U.S. v. ABDENBI

McCONNELL, Circuit Judge, dissenting.

Before daybreak on April 10, 2002, Mr. Samir Hedi Ben Abdenbi, a citizen of Tunisia living (illegally, as we now know) in Denver, Colorado, was awakened in his bedroom by agents of the United States government. They did not have a warrant to enter or search the home. Nor did they have any reasonable suspicion of wrongdoing by Mr. Ben Abdenbi. In fact, they were not even aware of Mr. Ben Abdenbi's existence. At least one, and possibly more, agents (depending on which version of which agent's testimony is to be believed), wearing plain clothes and carrying concealed firearms, entered his bedroom, rousted Mr. Ben Abdenbi out of bed in his underwear, and told him or asked him (depending on which version of the agent's testimony is to be believed) to leave his bedroom and go to the living room. There he was instructed to sit and (according to the agent's own uncontradicted testimony) was not allowed to leave the room. He was questioned regarding his immigration status, which was unlawful; he was then arrested, charged, and ultimately convicted of fraud and misuse of a government identity document.

The majority concludes the "encounter" was "wholly consensual." Maj. Op. 1285.

One of Mr. Ben Abdenbi's apartment mates, Mr. Amour Bejaoui, apparently awakened by knocks on the door, admitted the agents so that they could speak to a third apartment mate, Mr. Janis Habib Jlassi. Once inside the door, the three armed agents proceeded, without seeking further permission, to comb the entire apartment, including the bedroom where Mr. Ben Abdenbi was sleeping, and to order all the inhabitants — not just Mr. Jlassi — into the living room for questioning. According to the majority, Mr. Bejaoui's admission of the agents into the apartment to speak to Mr. Jlassi constituted "consent" to search the entire apartment (Maj.Op. 1288), Mr. Ben Abdenbi's compliance with instructions to come to the living room was a product of his own consent ( id. at 1292), and the agent's admission that the men were not free to leave the living room reflected only the agent's "subjective intentions" and not the objective reality of a Fourth Amendment seizure ( id. at 1293). I respectfully dissent as to each element of the analysis.

1. Mr. Bejaoui's Consent.

I do not believe Mr. Bejaoui's act of admitting the three agents into the apartment to speak to Mr. Jlassi can reasonably be construed as consent for them to sweep through the apartment, enter all the bedrooms, and order every member of the household out of bed for questioning.

In Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), the Supreme Court held that when determining the scope of consent, courts should employ a standard of objective reasonableness, asking how a reasonable person would have understood the exchange between the officer and the suspect. Id. at 250-51, 111 S.Ct. 1801. The Court held that "[t]he scope of a search is generally defined by its expressed object." Id. at 251, 111 S.Ct. 1801. In that case, because the officer told the defendants that he would be looking for narcotics in the car, it was objectively reasonable for the officer to interpret consent as authorizing the search of a closed paper bag within the car. Id. at 251-52, 111 S.Ct. 1801.

Although in general we have employed fairly expansive interpretations of officers' search requests, see, e.g., United States v. Gigley, 213 F.3d 509, 513, 515 (10th Cir. 2000) (consent to "look in" automobile included authorization to look under rear seat of van); United States v. McRae, 81 F.3d 1528, 1537-38 (10th Cir. 1996) (officer's request to search the trunk of a car permitted lifting carpeting in trunk), we have insisted that the words the officer uses in requesting consent limit the permissible scope of the search. See, e.g., United States. v. Elliott, 107 F.3d 810, 814-15 (10th Cir. 1997) (officer's request to look in trunk to see how items were "packaged" did not include authorization to open and inspect packages) (citing 3 Wayne R. LaFave, Search and Seizure § 8.1(c) at 620 (3d ed. 1996) ("When a purpose is included in the [officer's] request, then the consent should be construed as authorizing only that intensity of police activity necessary to accomplish the stated purpose.")); United States v. Leary, 846 F.2d 592, 599 (10th Cir. 1988) (assuming that consent to examine corporate records related to export activities was given, this consent did not authorize examination of financial records unrelated to export activities); United States v. Towns, 913 F.2d 434, 442 (7th Cir. 1990) (defendant's allowing police to enter apartment to provide identification did not authorize police to search through his belongings and conduct an exploratory search of apartment for a seven-hour period).

