peña-Baez continued to

state that he did not have permission to let them inside the house.

       Officer Richardson then asked Mr. Peña-Baez if it would be okay with him

for the officers to look inside if Niño gave them permission. Mr. Peña-Baez

agreed to that proposal and called Niño again. Niño stated that he was the

leaseholder of the residence and provided Officer Maxfield with the landlord’s

phone number. Niño again asserted that nothing in the residence belonged to him

and said that the officers could look through the house. The 1105 East Loula

residence was a two story triplex apartment building with a basement, first floor,

and a second floor. Mr. Peña-Baez stated that when he stayed there, he stayed on

the first floor.

       The officers entered the house and looked around, but at no time did Mr.

Peña-Baez object to the search or attempt to limit the officers’ search of the

home. Officer Richardson noticed a gym bag on the first floor behind a staircase.

The zipper was not closed all the way, revealing an opening in the bag. Through

the opening, Officer Richardson saw several clear plastic bags with white crystals

which he believed to be methamphetamine. At that time, the officers arrested Mr.

Peña-Baez.

       Inside the gym bag, the officers found nine bags of methamphetamine and


                                         -4-
two containers of a cutting agent. In the kitchen, the officers found a money

order from Hugo Chavez, a large bag containing two pounds of

methamphetamine, three electronic scales, and several items with

methamphetamine residue. In the bedroom that Mr. Peña-Baez indicated that he

used, the officers found three bags of methamphetamine, a cutting agent, and

$24,400 in cash.

      On December 7, 2006, a federal grand jury for the District of Kansas

returned the one count indictment charging Mr. Peña-Baez with intent to

distribute methamphetamine and aiding and abetting in violation of 18 U.S.C. §

841(a)(1) and 18 U.S.C. § 2. Mr. Peña-Baez filed a motion to suppress on March

6, 2007. Defendant's motion argued for suppression of the evidence on two

primary bases (1) Mr. Peña-Baez did not provide voluntary consent to the search

and (2) Niño had neither actual or apparent authority to consent to the search. A

suppression hearing was held on April 4, 2007.

      The issue presented on appeal, whether or not Mr. Peña-Baez had either

actual or apparent authority to consent to the search, was not argued in the motion

to suppress. At the suppression hearing, three witnesses testified, Officer Lewis

of Merriam Police Department, Officer Richardson of the Olathe Police

Department, and Officer Maxfield of the Olathe Police Department. During the

course of the suppression hearing, questioning of the witnesses and arguments

made by counsel focused on whether or not Mr. Peña-Baez gave voluntary


                                         -5-
consent to search the residence. In fact, during closing statements, Mr. Peña-

Baez's counsel stated that “this isn't an issue of whether Mr. Peña-Baez could give

consent. He could. He was an overnight guest at the very least, and he could

give consent. But the question is, did he?” R. II at 73.

      On April 9, 2007, the district court denied the Defendant-Appellant's

motion to suppress. The judge made findings stating that “counsel for defendant

conceded that Mr. Peña-Baez could give consent to the search. The court

agrees....In light of his access to and use of the residence, he had actual authority

to consent to the search.” April 9, 2007 Memorandum and Order at p. 7. The

court also found that “the evidence establishes that Mr. Peña-Baez’s consent was

unequivocal, specific, and freely given without duress or coercion.” Id. at 8.

Finally, the court specifically found that Mr. Peña-Baez had a working knowledge

of English which was sufficient for the consent to be voluntary. Id. at 9-10.

      On May 8, 2007, Mr. Peña-Baez entered a conditional guilty plea to the one

count but reserving for appeal the denial of his motion to suppress the evidence.

The district court sentenced Mr. Peña-Baez on July 31, 2007 to a 168 month term

of imprisonment, a 60 month term of supervised release, and a $100 special

assessment.

                                III. DISCUSSION

      On appeal, Mr. Peña-Baez challenges the district court’s denial of his

motion to suppress the evidence recovered during the search of the 1105 East

                                          -6-
Loula residence. Mr. Peña-Baez now argues that he did not have the authority to

consent to the search, not whether he did in fact provide voluntary consent as was

argued below. The government maintains that the argument made on appeal has

been waived and was not properly raised below.

A. Standard of Review

      Under United States v. Turner, 483 F.3d 694, 698 (10th Cir. 2003), we

consider the “totality of the circumstances and view[] the evidence in a light most

favorable to the government, accepting the district court's factual findings unless

clearly erroneous.” However, we exercise de novo review over the ultimate

question of the reasonableness of the search. Turner, 483 F.3d at 698.

