                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                        August 27, 2007
                      UNITED STATES CO URT O F APPEALS
                                                                     Elisabeth A. Shumaker
                                   TENTH CIRCUIT                         Clerk of Court



 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                        No. 06-2109
 v.                                              (D.C. No. CR 04-2250 M CA)
                                                           (D .N.M .)
 YA UD IS VENZAN T-DIAZ,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before KELLY, EBEL, and HO LM ES, Circuit Judges.


               Yaudis Venzant-Diaz pleaded guilty to one count of possession of

cocaine base with intent to distribute and one count of using or carrying a firearm

in relation to a drug crime, pursuant to a conditional plea agreement that

preserved his right to appeal an adverse ruling on a suppression motion. W e find

no clear error in the district court’s factual finding that M r. Venzant-Diaz

consented to the challenged search, and we affirm.




      *
         This order and judgment is not binding precedent except under the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.
I. BAC K GR OU N D

      On October 22, 2004, a confidential informant tipped off Officer M ichael

W erner of the Albuquerque Police Department (“APD ”) that M r. Venzant-Diaz

was dealing crack cocaine from his home and that he had hidden both narcotics

and a stolen firearm there. Based on this information, Officer W erner,

accompanied by fellow Officers Tank Guenther and Elder Guevarra, went to the

home of M r. Venzant-Diaz to conduct a warrantless “knock-and-talk” in an

attempt to obtain M r. Venzant-Diaz’s consent to a search of the house.

      According to the officers, they told M r. Venzant-Diaz of their suspicions

and asked his permission to enter and search. He responded by inviting the

officers to “come on in and look.” A sked more specifically if the officers could

search for the stolen firearm in the kitchen stove, where the confidential

informant said it could be found, M r. Venzant-Diaz again consented explicitly:

“Go ahead. Look in the stove. You’re not going to find anything.”

      M r. Venzant-Diaz disputes this account of the search, and he contends that

he never gave the officers his consent to enter his home or search the premises.

According to M r. Venzant-Diaz, the officers entered as soon as he opened the

door, neither asking for nor receiving his permission to enter. Further, M r.

Venzant-Diaz testified he “never at any time told them that they could look

around,” and that the officers never asked him whether they could search his




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home. M r. Venzant-Diaz claims he did not actively oppose the officers’ entry,

however, because he feared they would physically assault him. 2

      The parties do not dispute that the search of M r. Venzant-Diaz’s home

yielded a Glock pistol, hidden in a disguised compartment on the oven door. A

check of the gun’s serial number in the NCIC database showed that it had

previously been reported stolen. M r. Venzant-Diaz was informed of his M iranda

rights, handcuffed, and transported to the police station. Under questioning by

Officer Guevarra at the station, M r. Venzant-Diaz admitted to selling both

methamphetamine and crack cocaine and to purchasing the Glock from a customer

for self-protection. Officer W erner, meanwhile, obtained a search warrant for M r.

Venzant-Diaz’s home, later executed it with M r. Venzant-Diaz present, and

      2
        M r. Venzant-Diaz’s claimed fear apparently stemmed from an incident on
October 16, 2004, in which M r. Venzant-Diaz’s car was stopped and he was
arrested on suspicion of possessing methamphetamines and for resisting arrest.
Officer W erner was the supervising officer at the scene, and he testified that
“there had been some use of force” against M r. Venzant-Diaz by the arresting
officer. According to M r. Venzant-Diaz, the officers who stopped him, including
Officer W erner, handcuffed him and then beat and threatened him. Officer
W erner testified that he did not believe any beating occurred and that he believed
M r. Venzant-Diaz’s injuries were sustained pursuant to officers’ use of force
necessary to take M r. Venzant-Diaz into custody. It is undisputed that M r.
Venzant-Diaz w as transported from the scene via ambulance to a hospital, where
he was treated for a laceration on his face, held overnight, and then released.
       In the district court, M r. Venzant-Diaz sought dismissal of the charges
against him based upon these allegations, which he contended amounted to
outrageous governmental misconduct. The district court denied the motion, and
M r. Venzant-Diaz does not appeal this decision. Accordingly, the only issue
before this court is whether the district court erred in determining M r. Venzant-
Diaz consented to the search of his home, which does not require us to determine
the truth of M r. Venzant-Diaz’s allegation that he was beaten by APD officers.

