Appeal from the United States District Court for the District of Arizona. D.C. No. CR-93-00336-JMR. John M. Roll, District Judge, Presiding. John C. Coughenour, District Judge, Presiding.
Before: William C. Canby and Ferdinand F. Fernandez, Circuit Judges, and James M. Fitzgerald,*fn* District Judge. Opinion by Judge Fernandez.
FERNANDEZ, Circuit Judge:
Francisco Leon-Yanez conditionally pled guilty to conspiracy and to possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846. Laura Michelle Morning conditionally pled guilty to misprision of Leon-Yanez's possession with intent to distribute felony. 18 U.S.C. § 4. Both reserved the claim that evidence should have been suppressed because it was seized without a warrant and without consent. Both now appeal on that ground, and Morning also asserts that a prior conviction was improperly used in setting her criminal history score under the United States Sentencing Guidelines. We affirm.
In June of 1993, federal agents received information from a confidential source that a man named "Pancho" and a woman had marijuana at a particular residence. Border Patrol Agent Salim Dominguez and DEA Special Agent Mike Groseclose approached the front door of the residence and knocked. Morning answered the door. Agent Dominguez informed her that he and the other agents were conducting a narcotics investigation and suspected that there may be narcotics on the premises. He also asked Morning for permission to search the residence, but Morning replied that she would rather have the agents obtain a search warrant. Dominguez then asked Morning if there was anybody else living in the house, and she told them that Pancho lived there. She then left to summon Leon-Yanez, and after a short time he came to the door. Dominguez told him that he was conducting a narcotics investigation, and Leon-Yanez, before he was even asked for his name, said "It's in the back there, but it's not mine." Dominguez then asked him for permission to search the premises, and he gave oral and written consent. When the agents entered, Morning said nothing further about their presence. The agents found approximately 226 pounds of marijuana in the house's one bedroom, the refrigerator, and the house's one bathroom. It turned out that Leon-Yanez had provided for its storage there.
Both appellants moved to suppress evidence of the search because there was no warrant and no valid consent, but their motions were denied.*fn1 They then pled guilty and reserved the suppression issues. Sentencing followed and the district court determined that Morning's criminal history category was II.*fn2 Morning complained that it should be lower because her collateral attack on a prior conviction should have been sustained. The district court disagreed. Both Leon-Yanez and Morning now appeal.
JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. §§ 1291 and 3742(a).
"In general, we review determinations of motions to suppress de novo." United States v. Becker, 23 F.3d 1537, 1539 (9th Cir. 1994). However, we review the trial court's factual findings for clear error. Id. The voluntariness of a consent to search is a factual question which is determined "by considering the totality of the surrounding circumstances." United States v. Kelley, 953 F.2d 562, 566 (9th Cir. 1992). We review the district court's determination of that question for clear error. Id.
We review applications of the Sentencing Guidelines de novo. See United States v. Buenrostro-Torres, 24 F.3d 1173, 1174 (9th Cir. 1994) (per curiam).
The principal issues in this case revolve around the search which uncovered the large cache of marijuana. Leon-Yanez consented to that search, but it is now claimed that his consent was not voluntarily given. Were that true, suppression of the evidence would result, and both he and Morning would benefit. Morning adds that even if Leon-Yanez did consent, she expressly did not. That, she argues, means that the evidence must be suppressed as to her in any event. Because the threshold issue is the validity of Leon-Yanez's consent, we address that first and take up Morning's separate issue second.
A. Voluntary Consent by Leon-Yanez.
When Leon-Yanez was first addressed by the officers, he immediately blurted out the fact that there was marijuana stored in the house. When the officers then asked if they could look, he said that they could. He also signed a written consent form, in which he indicated that he freely consented and had not been threatened or forced in any way. Now, however, he claims that his consent to the search was not effective because it was not voluntarily given.
That is a question of fact, and its resolution depends on the totality of the circumstances. See United States v. Castillo, 866 F.2d 1071, 1082 ...