United States v. Peter Vongxay ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 09-10072
Plaintiff-Appellee,
v.  D.C. No.
1:08-CR-00030-LJO
PETER VONGXAY,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted
January 12, 2010—San Francisco, California
Filed February 9, 2010
Before: Myron H. Bright,* Michael Daly Hawkins, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
2345
2348 UNITED STATES v. VONGXAY
COUNSEL
Daniel J. Broderick, Federal Defender, and Douglas J.
Beevers, Assistant Federal Defender, Fresno, California, for
defendant-appellant Peter Vongxay.
Lawrence G. Brown, United States Attorney, and Elana S.
Landau, Assistant United States Attorney, Fresno, California,
Attorneys for plaintiff-appellee United States of America.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
Defendant-Appellant Peter Vongxay appeals his conviction
for being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). He challenges his conviction on three
grounds. First, he argues that § 922(g)(1) violates the Second
Amendment. Next, he asserts that § 922(g)(1) violates his
right to equal protection under the Due Process Clause of the
Fifth Amendment. Finally, he claims that the arresting offi-
cer’s search violated his Fourth Amendment right to be free
from unreasonable searches and seizures. We affirm the judg-
ment of the district court on all Vongxay’s claims.
FACTUAL AND PROCEDURAL BACKGROUND
Vongxay was arrested outside the After Dark Nightclub, a
known venue of gang activity and violence, which was
located within the area patrolled by Officer Alfred Campos of
the Fresno Police Department. The club was a known hangout
UNITED STATES v. VONGXAY 2349
for at least two gangs: the Asian Crips and the Tiny Rascals.
Based on his experience and training, Campos knew that these
gang members typically dressed in blue L.A. Dodgers cloth-
ing. Campos testified that the two gangs engaged in “constant
shootings at each other, armed with guns” and that they
caused “disturbances.”
On the night of Vongxay’s arrest, Campos approached the
After Dark Nightclub in a marked vehicle. He saw a group of
Asian males loitering in front of the club dressed in the blue
athletic apparel commonly worn by members of the gangs. As
soon as the group noticed him they began to retreat out of the
parking lot and funnel into the club. After calling for backup,
Campos drove around the block and re-approached the club
on foot. By that time, the same group of males had once again
gathered outside the club. The first person Campos encoun-
tered was Vongxay. Campos “engaged in a conversation with
him and asked him if he was leaving, or if he was going to
go into the nightclub.”
While Campos asked Vongxay about his presence at the
club, he noticed that Vongxay appeared to be attempting to
conceal something under his waistband. Specifically,
Vongxay “turned his body to the left and kept his waist area
away from [Campos] . . . [a]nd . . . he placed his left hand
down towards his waist area as if he was covering some-
thing.” Thinking that Vongxay was armed, Campos posi-
tioned himself behind Vongxay and asked him if he had any
weapons. Vongxay said that he did not. Campos then asked
Vongxay if he could search him for weapons. Vongxay did
not verbally respond, but “placed his hands on his head.”
Campos began the search by feeling Vongxay’s waistband
and immediately felt the frame of a large handgun. As soon
as Campos felt the gun, Vongxay attempted to pull away. A
struggle ensued, and a loaded semiautomatic handgun fell
from Vongxay’s waistband. Vongxay continued to fight,
bringing Campos down to the ground. It took the assistance
2350 UNITED STATES v. VONGXAY
of additional officers and a Taser gun to overpower Vongxay
and arrest him.
Vongxay was charged with being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). Vongxay had
three previous, non-violent felony convictions: two for car
burglary and one for drug possession. Vongxay filed a motion
to dismiss the indictment on the ground that § 922(g)(1) vio-
lates the Second Amendment. He also argued that § 922(g)(1)
violates his right to equal protection under the Fifth Amend-
ment Due Process Clause. Finally, he moved to suppress the
gun that was seized from him, asserting that he did not con-
sent to the search, and that Campos had violated his Fourth
Amendment right to be free from unreasonable searches and
seizures. The district court denied Vongxay’s motions in an
oral ruling, finding that Vongxay had consented to the search
and that § 922(g)(1) does not violate either the Second or
Fifth Amendments. After a two-day trial, a jury found
Vongxay guilty of being a felon in possession of a firearm.
