FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

March 20, 2009

TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 08-5122
Northern District of Oklahoma

JOSE LUIS GONZALEZ-RAMIREZ

a/k/a Jose Ruis Ramirez-Gonzalez,

(D.C. No. 07-CR-134-GKF)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before HARTZ, HOLLOWAY and McCONNELL, Circuit Judges.

On August 1, 2006, two officers from the Tulsa Police Department searched
an apartment belonging to Jose Luis Gonzalez-Ramirez (hereinafter Mr.
Gonzalez). The officers claim that Mr. Gonzalez voluntarily consented to the
search and that he spoke perfect English. Mr. Gonzalez denies that he ever told
the officers that they could either enter or search his home and moved to suppress

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

the evidence uncovered in the search. The district court, at first, sided with Mr.
Gonzalez and said that it did not accept the officers testimony with respect to
the alleged voluntary consent to the warrantless search. The government moved
for reconsideration. Apparently changing his mind, the district judge granted the
motion, credited the testimony of the officer, and denied Mr. Gonzalezs motion
to suppress. Mr. Gonzalez appeals. We affirm the district courts denial of the
motion to suppress.
I. Facts
The two parties in this case give such different versions of the basic facts
as to make it nearly impossible to reconcile them. Instead of trying to give a
composite version, it seems better instead simply to set the two opposing versions
side by side.
A. Officer Wolthuiss Account
According to one of the officers who searched Mr. Gonzalezs apartment,
Officer William Wolthuis, he and his partner, Officer Corbin Collins, went to Mr.
Gonzalezs apartment at 3:00 p.m. on August 1, 2006 to investigat[e] a possible
drug trafficker at that location. Doc. 55 at 18. Officer Wolthuis knocked on the
door, and Mr. Gonzalez answered. Both officers were dressed in plain clothes,
and neither had their guns visible. Officer Wolthuis identified himself and
Officer Collins, showed Mr. Gonzalez his badge, and explained to Mr. Gonzalez
why he was there: they had received information that [Mr. Gonzalez] was selling
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drugs out of the house. Id. at 20. Mr. Gonzalez laughed, and invited [the]
officers in, saying you can come in and look. Im not a drug dealer, I dont sell
drugs, Im a landscaper. Id. Officer Wolthuis was speaking English, and
according to Officer Wolthuis, Mr. Gonzalez spoke perfect English. Id.
Officer Wolthuis entered the house and sat down with Mr. Gonzalez on the
living room couch. He handed Mr. Gonzalez a search waiver and said, Ill read
this to you and then [a]fter I finish reading it could you read it, too. Id. at 22.
He read the waiver aloud to Mr. Gonzalez. Mr. Gonzalez read over Officer
Wolthuiss shoulder as the officer was reading the search waiver to him. After
reading the waiver to Mr. Gonzalez, Officer Wolthuis said to him: Do you
understand what I just read to you? Id. at 23. Mr. Gonzalez replied that he did.
The officer handed the search waiver to Mr. Gonzalez, who appeared to read it.
Id. Mr. Gonzalez signed the waiver and wrote the date and the time. (That Mr.
Gonzalez signed the statement is one part of the record that is undisputed.)
Officer Wolthuis drew his gun and proceeded to clear the hallway, the
three bedrooms, and the bathroom, in case somebody was hiding and lying in
wait. Mr. Gonzalez and Officer Collins remained in the living room chatting.
Id. at 24. Officer Wolthuis then started his search. In the master bedroom
closet, he found a gun and a backpack containing a large sum of money. In the
garage attached to the house, he found four small bricks of marijuana. He put the
evidence in the living room. Mr. Gonzalez said it was not his money, and that it
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came from his cousin. Officer Wolthuis told Mr. Gonzalez something along the
lines of, if he wanted the money back, he was going to have to fight for it,
meaning (according to Officer Wolthuis) that he would have to go[] to court and
get an attorney and fight. Id. at 29.
Officer Wolthuis asked Mr. Gonzalez to write out a statement about the
money. (This is another part of the record that is undisputed.) The statement
read, in full: The money that the police found is not mine. I was keeping it and
the police took it and told me they were going to give it back, and they were
going to fight. My cousin Lico Ramirez is living in Arizona. Gonzalez Aff. at
17. The statement was written in Spanish. By this point, a canine unit had
arrived and began searching Mr. Gonzalezs vehicles. Officer Wolthuis told Mr.
Gonzalez that they were going to have to take the vehicles; Mr. Gonzalez was
not happy with that. Doc. 55 at 32. But up to that point, Mr. Gonzalezs
demeanor was [p]erfect. He joked around with officers, he spoke perfect English
. . . . Id.
B. Mr. Gonzalezs Account
Mr. Gonzalez related his version of events in an affidavit submitted (in
Spanish) to the district court. According to Mr. Gonzalez, Officer Wolthuis
knocked on his door and asked him if he was Jose Gonzalez. As he was
answering yes, another officer emerged from behind Officer Wolthuis. Officer
Wolthuis asked Mr. Gonzalez several questions, rapid-fire, about whether he was
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selling drugs from his house, and if others were involved in selling drugs from his
house. Mr. Gonzalez, because he does not speak the English language very
well, could not understand Officer Wolthuis that well. Gonzalez Aff. at 4. He
had to ask Officer Wolthuis to repeat himself several times. When Mr. Gonzalez
finally understood what the officer was asking, he denied that he sold drugs
from his residence.