On direct testimony, Agent Kenneth Grubb's entire description of his request for Mr. Bejaoui's consent consisted of the following: "we requested entry to the apartment so we could speak with Mr. Jlassi." Suppression Hr'g Tr. 11, R. vol. 2 (hereinafter cited as "Tr."). On cross-examination, Agent Grubb elaborated. After the agents asked Mr. Bejaoui whether Mr. Jlassi lived there and received an affirmative answer, the following conversation ensued between Agent Grubb and Mr. Bejaoui:

Q. What did you say?

A. I said, "Well, we need to talk to him. Can we come in?"

Q. And what did he say?

A. He allowed us to enter at that point.

Q. What did he say?

A. I don't recall specifically, but he opened the door.

Q. Did he stand aside?

A. No. He opened the door farther, and yeah, I guess he did step aside. I can't recall whether he led the agents in or just fell in behind.

Tr. 33.

As this testimony indicates, Agent Grubb explicitly requested only to "come in" to the apartment and to "speak with Mr. Jlassi." A reasonable person would not interpret this exchange as consent to search the entire apartment or to roust the entire household out of bed. A reasonable person in Mr. Bejaoui's shoes (or bare feet, as the case may be) would interpret this exchange to mean that the agents would enter the apartment and wait in the entranceway or common areas of the apartment while Mr. Jlassi was summoned by Mr. Bejaoui — or at the most intrusive, be escorted to Mr. Jlassi's room.

Once inside the door, the agents made no further request for permission to penetrate into the private areas of the apartment. According to Agent Grubb's testimony: "I believe Ross [Agent Godwin] asked him where Mr. Jlassi was, and I don't know that he received a response, but we walked through the back two bedrooms." Tr. 12.

The district court is entitled to broad deference in determining the scope of consent. United States v. Pena, 920 F.2d 1509, 1514 (10th Cir. 1990) ("Whether a search remains within the boundaries of the consent is a question of fact to be determined from the totality of the circumstances, and a trial court's findings will be upheld unless they are clearly erroneous."). The district court, however, expressly concluded only that Mr. Bejaoui consented "to the agents' entrance," Dist. Ct. Op. 4-5, R. doc. 24 (hereinafter cited as "Dist. Ct. Op."), which I do not dispute. The question is how they got permission to roam about the apartment, poking their heads into the bedrooms of sleeping (or resting) occupants. See 3 Wayne R. LaFave, Search and Seizure § 8.1(c) at 622 (3d ed. 1996) (consent to enter a residence to conduct questioning does not permit a search).

Moreover, even assuming that Mr. Bejaoui's admission of the agents into the apartment could reasonably have been interpreted as consent to search the entire apartment, I cannot agree that he had authority to permit the agents to search the bedrooms of his apartment mates. It is one thing to hold — as the district court did (Dist.Ct.Op.4-5) — that Mr. Bejaoui had authority to consent to the entry, or even that he had authority to invite the agents into the common areas of the apartment. It is quite another to hold that one resident of a multi-tenant apartment can consent to a search of another resident's bedroom.

The majority speculates that Mr. Ben Abdenbi may not have been a "permanent co-tenant," based on an agent's hearsay testimony that Mr. Ben Abdenbi had said he was "staying there for a short period with Mr. Jlassi." Maj. Op. 1290. The district court, however, described the men as "roommates" and accepted the agents' inference that they "resided together." Dist. Ct. Op. 9.

