United States v. McWeeney ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10349
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00195-PMP
NICHOLAS J. MCWEENEY,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted
April 6, 2006—San Francisco, California
Filed July 21, 2006
Before: Alfred T. Goodwin, Betty B. Fletcher, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Goodwin;
Dissent by Judge B. Fletcher
8101
8104 UNITED STATES v. MCWEENEY
COUNSEL
Jason Carr, Assistant Federal Public Defender, Las Vegas,
Nevada, for the defendant-appellant.
Brian Quarles, Assistant United States Attorney, Las Vegas,
Nevada, for the plaintiff-appellee.
OPINION
GOODWIN, Circuit Judge:
Nicholas J. McWeeney appeals his conviction for violating
18 U.S.C. §§ 922(g)(1), 924(a)(2) (being a felon in possession
UNITED STATES v. MCWEENEY 8105
of a firearm). He assigns error to the denial of his motion to
suppress. Because the district court did not make a finding
with respect to coercion, we vacate the judgment of convic-
tion and remand the case to the district court with instructions
to conduct an evidentiary hearing consistent with this opinion.
I. Factual and Procedural Background
On December 2, 2002, Officer Andrew Walsh of the Las
Vegas Metropolitan Police department noticed a white Pon-
tiac Sunfire with no front license plate. Officer Walsh
observed the rear license plate and checked it against the state
computer, which indicated that the Sunfire had previously
been stolen and returned to the owner. His suspicion aroused,
Officer Walsh stopped the car, obtained identification from
the occupants and determined that the driver was Jesus Lopez
and the passenger was McWeeney.
The car was registered to McWeeney’s mother. McWeeney
told Officer Walsh that he was using the car with his mother’s
permission and that he allowed Lopez to drive because he was
tired. Officer Walsh then asked McWeeney and Lopez if they
were in possession of anything that “they were not supposed
to have.” McWeeney and Lopez responded in the negative.
Officer Walsh also asked if they “mind[ed] if [he] looked” in
the car. McWeeney and Lopez orally consented to Officer
Walsh’s request. The government does not dispute that this
consent provided the sole authority for the government to
search McWeeney’s car.
Officer Walsh then returned to his patrol car and ran back-
ground checks on McWeeney and Lopez. The background
checks revealed that McWeeney was a convicted felon and
that Lopez had a previous weapons-related arrest. Officer
Walsh called for backup and waited for it to arrive before pro-
ceeding. Seven minutes later, Officers Martin and Howard
arrived on the scene.
8106 UNITED STATES v. MCWEENEY
Officer Walsh relayed all relevant information to Officers
Martin and Howard, including that McWeeney and Lopez had
consented to the search of the car. Officer Walsh then
approached the Sunfire and reminded McWeeney that he was
going to look in the car, stating “if you have nothing that you
aren’t supposed to have, I’m going to take a look.”
McWeeney and Lopez were asked to exit the Sunfire and
stand facing the front of Officer Walsh’s patrol car.
Officer Howard, relying on Officer Walsh’s statement
regarding McWeeney and Lopez’s consent, searched the Sun-
fire. After finding nothing in the passenger compartment,
Officer Howard opened the trunk. Officer Howard noticed
that the trunk’s carpet lining was loose, pulled the carpet
back, and found the handgun that is the subject of this case.
Neither McWeeney nor Lopez was allowed to observe the
search. At one point during the search, Officer Howard
noticed that either McWeeney or Lopez “was looking back”
at him as he searched the Sunfire, and either he or Officer
Martin instructed that person “to face forward and stop look-
ing back.” Officer Howard could not remember which of the
two men he told to turn around. After the handgun was found,
the officers handcuffed McWeeney and Lopez and placed
them in separate patrol cars. Officer Walsh then called for the
firearms unit. Approximately two hours after the stop,
McWeeney was charged with being a felon in possession of
a firearm.
