                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              APR 22 2011

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

UNITED STATES OF AMERICA,                        No. 09-50552

              Plaintiff - Appellee,              D.C. No. 5:08-cr-00161-VAP-1

  v.
                                                 MEMORANDUM*
OMAR ARREGUIN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                     Argued and Submitted February 11, 2011
                              Pasadena, California

Before: GOODWIN, D.W. NELSON, and N.R. SMITH, Circuit Judges.

       Omar Arreguin entered a conditional guilty plea to a two-count indictment

charging him with possession of methamphetamine with intent to distribute in

violation of 21 U.S.C. § 841. Pursuant to the terms of his plea agreement, Arreguin

now challenges the district court’s denial of his motion to suppress evidence obtained



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
in a warrantless search of his residence by agents of the Drug Enforcement

Administration, as well as statements he made to the agents following his arrest.

Arreguin contests: (1) the district court’s factual findings; (2) the district court’s

finding that Arreguin’s written consent to a search of the residence was voluntary; and

(3) the district court’s conclusion that an overnight guest, Elias Valencia, possessed

authority to consent to the agents’ entry and search.

      For the reasons that follow, we affirm the district court’s order in part, reverse

in part and remand for further proceedings. Because the parties are familiar with the

facts of the case, we do not recite them here except as necessary to explain our

decision.

      1.     The District Court’s Factual Findings

      At the suppression hearing, defense witnesses testified to a version of events

regarding the agents’ search of the residence that differed sharply from the testimony

of the Government’s sole witness, Special Agent John Rubio. In denying Arreguin’s

motion, the district court specifically found “the Government’s witness[’s] version of

the events surrounding the task force’s entry into the residence more credible than

those of the defense witnesses.” In particular, the district court found credible Agent

Rubio’s “testimony that Valencia opened the door in the presence of the other adult




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occupants [Arreguin and his wife], without any objection on their parts,” and

consented to the agents’ entry and search of the house.

      While failing to contest these findings in his opening brief, Arreguin’s counsel

stated at oral argument that this issue was implicit in his reliance on the testimony of

defense witnesses in his opening brief.1 Despite the presentation of contradictory

testimony, Arreguin has failed to identify any evidence suggesting that the district

court’s credibility determination was clearly erroneous.          See United States v.

Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008) (“Where testimony is taken, we give

special deference to the district court’s credibility determinations.”) (citing United

States v. Nelson, 137 F.3d 1094, 1110 (9th Cir. 1998)). Further, this credibility issue

has been waived because Arreguin failed to challenge the district court’s factual

findings in his opening brief. See United States v. Waters, 622 F.3d 1075, 1089 n.6

(9th Cir. 2010) (failure to raise issue in opening brief results in waiver); United States

v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (same). Accordingly, we affirm the

district court’s findings of fact. We review the additional issues presented solely

according to the version of events testified to by Agent Rubio.

      2.        Arreguin’s Written Consent




      1
          Arreguin’s counsel also failed to file a reply brief.

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       The district court denied Arreguin’s motion to suppress in part because of his

written consent to a search of the residence, which was obtained after his arrest. In

this ruling, the district court rejected Arreguin’s claim that his consent was coerced.

As conceded by the Government at oral argument, however, Arreguin’s consent

cannot be used to support the validity of the warrantless search because Arreguin

signed the consent form only after the search was conducted.2 See United States v.

Lewis, 231 F.3d 238, 241 (6th Cir. 2000) (“[T]he government cannot rely on the

consent form signed by [Defendant] to justify the search after the fact.”); United

States v. George, 883 F.2d 1407, 1417 (9th Cir. 1989) (affirming denial of motion to

suppress based on district court’s factual finding that consent was obtained before

search began, rather than after, as third party testified). Accordingly, the district court

erred in suggesting that Arreguin’s written consent was a basis upon which to deny

his motion. We therefore decline to address whether his consent was coerced.

       3.    Valencia’s Authority to Consent to the Search

       The district court denied Arreguin’s motion mainly on the finding that Valencia

had authority to consent to the search. The Government has the burden of establishing

the effectiveness of a third party’s consent to a search of a defendant’s property.

       2
        While Arreguin turned over additional narcotics in his possession following
his arrest, this evidence was not obtained as a result of the agents’ search of the
residence.

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United States v. Welch, 4 F.3d 761, 764 (9th Cir. 1993) (citing Illinois v. Rodriguez,

497 U.S. 177 (1990)); see also United States v. Reid, 226 F.3d 1020, 1025 (9th Cir.

2000) (“‘The existence of consent to a search is not lightly to be inferred and the

government always bears the burden of proof to establish the existence of effective

consent.’”) (quoting United States v. Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1990)).

