United States v. Spence, 397 F.3d 1280, 10th Cir. (2005)
United States v. Spence, 397 F.3d 1280, 10th Cir. (2005)
PUBLISH
FEB 15 2005
PATRICK FISHER
Clerk
No. 04-6118
BRUCE R. SPENCE,
Defendant-Appellant.
I.
INTRODUCTION
Bruce R. Spence was charged in the Western District of Oklahoma with
BACKGROUND
The evidence presented at the hearing on the motion to suppress showed
that Russian law enforcement officials notified the United States Customs Service
that Spence was one of several Americans who had paid to access Russian-based
web sites featuring child pornography. Responding to this information, three
agents dressed in plain clothes went to Spences home in Oklahoma City to
conduct a knock and talk. Special Agents Paul Masteller and Eric Munson
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. Fed. R. Civ. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,
ordered submitted without oral argument.
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knocked on Spences front door sometime between ten and eleven oclock in the
morning, while Special Agent Bill Davis waited in a vehicle outside. When
Spence answered the door, Masteller and Munson identified themselves as special
agents of the United States Customs Service and asked if they could come inside
to talk. Spence agreed.
The agents informed Spence that his name had been linked to Russian web
sites featuring child pornography. They then asked if they could search his
computer. Spence asked at least twice whether he could decline the search
request, and Munson responded [y]ou have a choice . . . you can say no.
Spence orally agreed and signed a written consent form. Davis then entered the
home to conduct the computer search. While Davis was working on the computer,
Masteller and Munson asked Spence if they could search his residence. Spence
again orally agreed and signed a second written consent form.
The agents seized two CDs containing images of children engaged in
sexually explicit activity. The entire encounter lasted approximately two hours.
The next day, Masteller obtained a search warrant and seized Spences computer
and other evidence.
III.
STANDARD OF REVIEW
In reviewing the denial of a motion to suppress, this court views the
evidence in the light most favorable to the government and accepts the district
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DISCUSSION
The district court concluded that the agents actions did not constitute an
Accordingly, this court will not examine whether the search of Spences
home and computer violated the Fourth Amendment, or whether Spence was
subjected to a custodial interrogation that infringed his rights under the Fifth
Amendment.
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court should have suppressed any evidence obtained as a result of his unlawful
detention. The government does not dispute that the agents had neither probable
cause nor a warrant, but instead asserts that the encounter was consensual and that
Spence was not under arrest at the time.
A consensual encounter is not a seizure for purposes of the Fourth
Amendment. United States v. Gigley, 213 F.3d 509, 514 (10th Cir. 2000). A
seizure occurs only when an officer, by means of physical force or show of
authority, in some way restrains the liberty of a citizen. United States v. Zapata,
997 F.2d 751, 756 (10th Cir. 1993). The Supreme Court in Florida v. Bostick
held that, in order to determine whether a particular encounter constitutes a
seizure, a court must consider all the circumstances surrounding the encounter to
determine whether the police conduct would have communicated to a reasonable
person that the person was not free to decline the officers requests or otherwise
terminate the encounter. 501 U.S. 429, 439 (1991). This court has identified
several factors relevant to this inquiry:
the location of the encounter, particularly whether the defendant is in
an open public place where he is within the view of persons other
than law enforcement officers; whether the officers touch or
physically restrain the defendant; whether the officers are uniformed
or in plain clothes; whether their weapons are displayed; the number,
demeanor and tone of voice of the officers; whether and for how long
the officers retain the defendants personal effects such as tickets or
identification; and whether or not they have specifically advised
defendant at any time that he had the right to terminate the encounter
or refuse consent.
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Zapata, 997 F.2d at 756-57 (quotations, citations, and alteration omitted). The
list of factors is non-exclusive and no one factor is dispositive. Abdenbi, 361
F.3d at 1291. The focus of the test is on the coercive effect of police conduct,
taken as a whole on a reasonable person. United States v. Little, 18 F.3d 1499,
1504 (10th Cir. 1994) (en banc) (quotation omitted).
Spences primary argument is that the encounter took place within his home
and that [t]he highest Fourth Amendment requirements therefore attach.
Although Spence is correct that he had an increased expectation of privacy within
his own home, this privacy expectation has limited relevance to the question of
whether a reasonable person would believe that he or she is unable to terminate
the encounter. Little, 18 F.3d at 1505 (noting that an individuals increased
expectation of privacy is primarily relevant to the question of the reasonableness
of a police search, not to whether an encounter is consensual) (quotation omitted);
see also United States v. Kim, 27 F.3d 947, 953 (3d Cir. 1994) (As far as consent
is concerned, one may consent to an encounter in the privacy of his own home or
in a public square.). This court does consider interaction in a nonpublic
place . . . and the absence of other members of the public as factors pointing
toward a nonconsensual encounter. Sanchez, 89 F.3d at 718. The particular
location of the encounter, however, is only one factor in the totality of the
circumstances test. Little, 18 F.3d at 1503. There is no per se rule that a police
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But cf. United States v. Rogers, 391 F.3d 1165, 1170 (10th Cir. 2004)
(noting that an encounter occurring in the defendants home weighed against a
conclusion that the defendant was in custody for Fifth Amendment purposes).
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CONCLUSION
For the foregoing reasons, the district courts denial of Spences motion to
suppress is AFFIRMED.
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