UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4057

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FILIBERTO GOMEZ-ZUNUN,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard Mark Gergel, District Judge. (2:17-cr-00543-RMG-1)

Submitted: October 10, 2018 Decided: October 22, 2018

Before NIEMEYER, KEENAN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Emily Deck Harrill, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Sherri A. Lydon, United States Attorney, Columbia, South Carolina, Nick Bianchi, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Filiberto Gomez-Zunun pled guilty, pursuant to a written plea agreement, to

entering and being found in the United States after having been previously removed, in

violation of

(a) (2012), and possession of a firearm and ammunition by

an alien unlawfully present in the United States, in violation of

(g)(5)

(2012). Gomez-Zunun reserved the right to appeal the district court’s order denying his

motion to suppress the firearm and ammunition seized by law enforcement officers

during a warrantless search of his residence on April 25, 2017. On appeal, Gomez-Zunun

argues that the officers’ entry onto his property violated his Fourth Amendment rights

and that his wife did not voluntarily consent to the search. We affirm.

“When reviewing a district court’s ruling on a motion to suppress, we review

factual findings for clear error and legal determinations de novo.” United States v. Lull,

(4th Cir. 2016) (internal quotation marks omitted). “[W]e must

construe the evidence in the light most favorable to the prevailing party and give due

weight to inferences drawn from those facts by resident judges and law enforcement

officers.”

(internal quotation marks omitted). “When reviewing factual

findings for clear error, we particularly defer to a district court’s credibility

determinations, for it is the role of the district court to observe witnesses and weigh their

credibility during a pre-trial motion to suppress.” United States v. Palmer,

(4th Cir. 2016) (brackets and internal quotation marks omitted).

The testimony at the suppression hearing established that four Immigration and

Customs Enforcement agents and several Berkeley County’s Sheriff’s deputies went to

2 Gomez-Zunun’s home at approximately 6:15 a.m. on April 25, 2017, after receiving

information that he was in the country illegally and possibly possessed firearms. It was

dark outside when the agents arrived, and the lights were off in the residence. The agents

wore jeans, t-shirts, bulletproof vests, and side arms. Two agents climbed the front steps

and knocked on the front door several times. Gomez-Zunun’s wife Sherry Zunun

eventually came to the door, and the agents asked her if they could come inside. They

did not tell her why they were there or that she had the right to refuse their request. Ms.

Zunun gave the agents oral consent to come inside, and they entered the living room.

The agents testified that, once inside the living room, Ms. Zunun told them her

husband was at work and that she gave oral consent to do a protective sweep of the

residence to ensure that no one else was home. The agents conducted the sweep, found

nothing, and returned to the living room. According to the agents, after the lead agent

saw a holster and several magazines of ammunition on the living room sofa, Ms. Zunun

told them that her husband kept a firearm in the bedroom and gave them oral consent to

search for the firearm, which they found on the floor of the bedroom partially underneath

the bed. After the agents seized the firearm, Ms. Zunun signed a form stating that she

consented to the search of the residence.

Ms. Zunun testified that, although she gave the agents oral consent to enter the

residence, she felt she had no choice but to let them in because they were law

enforcement officers. She denied giving the agents oral consent either to conduct a

protective sweep or to search the bedroom for firearms. She acknowledged signing the

3 written consent form, but she stated that she did so because it was early in the morning

and she was upset. She confirmed that the agents were never rude or aggressive.

The district court credited the agents’ testimony, found that Ms. Zunun gave the

agents oral consent to enter the residence, do a protective sweep, and search the bedroom

for firearms, and denied the motion to suppress. Gomez-Zunun challenges on appeal the

court’s denial of his suppression motion.

Gomez-Zunun first contends that Ms. Zunun’s consent is invalid because the

agents’ entry onto the curtilage of his residence was itself unconstitutional under Florida

v. Jardines,

(2013). Contrary to Gomez-Zunun’s contention, he did not make

this argument below as a separate basis for suppressing the evidence. Accordingly, our

review is only for plain error. United States v. Cohen,

(4th Cir.