Based on the evidence deemed credible, the district court found that Valenica—a

guest at the house—had verbally consented to the agents’ search of the residence.

Because Valencia had given this consent in the immediate presence of Arreguin and

his wife—the actual tenants—the district court found that Agent Rubio “reasonably

concluded Valencia had ostensible authority to permit entrance and search.”

      The Government has not argued here that Valencia possessed actual or any

express authority to consent to a search, nor is there evidence that Valencia possessed

such authority. See United States v. Matlock, 415 U.S. 164, 171 n.7 (1974) (noting

that the actual authority of a party to consent to a search rests “on mutual use of the

property by persons generally having joint access or control for most purposes, so that

it is reasonable to recognize that any of the co-inhabitants has the right to permit the

inspection in his own right and that the others have assumed the risk that one of their

number might permit the common area to be searched”); United States v. Fultz, 146

F.3d 1102, 1105 (9th Cir. 1998) (holding that a third party has authority to consent to


                                           5
a search of property if the owner “has expressly authorized the third party to give

consent or if the third party has mutual use” of the property). While discussed at oral

argument, the Government has also not argued that the search was warranted on the

basis of a safety sweep. In fact, there are no facts in the record to support a protective

sweep of the house because no one had been arrested at the time of the initial search

and there was no reason to believe the house “harbor[ed] an individual posing a

danger to those on the arrest scene.” Maryland v. Buie, 494 U.S. 325, 334 (1990); see

also id. at 327 (“A ‘protective sweep’ is a quick and limited search of premises,

incident to an arrest and conducted to protect the safety of police officers or others.”).

      The Government argues that Valencia possessed apparent authority to consent

the search of the residence. The specific evidence at issue, however, was found as a

result of searches of a shoe box located in the master bathroom and a Gucci bag

located inside a car parked in the garage. The Government has the burden of

establishing that Valencia had apparent authority to consent to the specific areas

searched, not just authority to consent to a generalized search of the residence. See

United States v. Dearing, 9 F.3d 1428, 1430 (9th Cir. 1993) (holding that it was

reasonable for officers to believe that a caretaker who lived in a house had authority

over common areas but that it was unreasonable to assume the caretaker had actual

authority to consent to a search of the defendant’s bedroom); United States v. Davis,


                                            6
332 F.3d 1163, 1170 (9th Cir. 2003) (holding that a third party who shared an

apartment with the defendant did not have actual or apparent authority to consent to

a search of the defendant’s belongings); United States v. Fultz, 146 F.3d 1102, 1106

(9th Cir. 1998) (finding no apparent authority where officers were aware that

appellant’s boxes were in a specific area and homeowner informed them that the

boxes were appellant’s); Welch, 4 F.3d at 765 (holding that a third party who

consented to a search of his car did not have apparent authority to grant officers

consent to search his girlfriend’s purse, which was located in the trunk). The district

court did not rule on whether Valencia had apparent authority to consent to a search

of the master bathroom, the shoe box, the garage, the car, or the Gucci bag found

within the car.

      While conceding at oral argument that Agent Rubio’s testimony is unclear

whether the money found in the Gucci bag was itself in plain view, the Government

argued that any dispute over the scope of the search was waived because it was not

raised before the district court. The trial court record, however, does not support the

Government on this argument. Arreguin specifically disputed the validity of the

search of the Gucci bag in his motion before the district court, as well as Valencia’s

authority to consent to a search of the “entire premises.” While obscured by defense




                                          7
counsel’s otherwise meritless arguments about the circumstances of the search, these

claims were again raised in this appeal.

      Defense counsel managed to obscure the relevant legal issues in this case

through his borderline “assistance.” Indeed, the district court initially denied the

suppression motion without a hearing because counsel failed to follow relevant local

rules. The district court allowed defense witnesses to testify only after counsel

threatened that his own failure to proffer testimony in a timely fashion would

otherwise amount to ineffective assistance of counsel. While the Government

suggests the violation of local rules is an alternative basis upon which to affirm, the

district court ultimately did not rely on this issue in denying the motion. Under the

circumstances, however, it is understandable how the primary issues in this

matter—the viability and scope of Valencia’s apparent authority—became lost, as

defense counsel failed to even mention them at oral argument before the district court

or here.

      Because the scope of Valencia’s apparent authority was not addressed by the

district court, we remand this case for a determination whether any evidence justified

Rubio’s alleged belief that Valencia had apparent authority to consent to a search of

the shoe box and Gucci bag.

      AFFIRMED in part, REVERSED in part and REMANDED.


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