In United States v. Matlock, 415 U.S. 164, 170-73, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Supreme Court recognized that co-tenants with common authority over the premises may authorize police searches of the residence, and that third-party consent may be valid against the nonconsenting party who is the ultimate subject of the search. However, neither the Supreme Court nor this Court has ever held that co-tenants have plenary authority over their roommates' private quarters. Indeed, United States v. Rith, 164 F.3d 1323 (10th Cir. 1999), states a presumption to the contrary. The issue in Rith was whether parents had authority to grant police access to search the room of their teenage son. Id. at 1327-28. The Court held that because parents were presumed to have authority over the entire house, their consent was binding on their offspring. However, in the course of this discussion, Rith contrasted the parent-child relationship with the arrangement typically found among roommates, finding that:

Relationships which give rise to a presumption of control of property include parent-child relationships and husband-wife relationships. In contrast, a simple co-tenant relationship does not create a presumption of control and actual access would have to be shown. See United States v. Duran, 957 F.2d 499, 505 (7th Cir. 1992) ("Two friends inhabiting a two-bedroom apartment might reasonably expect to maintain exclusive access to their respective bedrooms without explicitly making this expectation clear to one another."); United States v. Heisman, 503 F.2d 1284, 1287 (8th Cir. 1974) (although defendant's room did not have a door or a lock, co-tenant did not have authority to consent to a search of defendant's private areas).

Id. at 1330 (some citations omitted).

In addition to validating third-party consent when the co-tenant has "control for most purposes" over the property, Rith raises the possibility of valid consent when the co-tenant has "mutual use of the property by virtue of joint access." 164 F.3d at 1329. Rith, however, finds this second test to be a "fact-intensive inquiry" which requires findings by a court that the third party may enter the premises at will and without the consent of the subject of the search. Id. at 1329-30. The majority silently flips the burden of proof on this issue, and seems to suggest that an individual living in a multi-occupant apartment is presumed not to be a co-tenant unless he proves otherwise. Maj. Op. 1290. Rith stands for the opposite presumption. See id. at 1330 (contrasting the presumptive differences between familial and co-tenant living arrangements noting "[t]he difference between a husband-wife or parent-child relationship and a co-tenant relationship is that a husband-wife or parent-child relationship raises a presumption about the parties' reasonable expectations of privacy in relation to each other in spaces typically perceived as private in the co-tenant relationship.") (emphasis added). Because there is no evidence in the record suggesting that Mr Bejaoui had permission to enter Mr. Ben Abdenbi's room at will, I rely on the presumption that roommates maintain exclusive privacy interests in their bedrooms. See id.

Albeit in dicta, but relying on holdings from other circuits, this Court in Rith recognized a presumption that one roommate cannot grant consent for police to search the bedroom or private quarters of his co-tenant. Id. Even assuming that Mr. Bejaoui gave the agents authority to do more than come inside the apartment, nothing in the record supports a finding that Mr. Bejaoui was authorized to grant access to Mr. Ben Abdenbi's room. Quite the contrary, because the apartment was inhabited by several roommates, the presumption is that Mr. Bejaoui's consent was not a valid waiver of the privacy interest maintained by Mr. Ben Abdenbi in his bedroom. See id.

If Mr. Bejaoui did not consent to the search of the private areas of the apartment, or if he lacked authority to consent to the search of his apartment mate's bedroom, then the encounter between Mr. Ben Abdenbi and the agents should not have taken place. Accordingly, the evidence of Mr. Ben Abdenbi's statements to the agents should have been suppressed.

For the most part, the majority does not defend this aspect of the search on the merits. I hope this will signal to law enforcement officers and lower courts that, despite our affirmance of Mr. Ben Abdenbi's conviction, this circuit does not condone the brazen tactics used by the officers to gain entry to his bedroom. The majority maintains that this Court should not reach the merits because the issues regarding the scope of Mr. Bejaoui's consent "have never been argued in this case." Maj. Op. 1289. I beg to differ. In district court, Mr. Ben Abdenbi's counsel argued:

Yeah, it's 6 o'clock in the morning. The police officers knock on the door and they request permission and they acquiesce to the entry. . . . It's police officers with badges saying they want to come in, not "We want to come in and search," not "we want to come in and do a protective sweep," not "we want to come in and gather everybody into the living room;" simply "We want to come in."