JURISDICTION AND STANDARD OF REVIEW
We review the constitutionality of a statute de novo. United
States v. Jones, 231 F.3d 508, 513 (9th Cir. 2000). We also
review constitutional challenges to the district court’s denial
of a motion to dismiss de novo. United States v. Palmer, 3
F.3d 300, 305 (9th Cir. 1993). We review a district court’s
finding of consent to a search for clear error. United States v.
Shaibu, 920 F.2d 1423, 1425 (9th Cir. 1990). We have juris-
diction under 28 U.S.C. § 1291.
DISCUSSION
Vongxay appeals his conviction for being a felon in posses-
sion of a firearm. He argues that 18 U.S.C. § 922(g)(1) vio-
lates the Second Amendment, and the equal protection
component of the Fifth Amendment Due Process Clause. He
also argues that he was searched without his consent in viola-
UNITED STATES v. VONGXAY 2351
tion of his Fourth Amendment right to be free from unreason-
able searches and seizures.
I. Second Amendment Claim
A. District of Columbia v. Heller
Vongxay argues that 18 U.S.C. § 922(g)(1) violates his
Second Amendment right to bear arms. Section 922(g)(1)
reads:
It shall be unlawful for any person . . . who has been
convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . to
ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammuni-
tion which has been shipped or transported in inter-
state or foreign commerce.
Vongxay cites no authority holding that 18 U.S.C.
§ 922(g)(1) violates the Second Amendment, but asserts that
District of Columbia v. Heller, 128 S. Ct. 2783 (2008),
requires that conclusion. He is mistaken. Nothing in Heller
can be read legitimately to cast doubt on the constitutionality
of § 922(g)(1).
In Heller, a District of Columbia (D.C.) special policeman
applied to register a handgun he wished to keep in his home
for his personal protection. 128 S. Ct. at 2788. D.C. refused
this request because it had a local ordinance making it a crime
to carry an unregistered firearm, prohibiting the registration of
handguns, and requiring residents to keep lawfully owned
firearms unloaded and dissembled or bound by a trigger lock
or similar device. Id. Heller filed suit on Second Amendment
grounds, seeking to enjoin D.C. from enforcing the gun ordi-
nance that prohibited him from keeping an unlicensed firearm
in his home. He also challenged the trigger-lock requirement
2352 UNITED STATES v. VONGXAY
to the degree it unduly restricted the use of a functional fire-
arm in his home. Id.
[1] After analyzing the history of the Second Amendment,
among other things, the Court held “that the Second Amend-
ment conferred an individual right to keep and bear arms.”
Heller, 128 S. Ct. at 2799. Its specific holding as to Heller
was that D.C.’s “ban on handgun possession in the home vio-
lates the Second Amendment, as does its prohibition against
rendering any lawful firearm in the home operable for the pur-
pose of immediate self-defense.” Heller, 128 S. Ct. at 2821-
22. The majority then added:
The Constitution leaves the District of Columbia a
variety of tools for combating [the problem of hand-
gun violence in this country], including some mea-
sures regulating handguns. But the enshrinement of
constitutional rights necessarily takes certain policy
choices off the table. These include the absolute pro-
hibition of handguns held and used for self-defense
in the home.
Heller, 128 S. Ct. at 2822 (emphases added) (internal citation
omitted). Accordingly, Heller had the right to register and
keep a loaded firearm in his home for self-defense, provided
he was “not disqualified from the exercise of Second Amend-
ment rights.” Id. The Court explained how such a disqualifi-
cation could occur, stating:
Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone
through the 19th-century cases, commentators and
courts routinely explained that the right was not a
right to keep and carry any weapon whatsoever in
any manner whatsoever and for whatever purpose.
. . . Although we do not undertake an exhaustive his-
torical analysis today of the full scope of the Second
Amendment, nothing in our opinion should be taken
UNITED STATES v. VONGXAY 2353
to cast doubt on the longstanding prohibitions on the
possession of firearms by felons and the mentally ill,
or laws forbidding the carrying of firearms in sensi-
tive places such as schools and government build-
ings, or laws imposing conditions and qualifications
on the commercial sale of arms.
Heller, 128 S. Ct. at 2816-2817 (emphasis added) (internal
citation omitted). The Court further noted that “[w]e identify
these presumptively lawful regulatory measures only as
examples; our list does not purport to be exhaustive.” Heller,
128 S. Ct. at 2817, n.26 (emphasis added). Thus, felons are
categorically different from the individuals who have a funda-
mental right to bear arms,1 and Vongxay’s reliance on Heller
is misplaced.