Officer Wolthuis then asked Mr. Gonzalez if he could come in and search
his house for drugs. Mr. Gonzalez asked the officer if he had a piece of paper
that said he could come in (meaning a search warrant). Officer Wolthuis
shrugged it off, and told him not to worry because he could get [him] one later.
Id. at 5. The officers walked past Mr. Gonzalez into the living room, and
Officer Wolthuis reached around his waistband and grabbed his handgun. At that
point, Mr. Gonzalez became scared that they were going to hurt him if he did
not cooperate. Id. at 6. Officer Wolthuis told him to sit down, asked him if
anyone else was there, and started shouting this is the Policia. Id. at 7.
Officer Wolthuis began searching the house, and Officer Collins asked Mr.
Gonzalez about the drugs, saying that they were going to find them. Officer
Wolthuis came back into the living room and yelled at Mr. Gonzalez, asking him
to cooperate and tell him where the drugs were. Mr. Gonzalez was (again) scared
that Office Wolthuis was going to hurt him. He told the officer that there was a
gun underneath the mattress in his bedroom. Thirty minutes later, another officer
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came to the residence with a dog. Officer Wolthuis said that the dog would find
any drugs in the residence.
More officers came. Mr. Gonzalez was questioned about the money Officer
Wolthuis had found during his search. Officer Wolthuis also threatened to take
away Mr. Gonzalezs vehicles if he did not tell him the name of his associates.
Finally, Officer Wolthuis gave Mr. Gonzalez a formthe search waiverthat
another officer gave him and told him to sign his name on the line. Id. at 14.
Mr. Gonzalez said he could not read or write English, and that he could not read
the form. Id. Officer Wolthuis replied that Mr. Gonzalez would have to sign the
form if he ever wanted his money and cars back. He signed it, thinking that the
officers would hurt him if he did not sign, and because he wanted the money
back.
Officer Wolthuis then gave Mr. Gonzalez another form and told him to
write out a statement. Officer Wolthuis told him to write exactly what he said,
which was that the money was from his cousin in Arizona, and that he was
keeping it for him. Mr. Gonzalez wrote out his statement (which has been quoted
above); he says in his affidavit, I did not write what he [Officer Wolthuis] told
me to write because his statement was not true. Id. at 17.
C. Procedural History
Mr. Gonzalez was prosecuted in state court based on the fruits of the
August 1, 2006 search. The 2006 state prosecution went to trial before a jury, at
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which Mr. Gonzalez testified. Mr. Gonzalez moved to suppress the fruits of the
August 1, 2006 search, but the state court denied his motion. Doc. 56 at 8.
The jury convicted Mr. Gonzalez on a misdemeanor offense of simple possession.
Federal charges were also brought against Mr. Gonzalez, one count based
on the 2006 search and a second count based on another search conducted in
2007. Mr. Gonzalez duly filed a motion in federal district court to suppress the
results of the August 1, 2006 search. Mr. Gonzalez did not take the stand at the
federal suppression hearing, instead submitting an affidavit. Officer Collins also
did not testify.
The district court, at first, granted Mr. Gonzalezs motion to suppress. In
its oral findings, the court said that [t]he difficulty . . . presented and repeated
over and over is highlighted by the language problem. Doc. 50 at 2. The district
court was not convinced under the totality of the circumstances presented to [the
court], and particularly taking note of the contemporaneous statement in Spanish
[the affidavit] by the defendant here, that defendants consent was voluntary. Id.
The court noted in its oral findings that it was not attacking or making this
decision on the basis that Officer Wolthuis statements . . . are not credible, but
rather that given the imperfect communication between the officer and Mr.
Gonzalez, it could not find that Mr. Gonzalezs consent was voluntary. Id.
The district court also issued a written order concluding that the
defendants consent to the warrantless search of defendants residence on August
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1, 2006, was not voluntary. Dist. Ct. Order at 1. It also said, in a statement
seemingly at odds with the oral findings, that [i]n addition to the statements the
Court made on the record, this Court does not accept the officers testimony with
respect to the alleged voluntary consent to the warrantless search. Id. Whereas
the oral findings were agnostic on the subject of Officer Wolthuiss credibility,
the written order flatly said that the court did not accept the officers testimony
as to the voluntariness of the search.
The government moved for the district court to reconsider its decision. The
motion stated that [i]f given the opportunity to submit additional evidence to the
Court, the United States will clearly establish that defendants waiver was
voluntarily and knowingly given; that the defendant did know enough English to
waive his rights and give a consent to search. Mot. at 3. It proffered the
testimony of Officer Collins, who accompanied Officer Wolthuis. The proffer
said, in part, that Officer Collins spoke to Mr. Gonzalez in English for thirty
minutes to an hour and that [h]e remembers Officer Wolthuis explaining the
[search] waiver to Mr. Gonzalez. Id. at 4. The motion emphasized that the
only evidence presented at the suppression hearing is the testimony of Officer
Wolthuis and the defendants statement made at the time of the search and written
in Spanish. Id. at 6. The governments motion ended by quoting extensively
from the state courts ruling denying Mr. Gonzalezs motion to suppress.