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discovered an amount of crack cocaine, packaged for retail distribution, in the

hollowed-out legs of M r. Venzant-Diaz’s kitchen table. M r. Venzant-Diaz was

subsequently indicted on one count of unlawfully and knowingly possessing a

firearm subsequent to a felony conviction, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2) (“Count I”); one count of possession with intent to distribute more

than 5 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a) and (b)(1)(B)

(“Count II”); and one count of knowingly carrying a firearm in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c) (“Count III”).

      M r. Venzant-Diaz moved to suppress both the physical evidence against

him and the statements he made in interrogation, arguing they were the result of

an unconsented, warrantless search in violation of the Fourth Amendment. The

district court held a hearing on the suppression motion at which M r. Venzant-Diaz

and all three officers testified. At the conclusion of the hearing, the district court

found the testimony of the officers credible, but it found M r. Venzant-Diaz’s

testimony credible only “when he told us his name and when he told us he paid

$60 for the Glock. Other than that, I totally disregard his testimony as being

basically incred[ible].” The district court noted that M r. Venzant-Diaz’s

allegation of the earlier beating “causes me trouble, but not in the sense of the

consent in this case.” The court found that the officers did not need a search

warrant, as M r. Venzant-Diaz “invited them in.” Accordingly, the district court

denied the motion to suppress.

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      Subsequently, M r. Venzant-Diaz pleaded guilty to Counts II and III of the

indictment against him, pursuant to a conditional plea agreement which preserved

his right to appeal the district court’s denial of his motion to suppress and his

motion to dismiss the indictment. He filed a timely notice of appeal, and we have

jurisdiction under 28 U.S.C. § 1291.

II. D ISC USSIO N

      “W hen reviewing a district court’s denial of a motion to suppress, we view

the evidence in the light most favorable to the government, accepting the district

court’s factual findings unless clearly erroneous.” United States v. Villagrana-

Flores, 467 F.3d 1269, 1273 (10th Cir. 2006) (quoting United States v. Gregoire,

425 F.3d 872, 875 (10th Cir. 2005)). The scope of consent, and whether it was

exceeded under the circumstances of the challenged search, are questions of fact.

United States v. Rosborough, 366 F.3d 1145, 1150 (10th Cir. 2004). And “[t]he

validity of consent to search requires a factual determination based upon the

totality of the circumstances of whether the consent was ‘the product of an

essentially free and unconstrained choice by [the] maker’ or whether it was ‘the

product of duress or coercion, express or implied.’” United States v. Sawyer, 441

F.3d 890, 894 (10th Cir. 2006) (quoting Schneckloth v. Bustamonte, 412 U.S.

218, 225, 227 (1973); internal citations omitted). Accordingly, we review a

district court’s determinations whether consent was given, what its scope was, and

whether it was given voluntarily, for clear error. See United States v. Zubia-

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M elendez, 263 F.3d 1155, 1162 (10th Cir. 2001). “The witnesses[’] credibility

and the weight to be given evidence, together with all inferences and conclusions

drawn from the evidence, are matters within the province of the district judge.”

United States v. Stephenson, 452 F.3d 1173, 1176 (10th Cir. 2006).

      Before this court, M r. Venzant-Diaz raises three challenges to the district

court’s denial of his motion to suppress. First, he argues that the district court

improperly equated M r. Venzant-Diaz’s consent to the officers’ entry into his

home with a consent to search. Second, he contends the district court’s findings

on the credibility of w itness testimony at the suppression hearing were

inconsistent with its order to investigate further M r. Venzant-Diaz’s allegations

he had been beaten at his October 16, 2004, arrest. Third, he argues the

Government failed to carry its burden of demonstrating M r. Venzant-Diaz’s

consent to entry and search was voluntary, even accepting the officers’ testimony.