Vongxay nevertheless contends that the Court’s language
about certain long-standing restrictions on gun possession is
dicta, and therefore not binding. We disagree. Courts often
limit the scope of their holdings, and such limitations are inte-
gral to those holdings. Indeed, “[l]egal rulings in a prior opin-
ion are applicable to future cases only to the degree one can
ascertain from the opinion itself the reach of the ruling.”
Penuliar v. Mukasey, 528 F.3d 603, 614 (9th Cir. 2008); see
also Black’s Law Dictionary 1100 (7th ed. 1999) (defining
dictum as a statement in an opinion that is “unnecessary to the
decision in the case and therefore not precedential”).
[2] Since Heller does not render § 922(g)(1) unconstitu-
tional, we next consider the impact of other case law.
1
In his dissent, Justice Stevens underscores the fact that Heller “limits
the protected class to ‘law abiding, responsible citizens.’ ” Heller, 128 S.
Ct. at 2827 (Stevens, J., dissenting).
2354 UNITED STATES v. VONGXAY
B. The Impact of Case Law Other Than Heller on the
Constitutionality of Section 922(g)(1)
[3] In United States v. Younger, 398 F.3d 1179, 1192 (9th
Cir. 2005), we held that § 922(g)(1) does not violate the Sec-
ond Amendment rights of a convicted felon. However, we
performed only minimal analysis of the claim because, at the
time, we were bound by Silveira v. Lockyer, 312 F.3d 1052
(9th Cir. 2002), which held that the Second Amendment does
not confer an individual right to possess arms. Younger, 398
F.3d at 1192.2 Like Vongxay, Younger argued that
§ 922(g)(1) unconstitutionally limits “firearm possession by
categories of people who have not been deemed dangerous.”
Appellant Clydell Younger’s Opening Br., 2004 WL 1810097
at *57 (Jul. 2, 2004). We declined to make a distinction
between violent and non-violent felons and held that
§ 922(g)(1), which prohibits all felons from possessing fire-
arms, was constitutional.
[4] The reasoning upon which Younger was based—that
the Second Amendment does not give individuals a right to
bear arms—was invalidated by Heller. However, we are still
bound by Younger. See In re Osborne, 76 F.3d 306, 309 (9th
Cir. 1996) (holding that “[f]irst, a panel of this court may not
overrule a decision of a previous panel; only a court in banc
has such authority” and “[s]econd, the doctrine of stare deci-
sis concerns the holdings of previous cases, not the rationales”
(internal citations omitted)). Therefore, Younger controls.3
2
In Younger we also cited a Fifth Circuit case holding that, even though
an individual right to bear arms was recognized in the Fifth Circuit, felon
restrictions were permissible “narrowly tailored exception[s]” to the right.
Younger, 398 F.3d at 1192 (citing United States v. Everist, 368 F.3d 517,
519 (5th Cir. 2004)); see also our discussion of Everist infra p. 2355.
3
Prior to Heller, the Supreme Court upheld a previous version of the
felon-in-possession statute. Lewis v. United States, 445 U.S. 55, 67 (1980).
However, Lewis is not binding with regard to Vongxay’s Second Amend-
ment claim because it involved only Fifth and Sixth Amendment chal-
UNITED STATES v. VONGXAY 2355
Although our legal inquiry ends with Younger, our holding is
buttressed by the fact that Younger upheld the very type of
gun possession restriction that the Supreme Court deemed
“presumptively lawful.” Heller, 128 S. Ct. at 2817 n.26.
Our examination of cases from other circuits and of histori-
cal gun restrictions also lends credence to the post-Heller via-
bility of Younger’s holding. For example, prior to Heller, the
Fifth Circuit upheld § 922(g)(1) as a “limited and narrowly
tailored exception to the freedom to possess firearms, reason-
able in its purposes and consistent with the right to bear arms
protected under the Second Amendment.” United States v.
Everist, 368 F.3d 517, 519 (5th Cir. 2004). Fifth Circuit cases
from that era are particularly instructive for post-Heller analy-
ses because, even before Heller, the Fifth Circuit held that the
Second Amendment guarantees an individual right to possess
lenges; no Second Amendment claim was presented. In fact, Lewis’s
Second Amendment reference was limited to a sentence that Heller itself
minimizes, stating:
No Second Amendment claim was raised or briefed by any party.