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Mr. Gonzalez vigorously objected to the governments motion. He said

that motions to reconsider should be reserved for truly extraordinary situations
and that the government offered no new evidence in its motion. Resp. Mot. at
12. He noted that Officer Collins did not testify at the suppression hearing, but
that he could have, and that the government had access to the state court
transcripts. He also argued that Officer Collinss testimony was not as useful as
the government made it out to be. Officer Collins had testified that he did not
remember whether Officer Wolthuis read the search waiver to Mr.
Gonzalezsomething Officer Wolthuis testified that he certainly did do. Id. at 7.
The motion concluded, Everything that the Government now wants to use to get
this Court to reverse itself was available the first time around and the Government
chose not to use iteither through negligence or because it didnt help. Id. at
11.
The district court granted the governments motion to reconsider, reversing
its decision to suppress the fruits of the August 1, 2006 search. The district court
said that it had previously given too much weight to Mr. Gonzalezs affidavit.
Dist. Ct. April 4 Order at 2. It noted that Mr. Gonzalez did not take the stand at
the suppression hearing and that his statements in the affidavit were therefore
not subject to cross examination. Id. It went on to summarize Officer
Wolthuiss testimony: he had testified that Mr. Gonzalez spoke perfect English,
that he read the search waiver to Mr. Gonzalez, that Mr. Gonzalez said that he
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understood the waiver, that Mr. Gonzalez never said he did not understand
English, and that the search waiver was signed and dated by Mr. Gonzalez. Id.
The district court found that the written statement made by Mr. Gonzalez merely
suggests that the defendant could not write English well. Id. Even if it were to
suggest that the defendant cannot read English well, the court continued,
Officer Wolthuis testified under oath that he read the search waiver to [Mr.
Gonzalez] and that the defendant spoke English perfectly. Id. at 23. The
district judge went out of his way to insist that in reaching this decision, he did
not rely upon or consider the testimony from other proceedings, such as the
state court trial of Mr. Gonzalez, or proffers of testimony contained in the
governments motion to reconsider. Id. at 3.
Mr. Gonzalez appeals the denial of the motion to suppress.
II. Discussion
A. Standard of Review
When reviewing a denial of a motion to suppress, we review the court's
factual findings for clear error and view the evidence in the light most favorable
to the government. United States v. Worthon, 520 F.3d 1173, 1178 (10th Cir.
2008). Although the reasonableness of a search is a question of law reviewable
de novo, United States v. Abdenbi, 361 F.3d 1282, 1287 (10th Cir. 2004), the
question of whether consent was voluntarily given is a factual question to be
determined from all the circumstances. Id. We are mindful that at a hearing on
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a motion to suppress, the credibility of the witnesses and the weight given to the
evidence, as well as the inferences and conclusions drawn therefrom, are matters
for the trial judge. United States v. Fernandez, 18 F.3d 874, 876 (10th Cir.
1993).
The police testified to facts indicating that Mr. Gonzalezs consent was
voluntary, and the district court eventually agreed, crediting the testimony of
Officer Wolthuis. Consent, freely and knowingly given, is one . . . exception to
the warrant requirement. United States v. Gaviria, 775 F. Supp. 495, 497 (D.R.I.
1991); see also Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Voluntary
consent requires an intellectual understanding of exactly what is being requested
and a voluntary acquiescence in light of that understanding. United States v.
DAllerman, 712 F.2d 100, 104 (5th Cir. 1983). Where the government attempts
to justify a warrantless search on the basis of consent, the Fourth and Fourteenth
Amendments of the Constitution clearly require that the consent be freely given
and is not the result of duress or coercion, either express or implied. United
States v. Twomey, 884 F.2d 46, 50 (1st Cir. 1989).
Mr. Gonzalez says he did not voluntarily consent, and lists several factors
which, he says, show that he could not have felt free to terminate his encounter
with the officers and go about his business. We face the same problem with all of
the factors Mr. Gonzalez lists: Mr. Gonzalez relied on one version of the facts,

