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United States v. Warwick

United States Court of Appeals, Tenth Circuit

June 28, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
WILLIAM DOUGLAS WARWICK, Defendant-Appellant.

          Appeal From the United States District Court for the District of New Mexico (D.C. NO. 1:16-CR-04572-WJ-1).

          Jerry A. Walz, Walz and Associates, P.C., Albuquerque, New Mexico, for Appellant.

          Thomas J. Aliberti, Assistant United States Attorney (John C. Anderson, United States Attorney, with him on the brief), Office of the United States Attorney, Albuquerque, New Mexico, for Appellee.

          Before TYMKOVICH, Chief Judge, BALDOCK, and CARSON, Circuit Judges.

          Tymkovich, Chief Judge.

         This appeal arises from a home search that led to the discovery of firearms possessed by William Warwick. After obtaining his oral consent, law enforcement officials executed a search of Warwick's home, looking for a potentially dangerous fugitive. The officers found the fugitive hiding in a closet, and noticed several firearms as well. Warwick claimed the weapons as his own, and, after the officers learned he had a previous felony conviction, they asked him a second time for consent to search the house-this time to secure the firearms. Warwick signed a consent form, and agents discovered ammunition and illegal drugs in addition to the guns.

         Warwick was charged with unlawful possession of firearms and drugs. Before the district court he argued the evidence was illegally obtained, claiming he never gave oral consent and that his written consent was not voluntary. The district court denied his motion to suppress the evidence, finding he gave valid consent to the searches. We AFFIRM.

         I. Background

         Nine law enforcement agents approached Warwick's residence on the morning of August 3, 2016 to execute an arrest warrant for a gang-affiliated fugitive wanted for murder. FBI agents had received a tip that the fugitive was staying at Warwick's trailer. At approximately 11:40 AM, the agents parked two cars in front of the property and one in the back. Several agents drew their firearms, including one agent who stood beside a vehicle and trained his firearm on the windows above the front door while another officer knocked.

         Warwick answered the knock and stepped outside. The officer at the door asked if someone named "Shauna" was there and Warwick said no.[1] Officer testimony indicated Warwick granted oral permission to search the residence at the agent's request. According to Warwick, however, the agents entered his residence from the rear while he was talking with the officer at the front door, and he did not grant oral consent to the search. The district court deemed Warwick's contrary testimony not credible, finding Warwick consented to entry and that no officer entered the residence prior to his consent.

         Agents searched the residence for the fugitive and discovered her in a bedroom closet. While securing her, an officer observed two firearms in plain view in the closet. Officers continued a protective search of the residence in places where a person could hide, out of concern that other gang members might be hiding.

         Meanwhile, an officer remained outside with Warwick. Their conversation was casual and friendly. Warwick was not permitted to enter the residence while the officers searched for the fugitive. Nevertheless, Warwick could move about the outside area. After the fugitive was taken into custody, another agent introduced himself to Warwick, explained the charges against the fugitive, showed him the wanted poster, and told him agents had seen firearms in the closet where she was found. Warwick said he did not know the fugitive's true identity. He also volunteered that the firearms in the closet were his and offered his opinions on the Second Amendment. In total, Warwick was loosely monitored for approximately thirty-five minutes.

         After the discussion, an officer ran Warwick's criminal history and determined he had been convicted of a felony. Warwick was then asked to sign a consent-to-search form authorizing a full search of the residence. The form read:

         CONSENT TO SEARCH

1. I have been asked by Special Agents of the Federal Bureau of Investigation to permit a complete search ...

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