In the course of rejecting the asserted challenge, the Court com-
mented [on the Second Amendment] gratuitously, in a footnote
. . . . It is inconceivable that we would rest our interpretation of
the basic meaning of any guarantee of the Bill of Rights upon
such a footnoted dictum in a case where the point was not at issue
and was not argued.
Heller, 128 S. Ct. at 2816 n.25.
Lewis is therefore inapposite to Vongxay’s Second Amendment claim.
On the other hand, in making its equal protection determination, the Lewis
Court necessarily had to find (or assume) that the Second Amendment did
not confer an individual, fundamental right to bear arms. See Lewis, 445
U.S. at 66 n.8. To the extent that the Second Amendment conclusion is
considered essential to the decision, this court would be bound by Lewis.
See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989). However, because Younger more clearly decided this issue on Sec-
ond Amendment grounds, we need not engage in a protracted analysis of
whether or not Lewis’s Second Amendment discussion was a reasoned
decision or a “gratuitous” comment. See Heller, 128 S. Ct. at 2816 n.25.
2356 UNITED STATES v. VONGXAY
guns. See United States v. Emerson, 270 F.3d 203, 260 (5th
Cir. 2001). Thus, the Fifth Circuit determined that, although
there is an individual right to bear arms, felon restrictions are
permissible even under heightened scrutiny. Everist, 368 F.3d
at 519 (“Irrespective of whether [the] offense was violent in
nature, a felon has shown manifest disregard for the rights of
others. He may not justly complain of the limitation on his
liberty when his possession of firearms would otherwise
threaten the security of his fellow citizens.”).
In addition, the D.C. Circuit opinion that Heller affirmed
recognized an individual right to bear arms. It held:
[T]he government is [not] absolutely barred from
regulating the use and ownership of pistols. The pro-
tections of the Second Amendment are subject to the
same sort of reasonable restrictions that have been
recognized as limiting, for instance, the First
Amendment. See Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989) (“[G]overnment may impose
reasonable restrictions on the time, place, or manner
of protected speech . . . .”). Indeed, the right to keep
and bear arms . . . was subject to restrictions at com-
mon law. We take these to be the sort of reasonable
regulations contemplated by the drafters of the Sec-
ond Amendment.
Parker v. Dist. of Columbia, 478 F.3d 370, 399 (D.C. Cir.
2007), cert. granted in part sub nom. Dist. of Columbia v.
Heller, 552 U.S. 1035 (2007), and aff’d, 128 S. Ct. 2783
(2008).
We also note that to date “no court that has examined
Heller has found 18 U.S.C. § 922(g) constitutionally suspect.”
United States v. Baron, Nos. CR-06-2095-FVS, CV-08-3048-
FVS, 2008 WL 5102307, at *2 (E.D. Wash. Nov. 25, 2008);
see, e.g., United States v. Smith, 329 F. App’x 109, 111 (9th
Cir. 2009) (“Heller did not disturb Lewis’s narrow holding—
UNITED STATES v. VONGXAY 2357
that felons have no constitutional right to possess firearms.”);
United States v. Gilbert, 286 F. App’x 383, 386 (9th Cir.
2008) (holding that, under Heller, convicted felons do not
have the right to possess firearms). Thus, there appears to be
a consensus that, even given the Second Amendment’s indi-
vidual right to bear arms, felons’ Second Amendment rights
can be reasonably restricted.
Denying felons the right to bear arms is also consistent with
the explicit purpose of the Second Amendment to maintain
“the security of a free State.” U.S. Const. amend. II; see also
Parker, 478 F.3d at 399 (holding that “[r]easonable restric-
tions also might be thought consistent with a ‘well-regulated
Militia,’ ” and noting that “felonious conduct” would render
a person “unsuitable for service in the militia”). Felons are
often, and historically have been, explicitly prohibited from
militia duty. See, e.g., D.C. Code § 49-401 (outlining current
prohibition on felons in the militia).4
Finally, we observe that most scholars of the Second
Amendment agree that the right to bear arms was “inextrica-
bly . . . tied to” the concept of a “virtuous citizen[ry]” that
would protect society through “defensive use of arms against
criminals, oppressive officials, and foreign enemies alike,”
and that “the right to bear arms does not preclude laws dis-
arming the unvirtuous citizens (i.e. criminals) . . . .” Don B.