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while the district court ultimately credited another. We review the district courts
factual determinations for clear error. Finding none, we affirm.
B. Language
The question of whether Mr. Gonzalez understood what was going on is of
foremost importance in this case. Mr. Gonzalez said that he had a hard time
understanding Officer Wolthuis and his rapid-fire questioning; he also denied he
could read English. More worrisome, there is at least some uncertainty as to
whether Officer Wolthuis read word for word the contents of the search waiver
to Mr. Gonzalez. Doc. 57-2 at 2. The district courts wavering on the issue only
serves to highlight its centrality.
Mr. Gonzalez says that the obviously imperfect communication between
him and Officer Wolthuis vitiates his consent, and repeatedly cites to and quotes
from United States v. Gaviria. The facts of that case are distinguishable. Gaviria
indicated he did not speak English as soon as the officers started to question him.
Gaviria, 775 F. Supp. at 496. There was also no consent form signed by Gaviria,
something the Gaviria court highlighted as a key factor in its decision to find no
voluntary consent. Id. at 500. By contrast, in this case the district court relied on
Officer Wolthuiss testimony that Mr. Gonzalez spoke perfect English, that Mr.
Gonzalez said he understood what was read to him (i.e., the consent form), and
that Mr. Gonzalez never said that he did not understand English. Dist. Ct. April 4
Order at 2. Although we do acknowledge that the district court seemed to change
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its mind about the credibility of Officer Wolthuis, the final order from which this
case is an appeal found his testimony made under oath to be believable. Id. at
3. On the record before us, and deferring to the district courts evaluation of
witness credibility as we must, United States v. Andrus, 483 F.3d 711, 721 n.7
(10th Cir. 2007), we cannot say that there was anything clearly erroneous in the
district courts crediting of the officers testimony.
The Gaviria court, moreover, distinguished the facts of its case from one
that is very close to ours: United States v. Alvarado, 898 F.2d 987 (5th Cir. 1990).
In that case, the Fifth Circuit said: in regard to Spanish speaking defendants,
where there is sufficient conversation between the suspect and law enforcement
officers to demonstrate that the suspect had an adequate understanding of English
to fully comprehend the situation, a finding that consent was voluntary may be
proper. Id. at 991. The testimony of Officer Wolthuis seems to demonstrate that
Mr. Gonzalez comprehended the situation. The defendant in Alvarado also signed
a consent form, which was read to him in English. Id. at 989. The court held he
had consented. In this case, we also have a signed consent form from Mr.
Gonzalez. Both of these facts work against Mr. Gonzalez, and show that he could
have fully comprehend[ed] the situation. Id. at 991.
If we were in the place of the district court, we might have decided
differently. But that is not our charge. Given the deference we owe to the district
court, and finding no clear error, we affirm on this point.
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C. Other Factors
1. Right to refuse.
It is not clear whether Officer Wolthuis told Mr. Gonzalez that he had the
option to refuse the search. Doc. 55 at 5960, 77. Officer Wolthuis said he did
not consider it necessary to put in his police report that he told Mr. Gonzalez he
had the option not to allow officers to search, because Mr. Gonzalez had
already given consent. Id. at 77. However, Officer Wolthuis did testify that he
read the search waiver form to Mr. Gonzalez, and that Mr. Gonzalez said that he
understood what was read to him. The search waiver says, in its very first
sentence, that [h]aving been informed of my Constitutional right not to have a
search made of the premises mentioned without a search warrant being issued,
and of my right to refuse to consent to such a search, I hereby authorize the
search. It is undisputed that Mr. Gonzalez signed the waiver.
The Supreme Court has said that a persons knowledge of his right to refuse
a search is highly relevant to a determination of consent, but that it is not
required to show that consent has been made. United States v. Mendenhall, 446
U.S. 544, 55859 (1980). Here, the fact that the right to refuse was part of his
signed consent form cuts against Mr. Gonzalez. Mr. Gonzalez disputes Officer
Wolthuiss version of events: he puts the consent form signing after the search
was already underway, and says that he could not read the form. But it was not