Initially, McWeeney filed a motion to suppress the firearm
as the fruit of an illegal search.1 United States Magistrate
Judge Lawrence Leavitt held an evidentiary hearing to assess
McWeeney’s motion and recommended that McWeeney’s
1
McWeeney’s suppression motion also sought to suppress statements
obtained from him without a Miranda warning. However, because that
issue was not preserved, we discuss the suppression motion only as it
relates to the firearm.
UNITED STATES v. MCWEENEY 8107
suppression motion be denied. United States District Judge
David W. Hagen adopted this recommendation and denied the
motion. McWeeney then pled guilty to one count of being a
felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), but reserved the right to appeal the
denial of his motion to suppress.
McWeeney, free on a personal recognizance bond until his
sentencing scheduled for September 13, 2004, absconded and
did not appear for sentencing. He did not appear again until
his pretrial release violation hearing on April 11, 2005.
McWeeney’s sentencing was rescheduled for May 4, 2005. In
the interval between McWeeney’s suppression motion and his
sentencing, Judge Hagen retired and McWeeney’s case was
reassigned to Chief United States District Judge Philip M.
Pro. On May 11, 2005, Chief Judge Pro sentenced McWeeney
to fifty-one months imprisonment and three years of super-
vised release. Shortly thereafter, McWeeney filed this appeal,
arguing that his Fourth Amendment rights were violated by
the search.
II. Standard of Review
We review de novo the district court’s denial of
McWeeney’s motion to suppress. United States v. Crawford,
372 F.3d 1048, 1053 (9th Cir. 2004) (en banc). Factual find-
ings underlying the denial of the motion are reviewed for
clear error. United States v. Bynum, 362 F.3d 574, 578 (9th
Cir. 2004).
III. Analysis
[1] Reasonableness is the foundation of Fourth Amendment
jurisprudence. Florida v. Jimeno, 500 U.S. 248, 250 (1991)
(citing Katz v. United States, 389 U.S. 347, 360 (1967)). “The
Fourth Amendment does not proscribe all state-initiated
searches and seizures; it merely proscribes those which are
unreasonable.” Id. (citing Illinois v. Rodriguez, 497 U.S. 177
8108 UNITED STATES v. MCWEENEY
(1990)). Consensual searches are allowed because it is reason-
able for law enforcement agents to conduct a search after
receiving consent. Id. at 250-51. A suspect is free, however,
after initially giving consent, to delimit or withdraw his or her
consent at anytime. See id. at 252 (“A suspect may of course
delimit as he chooses the scope of the search to which he con-
sents.”); United States v. Ward, 576 F.2d 243, 244 (9th Cir.
1978) (“[S]ince [appellee’s] action was unilateral and con-
tained no agreement as to duration it was implicitly limited by
[appellee’s] right to withdraw his consent.” (quoting Mason v.
Pulliam, 557 F.2d 426, 429 (5th Cir. 1977))).
[2] It is a violation of a suspect’s Fourth Amendment rights
for a consensual search to exceed the scope of the consent
given. See Jimeno, 500 U.S. at 252. “The standard for mea-
suring the scope of a suspect’s consent under the Fourth
Amendment is that of ‘objective’ reasonableness — what
would the typical reasonable person have understood by the
exchange between the officer and the suspect?” Id. at 251 (cit-
ing Rodriguez, 497 U.S. at 183-89).
In this case, McWeeney first argues that the reasonable per-
son would not have understood Officer Walsh’s request to
“look” in the car to include searching the trunk and lifting the
loose carpet liner. According to McWeeney, the verb “look”
only connotes a cursory scan of the car and does not include
a search. Following this line of reasoning, McWeeney claims
that by searching the trunk and lifting the loose carpet lining,
Officer Howard exceeded the scope of McWeeney’s lesser
consent, which only allowed the officers to quickly glance in
the car. McWeeney also argues that his Fourth Amendment
rights were violated because he and Lopez were deliberately
prevented from observing the search and, thus, could not
meaningfully exercise their constitutional right to withdraw
consent if any of the officers’ actions exceeded the scope of
consent given.