Kates, Jr., The Second Amendment: A Dialogue, 49 Law &
Contemp. Probs. 143, 146 (1986); see also Glenn Harlan
Reynolds, A Critical Guide to the Second Amendment, 62
Tenn. L. Rev. 461, 480 (1995) (noting that felons “were
excluded from the right to arms” because they were “deemed
incapable of virtue”). We recognize, however, that the histori-
cal question has not been definitively resolved. See C. Kevin
4
In Heller, the Court anticipated the need for such historical analyses,
stating that “there will be time enough to expound upon the historical jus-
tifications for exceptions we have mentioned if and when those exceptions
come before us.” 128 S. Ct. at 2821.
2358 UNITED STATES v. VONGXAY
Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv.
J. L. & Pub. Pol’y 695, 714-28 (2009) (maintaining that bans
on felon gun possession are neither long-standing nor sup-
ported by common law in the founding era).
[5] In sum, we hold that § 922(g)(1) does not violate the
Second Amendment as it applies to Vongxay, a convicted
felon. See Younger, 398 F.3d 1179.
II. Equal Protection Claim
Vongxay also argues that 18 U.S.C. § 922(g)(1) violates his
equal protection right under the Due Process Clause of the
Fifth Amendment because the status of “felon” is determined
differently from state-to-state, thereby limiting the rights of
criminals differently depending on the state in which they
live. In response, the government contends that many federal
statutes permissibly defer to differing state laws to define
their terms.
Vongxay urges us to review § 922(g)(1) under strict scru-
tiny because, he claims, the right to bear arms is a fundamen-
tal right. We acknowledge Vongxay’s contention that, if the
right to bear arms is a fundamental right, rational basis analy-
sis may no longer be appropriate for all Second Amendment
challenges.5 See City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 439-40 (1985) (explaining that equal protection
claims based on membership in a protected class or unequal
burdening of a fundamental right are reviewed under strict
scrutiny). However, the Supreme Court has purposefully dif-
ferentiated the right to bear arms generally from the more lim-
5
Contrary to Vongxay’s implication, Heller did not establish that Sec-
ond Amendment restrictions must be reviewed under strict scrutiny.
Instead, the Court “decline[d] to establish a level of scrutiny for evaluating
Second Amendment restrictions,” Heller, 128 S. Ct. at 2817 (referencing
Justice Breyer’s dissenting criticism of the failure to announce a level of
scrutiny), stating only that rational-basis scrutiny is not appropriate,
Heller, 128 S. Ct. at 2817 n.27.
UNITED STATES v. VONGXAY 2359
ited right held by felons. Heller, 128 S. Ct. at 2816-2817
(holding that “like most rights, the right secured by the Sec-
ond Amendment is not unlimited” and that “nothing in [this]
opinion should be taken to case doubt on the longstanding
prohibitions on the possession of firearms by felons”). There-
fore, whatever standard of review the Court implicitly applied
to Heller’s right to keep arms in his home is inapplicable to
Vongxay, a felon who was explicitly excluded from Heller’s
holding. Id. Accordingly, we are bound by pre-Heller case
law involving equal protection challenges to § 922(g).
[6] In Lewis v. United States, the Supreme Court rejected
an equal protection challenge to the predecessor to
§ 922(g)(1), which proscribed the possession of firearms by
any person (violent or non-violent) who “has been convicted
by a court of the United States . . . of a felony.” Lewis, 445
U.S. at 56 n.1. In Lewis, the Court applied a rational basis test
because it found that the right to bear arms was not a funda-
mental right. Noting that statutes are “consonant with the con-
cept of equal protection embodied in the Due Process Clause
of the Fifth Amendment if there is some rational basis for the
statutory distinctions made or they have some relevance to the
purpose for which the classification is made,” the Court deter-
mined that the felon-in-possession statute “clearly meets that
test.” Id. at 65-66 (internal quotation marks omitted).