2018) (discussing standard of review).

Our review of the record on appeal leads us to conclude that Gomez-Zunun fails to

establish error, plain or otherwise, in the district court’s failure to sua sponte suppress the

evidence on the ground that the agents’ entry onto his property was unconstitutional. The

record does not suggest that the officers’ “behavior objectively reveal[ed] a purpose to

conduct a search.” Jardines,

; see Westfall v. Luna, __ F.3d __, __, No.

16-11234,

, at *7 (5th Cir. Sept. 13, 2018) (“recogniz[ing] . . . knock-

and-talk strategy as a reasonable investigative tool when officers seek to gain an

occupant’s consent to search or when officers reasonably suspect criminal activity”

(internal quotation marks omitted)). Moreover, Gomez-Zunun’s reliance on United

4 States v. Lundin,

(9th Cir. 2016), is misplaced as the facts in Lundin are

distinguishable from the facts in this case.

Next, Gomez-Zunun argues that his wife did not voluntarily consent to the search

of the mobile home. “The Fourth Amendment protects against unreasonable searches

and seizures. Searches without probable cause are presumptively unreasonable, but if an

individual consents to a search, probable cause is unnecessary.” United States v.

Robertson,

(4th Cir. 2013) (citation and internal quotation marks

omitted); see Schneckloth v. Bustamonte,

(1973) (recognizing that

consent is “one of the specifically established exceptions to the requirements of both a

warrant and probable cause”). Whether a person “freely and voluntarily” gave consent to

search or did so due to “duress or coercion” is a question of fact that we review for clear

error. Bustamonte,

; Robertson,

; United States v.

Lattimore,

(4th Cir. 1996) (en banc).

“We . . . look[] to the totality of the circumstances” to determine the voluntariness

of a consent to search. Robertson,

(setting forth factors courts consider

and citing Lattimore,

). Whether the officers informed the person searched

“of [the] right to decline . . . is a highly relevant factor.”

(internal quotation marks

omitted). But “the Government need not demonstrate that the [person searched] knew of

[the] right to refuse consent to prove that the consent was voluntary.” Lattimore,

; see Bustamonte,

.

We conclude that the district court did not clearly err in finding that Ms. Zunun

freely and voluntarily gave the agents consent to enter the residence, conduct a protective

5 sweep, and search the bedroom for firearms. Gomez-Zunun argues that the time of the

encounter, the number of law enforcement officers present, and the facts that the agents

were armed and wore bulletproof vests and never told his wife that she had the right to

refuse consent weigh against a finding of voluntariness. However, Ms. Zunun confirmed

that the agents never acted aggressively or coercively and did not detain or arrest her, and

nothing in the record suggests that any of her personal characteristics made her

particularly susceptible to coercion. Moreover, the district court had the opportunity to

observe Ms. Zunun’s testimony and is in the best position to assess the credibility of her

testimony that she felt that she had no choice but to let the agents into the residence. See

United States v. Hill,

(4th Cir. 2011) (“District courts are given

deference where their determination on the issue of consent is based on oral testimony

where they had an opportunity to make a credibility determination.”). Finally, the written

consent form executed after the seizure of the firearm is probative of the voluntariness of

Ms. Zunun’s earlier oral consent. Accordingly, construing the evidence at the

suppression hearing in the light most favorable to the Government and giving due

deference to the district court’s credibility determinations, we conclude that the district

court did not clearly err in finding that the agents discovered and seized the firearm

during a lawful consent search of Gomez-Zunun’s residence. *

* Because we conclude that the search of Gomez-Zunun’s residence was constitutional based on Ms. Zunun’s consent, we need not address the district court’s alternative holdings that the agents seized the firearm during a lawful protective sweep or that the plain-view discovery of ammunition and a holster in the living room gave the agents probable cause and exigent circumstances to search the bedroom.

6 We therefore affirm the district court’s denial of the motion to suppress and affirm

the court’s judgment. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

AFFIRMED

7