[3] The first of McWeeney’s arguments is easily disposed
of and we write simply to clarify the rule in this Circuit, that
UNITED STATES v. MCWEENEY 8109
a request from a law enforcement agent to “look,” in the
proper context, is the same as a request to “search.” We have
previously held that an officer does not exceed the scope of
a suspect’s consent by “searching” when the officer asked
only if he or she could “look.” See United States v. Sparks,
87 F.3d 276, 277 (9th Cir. 1996) (“[The officer] asked him if
it would be okay to look in the trunk because that’s where the
citizen said Sparks had put the shotgun. According to [the
officer], Sparks said that would be fine . . . .” (emphasis
added)); see also United States v. Sierra-Hernandez, 581 F.2d
760, 764 (9th Cir. 1978) (holding a search reasonable when
“one of the agents asked the appellant, ‘May I look inside the
truck?’ The answer [being] affirmative . . . the agent looked
not only in the cab of the truck but also in the back cargo por-
tion, and finally under the hood” (emphasis added)).
[4] Officer Howard did not exceed the scope of
McWeeney’s general consent by searching the trunk. See
United States v. Gutierrez-Mederos, 965 F.2d 800, 803-04
(9th Cir. 1992). In Gutierrez-Mederos, the officer asked
Gutierrez-Mederos if he could “check” for weapons and nar-
cotics. Id. at 803. Gutierrez-Mederos replied, “go ahead,”
placing no restrictions on the search. Id. at 803-04. “This gen-
eral statement authorized the trooper to search any container
within the car that reasonably could contain contraband.” Id.
at 804. Similarly, we have previously held that such general
consent can include consent to search a car’s trunk. See
United States v. Cannon, 29 F.3d 472, 477 (9th Cir. 1994)
(“Although a suspect’s consent to search a car may not auto-
matically include consent to search the trunk, in the present
case, the district court did not clearly err in finding that Can-
non’s consent included the trunk.”).
[5] Here, Officer Walsh asked if he could “look” for any-
thing that McWeeney and Lopez were “not supposed to
have.” “The scope of a search is generally defined by its
expressed object,” Jimeno, 500 U.S. at 251, and one can rea-
sonably assume, as the magistrate judge found a reasonable
8110 UNITED STATES v. MCWEENEY
person would, that Officer Walsh’s request here concerned a
search for weapons and narcotics. Therefore, realizing that
Officer Howard was looking for weapons and narcotics, the
reasonable person would expect him to search the trunk and
look under loose carpet. See id. (“Contraband goods rarely are
strewn across the trunk or floor of a car.” (quoting United
States v. Ross, 456 U.S. 798, 820 (1982))); see also Gutierrez-
Mederos, 965 F.2d at 804 (holding the manner of a search is
reasonable when “[t]he record indicate[d] that [the officer] did
not pry open or break into the side panel . . . [n]or . . . force
the loose cardboard divider apart, but rather pulled it back”).
[6] No doubt McWeeney and Lopez gave general consent
to search the car. However, they had a constitutional right to
modify or withdraw their general consent at anytime, includ-
ing the point at which the officers prevented them from
observing the search. It is possible, however, that the officers
in this case improperly coerced McWeeney and Lopez into
believing that they had no right to withdraw or limit their con-
sent.
In the seminal case applying the exclusionary rule to evi-
dence seized by a state in violation of the Fourth Amendment,
the Supreme Court wrote
If letters and private documents can thus be seized
and held and used in evidence against a citizen
accused of an offense, the protection of the Fourth
Amendment declaring his right to be secure against
such searches and seizures is of no value, and, so far
as those thus placed are concerned, might as well be
stricken from the Constitution. The efforts of the
courts and their officials to bring the guilty to pun-
ishment, praiseworthy as they are, are not to be aided
by the sacrifice of those great principles established
by years of endeavor and suffering which have
resulted in their embodiment in the fundamental law
of the land.
UNITED STATES v. MCWEENEY 8111
Mapp v. Ohio, 367 U.S. 643, 648 (1961) (quoting Weeks v.