Mr. Bejaoui opens the door and they come in, and then it is like once the door is opened, the flood gates are open and we have this protective sweep going on . . .

Tr. 90. Counsel may not have uttered the word "scope" but counsel was plainly arguing that consent to entry does not constitute consent to search the entire apartment and to question everyone it in. Moreover, issues relating to Mr. Bejaoui's scope of consent were raised by the parties in this Court. In its brief to this Court, the government relied on and cited United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), for the proposition that co-tenants can grant consent against one another. Gov. Br. 8. Responding to the government's arguments, Mr. Ben Abdenbi argued that the agents "exceeded the scope of Mr. Bejaoui's consent" when they entered Mr. Ben Abdenbi's "bedroom and directed him to step into the living room for questioning." Rep. Br. 2. Finally, this issue was given significant attention at oral argument.

I therefore believe the issue is before us. In any event, even if counsel could have raised the issue more emphatically, the constitutional principle involved is important enough that we should exercise our discretion to address it. See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) ("The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals."); Sussman v. Patterson, 108 F.3d 1206, 1210 (10th Cir. 1997) (court of appeals may use its discretion to reverse on the basis of issue not raised below particularly when it is a questions of law that raises important public policy concerns or when ignoring the claim would result in a miscarriage of justice).

2. Mr. Ben Abdenbi's "Consent"

That brings us to the second stage in this remarkable consensual search: the encounter between Mr. Ben Abdenbi and the agents in his bedroom, as Mr. Ben Abdenbi was lying in bed. Relying on Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), and our opinion in United State v. Little, 18 F.3d 1499 (10th Cir. 1994) (en banc), the majority finds that Mr. Ben Abdenbi was not "seized" because a reasonable person in Mr. Ben Abdenbi's position would have felt free to terminate the encounter. Maj. Op. 1292. In light of the circumstances under which police encountered Mr. Ben Abdenbi, I find that conclusion most unrealistic.

It bears mention at the outset that the district court did not make a specific factual finding that Mr. Ben Abdenbi consented to leave his bedroom with the agent. After addressing the agent's initial entrance into the apartment, the district court focused mainly on the subsequent questioning in the living room, rather than concentrate on whether Mr. Ben Abdenbi voluntarily consented to leave his bed and accompany the agents to the living room. Thus, there is no explicit factual finding to which we might have to defer. Bostick and Little trace their lineage to the Supreme Court's holding in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Terry held that not all encounters between citizens and police are considered "seizures" within the meaning of the Fourth Amendment. Id. at 19 n. 16, 88 S.Ct. 1868. Rather, the relevant factors are whether by means of physical force or show of authority the officer restrained the liberty of the suspect. Id. In Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion) the Supreme Court reaffirmed this understanding, stating "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, [or] by asking him if he is willing to answer some questions."

The relevant passage of the district court's opinion reads as follows:

Here, the three agents dressed in street clothing. They entered the premises with Mr. Bejaoui's permission. They did not show or brandish their weapons. No evidence suggests that any agent became physical or used an aggressive tone of voice. The officers did not retain the roommates' possessions. The questioning occurred in a common area with the three agents and the three roommates. And, though the encounter occurred in Mr. Abdenbi's residence, the agents were in the premises with Mr. Bejaoui's consent and Mr. Abdenbi voiced no objection. Accordingly, I find and conclude that a reasonable person would have felt free to terminate the encounter with the agents. Hence, the agents did not detain Mr. Abdenbi at the time of Mr. Abdenbi's initial confession in the apartment.