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clearly erroneous for the district court to credit the officers testimony that Mr.
Gonzalez understood the waiver and signed it before the search was underway.
2. The location of the search.
Mr. Gonzalez cites a state court case which held that searches in the home
have a strong presumption of being non-voluntary. The home is where a person
enjoys the highest expectation of privacy. . . . As such, the factors bearing on the
voluntariness of a consent to search must be specially scrutinized. Kutzorik v.
State, 891 So.2d 645, 648 (Fla. App. 2005). However, we have held that the
location of a search has only a limited relevance to the question of whether a
police-citizen encounter is consensual. United States v. Little, 18 F.3d 1499,
1505 (10th Cir. 1994).
Again, this is a factual issue. Officer Wolthuis said Mr. Gonzalez told him
to come in and look, Doc. 55 at 20, and that he signed the consent form after
having it read to him. The district court believed the officers testimony made
under oath. We find no clear error.
3. Futility.
Mr. Gonzalez says that in the face of Officer Wolthuiss gun and forcible
entry already made, he felt he had no choice but to comply. Mr. Gonzalezs
version of events also has Officer Wolthuis searching first, and then having Mr.
Gonzalez consent later, which he claims shows that it was pointless to resist. See
United States v. Haynes, 301 F.3d 669, 683 (6th Cir. 2002) ([A] person might
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reasonably think that refusing to consent to a search of his home when he knows
that the police have, in fact, already conducted a search of his home, would be a
bit like closing the barn door after the horse is out.). Mr. Gonzalez also claims,
relatedly, that the forceful, intrusive nature of the officers conduct made his
consent less than voluntary. See United States v. Little, 60 F.3d 708, 712 (10th
Cir. 1995) (Accusatory, persistent, and intrusive questioning can turn an
otherwise voluntary encounter into a coercive one. (citation omitted)).
Again, the district court seemed to credit Officer Wolthuiss testimony. In
Officer Wolthuiss version of the events, Mr. Gonzalez invited the officers in, and
freely signed a consent waiver prior to any search. Officer Wolthuis also testified
that the rapport between the officers and Mr. Gonzalez was cordial and
cooperative. Interpreting the facts in the light most favorable to the government,
as we must, United States v. Long, 176 F.3d 1304, 1307 (10th Cir. 1999), we have
no basis for finding the district court conclusion in error.
4. Number of officers.
Officer Wolthuiss version of events has more officers arriving after the
search was finished, and Mr. Gonzalezs version does not directly conflict with
this. Mr. Gonzalez has the canine officer coming into his house thirty minutes
after the first two officers were there. Another thirty minutes later, he says,
several other police officers arrived. Gonzalez Aff. at 11. The searcheven

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on Mr. Gonzalezs versionseems to have happened before the arrival of the

additional officers.
Mr. Gonzalez seems to assert that whenever two officers are present, this is
too many for a defendant to freely consent to a search. He cites a case with
very different facts in support of this proposition, Harless v. Turner, 456 F.2d
1337 (10th Cir. 1972), where two officers entered a house at 1:45 a.m., roused the
defendant out of bed, and proceeded to question him. We are not about to
endorse the claim that, as a matter of law, consent is vitiated any time someone is
approached by more than one officer. This would be absurd. Again, on the facts
as recounted by Officer Wolthuis, whom the district court believed, we find no
clear error.
IV. Conclusion
Given the deference we owe to the district court, especially on its
determination of the credibility of Officer Wolthuis, we AFFIRM the district
courts denial of the motion to suppress.
Entered for the Court,
Michael W. McConnell
Circuit Judge

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