United States, 232 U.S. 383, 393 (1914)). Just as the Fourth
Amendment would be valueless without the use of the exclu-
sionary rule, so too would the right to withdraw consent be
valueless if law enforcement officers are permitted deliber-
ately to coerce a citizen into believing that he or she had no
authority to enforce that right.
[7] By turning around to view the search, McWeeney and
Lopez implicitly made clear their desire to determine whether
the search comported with the consent they had given. Per-
haps it is true, as the government argues, that when the offi-
cers prevented them from turning around, McWeeney and
Lopez should have realized that the search exceeded the scope
of their consent and immediately withdrawn it. The govern-
ment would like us to hold that, by failing to withdraw con-
sent when they were asked to turn around, McWeeney and
Lopez implicitly consented to the search. This we will not do.
[8] As the government readily admitted at oral argument,
prior to finding the handgun, the officers had no probable
cause to handcuff McWeeney and Lopez and no probable
cause to require that they sit in the back of a patrol car.
Rather, the officers were relying on McWeeney and Lopez’s
consent, as free citizens, to aid in the officers’ law enforce-
ment duties. Consensual searches are vital to law enforcement
efforts because they “may be the only means of obtaining
important and reliable evidence” and “may result in consider-
ably less inconvenience for the subject of the search.” Schnec-
kloth v. Bustamonte, 412 U.S. 218, 227-28 (1973).
[9] At no time during their encounter with the officers were
McWeeney and Lopez under a duty to submit to a search.
Rather, at all times the conditions of the search, or whether
there was to be any search at all, remained exclusively in
McWeeney and Lopez’s control. “[T]he Fourth Amend-
ment[ ] stands as a protection of . . . values reflecting the con-
cern of our society for the right of each individual to be let
8112 UNITED STATES v. MCWEENEY
alone. To recognize this is no more than to accord those val-
ues undiluted respect.” Tehan v. United States ex rel. Shott,
382 U.S. 406, 416 (1966).
[10] However, when McWeeney or Lopez turned around to
watch the search, they may have been asserting their right to
delimit or withdraw their consent and coercively not been per-
mitted to do so when instructed by the officers to turn back
around. It is unclear whether the general atmosphere, or the
officers’ decision to prevent the observation of the search,
was coercive. The district court made no finding with respect
to coercion and there is nothing in the record which conclu-
sively establishes that the officers’ actions created a coercive
atmosphere. Coercion, however, is the linchpin in this case.
Absent coercion, McWeeney and Lopez simply failed to exer-
cise their right to withdraw consent and the search was
entirely proper. On the other hand, if the officers did coerce
McWeeney and Lopez into believing that they had no author-
ity to withdraw their consent, the officers violated McWeeney
and Lopez’s Fourth Amendment rights and the search was
illegal.
[11] Whether or not McWeeney and Lopez were coerced
into believing that they had no authority to withdraw their
consent is a question of fact and must be decided by the dis-
trict court in the first instance.2 The inquiry is essentially iden-
tical to the one required of the district court in assessing a
2
The dissent misconstrues why there is a need for additional facts with
respect to coercion. We do not hold that there is a constitutional right to
observe a search, but rather that there is a constitutional right to withdraw
consent once it is given. Thus, the question is not whether McWeeney or
Lopez was prevented from observing the search or “determining what was
going on,” as the dissent believes, but instead whether the atmosphere in
toto was coercive to such an extent that they were prevented from with-
drawing their consent. As there is no constitutional right to observe a
search, we are not convinced, without more evidence, that the officers’
conduct amounted to a constitutional violation. The district court is in the
best position to gather this additional evidence and to make the initial
determination of whether the atmosphere was unconstitutionally coercive
with respect to withdrawing consent.
UNITED STATES v. MCWEENEY 8113
Fourth Amendment seizure question. We thus adopt the rea-
soning used in Fourth Amendment seizure cases and hold that
the district court must determine whether the officers created
a setting in which the reasonable person would believe that he
or she had no authority to limit or withdraw their consent. Cf.