For none of the three claims, however, does M r. Venzant-Diaz provide evidence

which leaves us “with the definite and firm conviction that a mistake has been

comm itted.” United States v. W ilfong, 475 F.3d 1214, 1218 (10th Cir. 2007)

(quotation omitted).

      M r. Venzant-Diaz’s first contention, that the district court found only

consent to enter his home, not consent to search, is directly belied by the w itness

testimony and the credibility determination made by Judge Conway at the

suppression hearing. As Officer W erner testified, he specifically asked M r.

                                         -6-
Venzant-Diaz for permission to search the kitchen stove for a gun; according to

the officer’s testimony, M r. V enzant-Diaz replied, “Go ahead. Look in the stove.

You’re not going to find anything.” The district court stated that it believed

Officer W erner’s testimony about the circumstances of the search and disbelieved

M r. Venzant-Diaz’s testimony to the contrary. M r. Venzant-Diaz provides no

evidence other than his testimony to suggest the district court erred in its

determination, and we will not set aside a factual finding of consent to search

based on M r. Venzant-Diaz’s bare assertion that the district court incorrectly

found the officers credible.

      M r. Venzant-Diaz next argues that the district court’s factual findings are

“internally inconsistent” and that its “admonishment to counsel to further

investigate the alleged beating of M r. Venzant-Diaz on October 16, 2004, [flew ]

in the face of the witness credibility findings it had just announced.” According

to this theory, because the district court apparently found some potential for truth

in M r. Venzant-Diaz’s allegation that he had been beaten, it “erred by failing to

analyze the voluntariness of M r. Venzant-Diaz’s consent in light of these

circumstances.” W e disagree. There is no inherent inconsistency between the

district court’s factual finding that consent was voluntarily given and the court’s

apparent concern with the actual facts underlying M r. Venzant-Diaz’s allegation

of a beating at the hands of APD officers. Indeed, it would have been entirely

consistent for the court to find that M r. Venzant-Diaz had been beaten on October

                                         -7-
16, 2004, and yet he voluntarily offered his consent to the officers’ search a week

later. It is the province of the district court to w eigh the credibility of w itnesses,

and on the evidence presented on appeal we do not conclude that its weighing was

clearly erroneous.

       Finally, M r. Venzant-Diaz argues that, even accepting the officers’

testimony, the totality of the circumstances of the search indicates his consent

was involuntary, contrary to the district court’s determination. He points to the

presence in his home of three uniformed and armed police officers, the absence of

other civilians in the home, the prior use of force in response to his resisting

arrest on October 16, 2004, and his physically vulnerable condition while he

recovered from the injuries he sustained in that incident, as factors w eighing in

favor of a finding that his consent was coerced. W e find nothing, however, that

would permit us to label the district court’s conclusion of voluntariness to be

clear error. There was no testimony that the officers at any point drew their

weapons, made threats, or employed any force whatsoever against M r. Venzant-

Diaz. See U nited States v. Cruz-M endez, 467 F.3d 1260, 1265-66 (10th Cir.

2006) (finding the courteous interaction of several armed officers with an

inhabitant did not render consent to search coerced); United States v. Ledesma,

447 F.3d 1307, 1314 (10th Cir. 2006) (collecting factors bearing on the

determination of voluntariness, none of which is dispositive). And whatever

conclusion we may have drawn from the evidence presented at the suppression

                                           -8-
hearing ab initio, there simply is no basis for overturning the factual

determination of voluntariness under these circumstances.

III. C ON CLU SIO N

      The district court’s factual determinations — that M r. Venzant-Diaz

consented to the officers’ entry into his home and to their search of his kitchen

stove, and that his consent was voluntarily given and not the product of duress or

coercion — are not clearly erroneous. Accordingly, we AFFIRM the district

court’s denial of M r. Venzant-Diaz’s motion to suppress his statements and the

physical evidence procured as a result of the consented search and through the

subsequently obtained warrant.




                                        ENTERED FOR THE COURT



                                        David M . Ebel
                                        Circuit Judge




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