[7] Lewis was, as Vongxay contends, based on the now-
erroneous presumption that the Second Amendment does not
apply to individuals (and is therefore not an individual funda-
mental right). Lewis, 445 U.S. at 65 n.8 (“[T]he Second
Amendment guarantees no right to keep and bear a firearm
that does not have some reasonable relationship to the preser-
vation or efficiency of a well regulated militia.” (internal quo-
tation marks omitted)). However, because the right
established by Heller does not apply to felons, we are still
bound by Lewis’s holding. See Rodriguez de Quijas, 490 U.S.
at 484; see also State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)
(“[I]t is this Court’s prerogative alone to overrule one of its
2360 UNITED STATES v. VONGXAY
precedents.”). For the reasons discussed supra Part I, we find
this distinction between felons and non-felons grounded in
both historical and modern understandings of the purpose of
the Second Amendment. Therefore, we hold that § 922(g)(1)
does not violate the equal protection guarantee of the Fifth
Amendment.
III. Search and Seizure Claim
Vongxay also claims that Campos’s pat-down search vio-
lated his Fourth Amendment right to be free from unreason-
able searches and seizures. As a result, he argues that the
district court erred in denying his motion to suppress the gun
that was found in his waistband during the search. The district
court denied Vongxay’s motion to suppress the gun because
it found that Vongxay had consented to Campos’s search.
[8] Although Campos does not claim to have had probable
cause to search Vongxay, he was nonetheless entitled to ask
Vongxay some questions, including whether or not he would
consent to a search, so long as the consent was not coerced.
See Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973).
The government bears the burden of proving consent, United
States v. Impink, 728 F.2d 1228, 1232 (9th Cir. 1984), and it
must prove that the consent was freely and voluntarily given,
Bumper v. North Carolina, 391 U.S. 543, 548 (1968). Volun-
tariness is a question of fact to be determined from all the sur-
rounding circumstances. United States v. Perez-Lopez, 348
F.3d 839, 845-46 (9th Cir. 2003).
The encounter in question began when Campos approached
Vongxay on foot and, after some preliminary questions about
this presence at the club, asked him if he had a gun. Vongxay
said “no.” Campos then asked Vongxay if he could search
him for weapons. Vongxay did not answer verbally, but
placed his hands on his head. After Campos began the search
and felt the semiautomatic handgun in Vongxay’s waistband,
Vongxay attempted to pull away, leading to a prolonged
UNITED STATES v. VONGXAY 2361
struggle that ended only with the assistance of additional offi-
cers. Vongxay contends that, by putting his hands in the air,
he was not consenting but rather was “submi[tting] to an
arrest.”
In general, we consider five factors in determining whether
consent was voluntarily given: (1) whether the defendant was
in custody; (2) whether the arresting officer had his 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 that a
search warrant could be obtained. United States v. Jones, 286
F.3d 1146, 1152 (9th Cir. 2002). All five factors need not be
satisfied in order to sustain a consensual search. United States
v. Cormier, 220 F.3d 1103, 1113 (9th Cir. 2000). Here,
Vongxay was not in custody, and Campos did not have his
gun drawn or exposed when he asked permission to search
Vongxay. Vongxay had not yet been arrested, so the Miranda
warning factor is inapplicable. See United States v. Ritter, 752
F.2d 435, 438 (9th Cir. 1985) (“It would . . . make little sense
to require that Miranda warnings . . . be given by police
before requesting consent.”). Vongxay was not told that a
search warrant could be obtained. Thus, the only Jones factor
not satisfied here is that Vongxay was not notified of his right
to decline consent.6
[9] Further, Campos’s conduct would not have “communi-
cated to a reasonable person that he was not at liberty to
ignore the police presence and go about his business.” Michi-
gan v. Chesternut, 486 U.S. 567, 569 (1988). Vongxay will-
ingly lifted his arms, so as to enable a search, in response to
Campos’s request for permission to search him. Given the
facts surrounding the search, Vongxay’s attempt to pull away
after the gun was found is better understood as a flight
6
An officer is not required to inform the person being searched that he
has a right to refuse consent; doing so simply weighs in favor of finding
consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 226-27(1973).
2362 UNITED STATES v. VONGXAY
response than as evidence that he had not consented in the
first place.
[10] The district court found that Vongxay’s act of raising
his hands to his head constituted implied consent to search. It
also found that “[t]here were no threats, coercion or other-
wise.” Considering the totality of the circumstances, we do
not find that the district court’s finding of consent was clearly
erroneous. We therefore affirm the denial of Vongxay’s
motion to suppress.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
denial of Vongxay’s motion to dismiss and AFFIRM the
denial of Vongxay’s motion to suppress.