Dist. Ct. Op. 6 (emphasis added). The italicized portions make clear that the district court was discussing whether the questioning of Mr. Ben Abdenbi in the living room was consensual — not whether his decision to get out of bed and accompany the agents to the living room was consensual.

Of course, Mr. Ben Abdenbi's bedroom was not a public place. To be sure, the Supreme Court has interpreted Royer's "public place" language to extend to some locations that are not accessible to members of the public at large; but if the concept of "public place" extends to a bedroom, it is no limitation at all. In INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), the Court upheld the constitutionality of questioning by officers stationed at all exits of a factory even though it was not a "public" space in the sense that members of the general public could freely gain access to it. Id. at 217 n. 5, 104 S.Ct. 1758. But a factory, even if not open to the general public, falls within the principle of Terry and Royer because it is a place where many people come and go, without much sense of privacy.

Bostick extended Royer and Delgado a step further: to an intercity bus where officers questioned passengers about drug transportation. 501 U.S. at 435-37, 111 S.Ct. 2382. The Court held that there was no per se rule holding that persons confronted by police on a bus were seized, even though the police presence on the bus significantly restricted their movement. Id.; see Little, 18 F.3d at 1503. Like the factory in Delgado, a public bus is a place in which strangers interact without much expectation of privacy. Bostick teaches that the proper analysis requires an examination of the totality of the circumstances to determine whether a "reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter" — not whether the defendant could have physically walked away from the police. Id. at 436, 111 S.Ct. 2382.

Following Bostick, this Court, sitting en banc, applied these principles to the case of an officer who questioned a passenger seated in a semi-private roomette of a train. Little, 18 F.3d at 1501. Like Bostick, Little refused to find the physical layout of the space in which the officer questioned the defendant to be the sole determinant of the search's constitutionality. Rather, Little examined whether the encounter was consensual in light of the totality of the circumstances. Id. at 1506.

Notably, neither Bostick nor Little held that the search at issue was constitutional; each case was remanded for further fact-finding. These cases simply rejected a rule that physical constriction caused by the environment rather than the police automatically transformed otherwise consensual encounters into "seizures." See Bostick, 501 U.S. at 437, 111 S.Ct. 2382; Little, 18 F.3d at 1506. But see Little, 18 F.3d at 1508-09 (Logan, J., dissenting) (noting that lower courts have read Bostick as an affirmative holding that the defendant was not seized).

In analyzing the consensual nature of the encounter in this case, the majority recounts that the agents did not raise their voices, display their weapons, or physically touch Mr. Ben Abdenbi. The opinion further emphasizes Mr. Ben Abdenbi's acquiescence to police requests and the relative calm in the apartment on the morning of the encounter. These are legitimate points to consider. But the element of surprise, the show of authority, the absence of any explanation, the words used by the agents, the time of day, and the non-public setting make the encounter seem far more threatening and coercive than the majority is willing to recognize. Mr. Ben Abdenbi was in a particularly vulnerable state, as he lay in his bed in his underwear, confronting the unexplained presence of law enforcement in his room.

I begin with the last point: location. The most salient distinction between the present case and the line stretching from Terry to Little is that this encounter did not occur on a plane, train, or automobile, but rather in Mr. Ben Abdenbi's house — or more accurately, in his bedroom. Unlike the defendants in any of the cases in the Terry line, Mr. Ben Abdenbi was accosted by police in the far recesses of his "zone of privacy." Payton v. New York, 445 U.S. 573, 589, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). There was no other location to which he could retreat (and remember, at this point, there was not the slightest basis for suspicion that Mr. Ben Abdenbi had engaged in any wrongdoing). Tr. 42-43.