B. Issue Raised and Ruled On and Waiver

      The government contends that the argument now made on appeal was not

raised below. Also, the government argues that the Defendant-Appellant's

counsel conceded the argument made on appeal during the suppression hearing.

      First, we examine Mr. Peña-Baez's motion to suppress filed in the district

court. The motion focuses on whether Mr. Peña-Baez voluntarily consented to

the search of the residence. Indeed, in the Defendant-Appellant's motion to

suppress, the primary heading under “Argument and Authority” was “The

Government Did Not Obtain Voluntary Consent Before Searching The

Apartment.” R. I at 11, p. 2. To be sure, the substance of the motion does not

address Mr. Peña-Baez’s authority to consent to the search. The motion does


                                         -7-
however argue that Niño did not have either actual or apparent authority to

provide voluntary consent for the officers to search the residence. Id. at 3-5.

Defense counsel's motion to suppress focuses on the factual inquiry as to whether

Mr. Peña-Baez voluntarily consented to the search, but it does not argue that Mr.

Peña-Baez lacked the authority to give such consent. We therefore agree with the

government that the argument now on appeal was not set forth in the motion to

suppress.

      At the suppression hearing, counsel focused questions on whether Mr.

Peña-Baez voluntarily consented to the search, not whether he had the authority

to allow the officers to search the residence. Indeed, during closing argument,

Defendant-Appellant's counsel stated that “this isn't an issue of whether Mr. Peña-

Baez could give consent. He could. He was an overnight guest at the very least,

and he could give consent. But the question is, did he?” R. II at 73. Defense

counsel explicitly states that Mr. Peña-Baez had the authority to give consent and

provided a basis from which that authority stemmed – that he was an overnight

guest. See United States v. Rith, 164 F.3d 1323, 1329 (10th Cir. 1999) (“a third

party has authority to consent to a search of property if that third party has either

(1) mutual use of the property by virtue of joint access, or (2) control for most

purposes over it.”). The district court noted this concession by Defense counsel

in the court's written “Memorandum and Order” of April 9, 2007. R. I at 15, p. 7.

The district court ultimately found that Mr. Peña-Baez had the authority to


                                          -8-
consent to the search. Id. As noted, the district court found that Mr. Peña-Baez

had the authority to consent and did in fact voluntarily consent for the officers to

search the residence. Id.

      This case is similar to United States v. Carrasco-Salazar, 494 F.3d 1270

(10th Cir. 2007), in one important respect. In Carrasco-Salazar, the defendant

attempted to pursue an argument made below but abandoned at the conclusion of

the sentencing court proceedings. Carrasco-Salazar, 494 F.3d at 1272. We

found that in Carrasco-Salazar, the defendant had not invited the error per se, but

the defendant had abandoned the argument by expressly indicating to the

sentencing court that he had no additional or remaining objections to the

proceedings. Id. Similarly, in the instant case, Mr. Peña-Baez did not invite the

error per se, but Mr. Peña-Baez never presented the argument now made, whereas

the defendant in Carrasco-Salazar did, and defense counsel here expressly

foreclosed the argument by telling the court, in no uncertain terms, that Mr. Peña-

Baez had the authority to consent.

      The Supreme Court in United States v. Olano, 507 U.S. 725, 733 (1993)

stated that waiver is the “intentional relinquishment or abandonment of a known

right.” (internal quotations omitted). From the Defendant-Appellant's motion to

suppress and the arguments made at the suppression hearing, and the findings

noted, it is clear that the only argument pursued was whether Mr. Peña-Baez

voluntarily consented. The argument now before us regarding authority to


                                          -9-
consent was not made in the motion to suppress or during the proceedings below.

Furthermore, Defense counsel's clear statement at the suppression hearing that

Mr. Peña-Baez had the authority to consent is an express representation that

forecloses the argument from being made on appeal. This concession by counsel

constitutes an intentional relinquishment of the opportunity to pursue that

argument on appeal. Therefore, we find that the appellate argument offered by

the Defendant-Appellant was waived.

                               IV. CONCLUSION

      We AFFIRM the district court’s denial of the motion to suppress and we

further find that the issue presented in this appeal was waived.

IT IS SO ORDERED.

                                                          Entered for the Court

                                                          William J. Holloway, Jr.
                                                          Circuit Judge




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