United States v. Washington, 387 F.3d 1060, 1068 (9th Cir.
2004) (holding that a seizure occurs when, “taking into
account all of the circumstances surrounding the encounter,
the police conduct would have communicated to a reasonable
person that he was not at liberty to ignore the police presence
and go about his business” (quoting Florida v. Bostick, 501
U.S. 429, 437 (1991)) (internal quotation marks omitted)); see
also Bostick, 501 U.S. at 436 (holding that where the “free to
leave” analysis is inapplicable to decide whether a seizure
occurred, “the appropriate inquiry is whether a reasonable
person would feel free to decline the officers’ requests or oth-
erwise terminate the encounter”).3
Under this analysis, the district court must determine
whether the officers’ conduct is objectively recognizable as
intimidation directed mostly (or exclusively) at coercing
McWeeney and Lopez into believing that they had no right to
withdraw or delimit their consent once it was given, and
whether a reasonable person faced with the officers’ conduct
would have believed that no such right existed. The non-
exhaustive list of objective factors the district court should
consider includes: (1) the language used to instruct the sus-
pect; (2) the physical surroundings of the search; (3) the
extent to which there were legitimate reasons for the officers
to preclude the suspect from observing the search; (4) the
relationship between the means used to prevent observation of
the search and the reasons justifying the prevention; (5) the
3
We use a similar approach under the Fifth Amendment to determine
whether an individual was in custody and therefore entitled to a Miranda
warning. See United States v. Kim, 292 F.3d 969, 973-74 (9th Cir. 2002)
(holding that an individual is in custody when “the officers establish[ ] a
setting from which a reasonable person would believe that he or she was
not free to leave”).
8114 UNITED STATES v. MCWEENEY
existence of any changes in circumstances between when con-
sent is obtained and when the officers prevent the suspect
from observing the search; and (6) the degree of pressure
applied to prevent the suspect either from observing the
search or voicing his objection to its proceeding further.4 Cf.
Orhorhaghe v. INS, 38 F.3d 488, 494-96 (9th Cir. 1994)
(identifying five objective factors that aid in determining
whether a reasonable person would have felt “at liberty to
ignore the police presence and go about his business”); Kim,
292 F.3d at 974 (listing several objective factors that are
“likely to be relevant to deciding” whether an interrogation
turned custodial). Once the coercion question has been
answered, the district court should determine whether the
search in this case violated McWeeney’s Fourth Amendment
rights, and if so, whether the violation justifies suppression of
the evidence.
IV. Conclusion
[12] Although the district court did not err in finding that
a request to “look” in the car, in context, was the same as a
request to “search” the car, it is not clear whether the officers
coerced McWeeney and Lopez into believing that they had no
right to withdraw their consent. The district court must answer
this question. We therefore VACATE the judgment of convic-
tion and REMAND the case to the district court for an eviden-
tiary hearing, consistent with this opinion, in order to
determine whether McWeeney and Lopez were coerced into
believing that they had no authority to withdraw their consent.
If the district court finds they were coerced, then
McWeeney’s conviction cannot stand.
VACATED AND REMANDED.
4
The sixth consideration is best expressed in Washington as looking to
see “whether the officer’s officious or authoritative manner would imply
that compliance would be compelled.” 387 F.3d at 1068.
UNITED STATES v. MCWEENEY 8115
B. FLETCHER, Circuit Judge, dissenting in part:
I concur in the majority opinion in all respects except I dis-
sent from the need for remand to determine whether coercion
prevented McWeeney from exercising his right to withdraw
his consent. McWeeney and Lopez were told by uniformed
officers to face away from the car so that they could not see
the search. When one of them peeked over his shoulder he
was told in no uncertain terms to turn back. What more “coer-
cion” was needed to prevent them from determining what was
going on? To require the district court to consider a laundry
list of factors is nonsensical. Any reasonable person would
recognize that two punk kids ordered out of their car, by
police officers, told to turn their backs while their car is
searched are afraid to disobey authority. Accordingly I dissent
from the remand.