The majority suggests that I rely on my "own findings of fact" in questioning whether Mr. Ben Abdenbi consented to his seizure, Maj. Op. 1292, but the majority's only example of "fact-finding" is my use of the verb, "accost," to describe the police officers' action in entering Mr. Ben Abdenbi's bedroom and rousting him out of bed. I think it is an eminently fair use of the term. See Webster's Third New International Dictionary 12 (1976) (defining "accost" as "1: to approach and speak to," and offering as an example the sentence "they were accosted by the immigration officials").

The Supreme Court has stressed the special character of the home for purposes of interpreting Fourth Amendment protections:

The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home — a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their . . . houses . . . shall not be violated." That language unequivocally establishes the proposition that "[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 [1961]. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house.

Payton, 445 U.S. at 589-90, 100 S.Ct. 1371; see also United States v. Flowers, 336 F.3d 1222, 1226 (10th Cir. 2003) (quoting this language from Payton). While these cases addressed Fourth Amendment protections against unwarranted entry into the home (which we are assuming, arguendo, were waived by Mr. Bejaoui's consent), their reasoning is relevant to evaluating the totality of the circumstances under Bostick. See United States v. Jerez, 108 F.3d 684, 690 (7th Cir. 1997) (reversing a district court's denial of a suppression motion because it "failed to consider adequately two factors: the place and the time of the encounter"). Applying the Bostick standard under somewhat similar circumstances, the Seventh Circuit explained:

Because our law and legal traditions long have recognized the special vulnerability of those awakened at night by a police intrusion at their dwelling place, our Fourth Amendment jurisprudence counsels that, when a knock at the door comes at the dead of night, the nature and effect of the intrusion into the privacy of the dwelling place must be examined with the greatest of caution.

Id. In the past, this Court has refused to find consent where the consent was the product of a confused reaction of a sleeping person to a warrantless intrusion into his bedroom in the dark of night. Harless v. Turner, 456 F.2d 1337, 1338-39 (10th Cir. 1972).

The majority relies on our holding in Little. The en banc opinion in Little, however, contrasted the degree of privacy afforded to an occupant of a train roomette with the privacy expectations legitimately held within the home. See Little, 18 F.3d at 1504 (citing United States v. Colyer, 878 F.2d 469, 475-76 (D.C. Cir. 1989) (in the context of a luggage search, rejecting defendant's argument that an Amtrak roomette is like a hotel room or apartment, finding that "[w]hile an Amtrak sleeper car may in some ways resemble a residence, it enjoys no such status in the law"); United States v. Tartaglia, 864 F.2d 837, 841 (D.C. Cir. 1989) (in the context of a warrantless search, noting that "a passenger traveling in a train roomette has a lesser expectation of privacy than a person in his home"); United States v. Whitehead, 849 F.2d 849, 853 (4th Cir. 1988) ("[W]e reject the contention that a passenger train sleeping compartment is a `temporary home' for fourth amendment purposes. . . . [The amount of privacy one can reasonably expect in a train] is less than the reasonable expectations that individuals rightfully possess in their homes or their hotel rooms.")).

I recognize that in Little we distinguished between the heightened expectation of privacy that one maintains in a particular location, which is relevant to determining the constitutionality of a search of that location, and the question whether a reasonable citizen believes that he can voluntarily terminate the encounter with police, which is the dispositive inquiry in assessing the constitutionality of questioning premised on the subject's consent. Little, 18 F.3d at 1505. Because the Fourth Amendment "seizure" inquiry is dependent on the consensual nature of the interaction, Little held that the expectation of privacy in the location of the police-citizen encounter is of "limited relevance to the question of whether a reasonable person would believe that he or she is unable to terminate the encounter." Id.

However, because this case is substantially different from the line of precedents stemming from Terry and Royer, under the facts before us, I find the location of the encounter significant. While the bus, the train, and the factory are undeniably more secluded than a street corner, they are nevertheless social spaces where citizens routinely encounter strangers. Even within a semi-private train roomette, a passenger will likely confront the ticket collector, the snack vendor, and perhaps other passengers milling about the train. Aware of this environment, the passenger conforms his behavior to the expectations prevailing within the public sphere. By contrast, when one retires to one's own bed for the night, one's guard is naturally let down. Any confrontation with the outside world will occur only after one's morning routine is completed and the security of the home is abandoned. The "unambiguous physical dimensions of an individual's home," Payton, 445 U.S. at 589, 100 S.Ct. 1371, provide the relevant point of transition from the uninhibited private mode to the guarded public one. Indeed, the special status of the home is reflected in the very language of the Fourth Amendment, which guarantees the right of the people to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. Amend. IV. Viewed from this perspective, the location of the agent's encounter with Mr. Ben Abdenbi is an important part of the totality of the evidence.

In addition to the setting, other factors support the conclusion that a reasonable person in Mr. Ben Abdenbi's situation would not have felt at liberty to ignore the police. The relevant facts are as follows: Agents entered Mr. Ben Abdenbi's room in the pre-dawn hours. There they found him mostly undressed and in his bed, with the lights off. It is undisputed that at least one, and possibly more, agents entered the room and requested that Mr. Ben Abdenbi come into the living room for questioning. This activity was taking place as Mr. Jlassi, Mr. Ben Abdenbi's roommate, was arrested and escorted to the living room. Nothing in the record indicates that Mr. Ben Abendbi was aware, or informed by the agents, that their presence in his bedroom was based on Mr. Bejaoui's consent. Cf. Rith, 164 F.3d at 1327 (teenaged defendant informed by police that his parents had given police consent to search the house). Further, police did not inform him in any manner that he was not required to cooperate with them or answer their demands. Cf. Bostick, 501 U.S. at 432, 111 S.Ct. 2382 (police specifically informed defendant that he could refuse consent); Little, 18 F.3d at 1502 (officer informed defendant that she could refuse his request to search her hand luggage). Under the totality of these circumstances, the pre-dawn invasion of one's bedroom by uninvited government agents conveys an undeniable sense of urgency, immediacy, and authority. I cannot understand the majority's assertion that a reasonable person would have felt that he could ignore the agents' request.

The majority finds that "the record supports the district court's conclusion that Agent Grubb was the only law enforcement officer who contacted Abdenbi in his bedroom," and criticizes Appellant for his "sensationalized description" of a situation involving entry and questioning by three officers. Maj. Op. 1292. I suppose it depends on which versions of which agent's testimony one chooses to believe. The testimony is admittedly confusing. At one point, Agent Grubb testified that he was by himself with Mr. Ben Abdenbi and Mr. Bejaoui at the time Mr. Ben Abdenbi agreed to come to the living room. Tr. 15. Agent Jayson Mallard, however, testified as follows:
Q. And you never entered the bedroom, either bedroom?
A. Yes, I did. Initially, no, I did not. I remained in the hallway so that I could see both the living room and the bedrooms.
Q. Mr. Godwin entered Mr. Jlassi's bedroom?
A. I believe so, yes.
Q. And Mr. Grubb entered Mr. Abdenbi's bedroom?
A. I believe so, yes.
Q. Was Mr. Abdenbi sleeping?
A. I am not aware if he was asleep at the time we walked in because we spoke to him, so he was awake by the time I was in the room.
Q. Was he still in the room when you entered the room, he being Abdenbi, the defendant?
A. Yes.
Tr. 72. This clearly indicates that Agent Mallard remembered that he was present with Agent Grubb when Agent Grubb spoke to Mr. Ben Abdenbi. Later, as the majority notes, Agent Mallard changed his testimony; he could not remember what room he was in when he spoke to Mr. Ben Abdenbi. Tr. 73.
Appellant cites to another page in the transcript, Tr. 63, where Agent Mallard states that Agent Godwin was in Mr. Ben Abdenbi's bedroom, which he understandably interprets as meaning that all three agents were present. Appellant's Br. 18. It seems more likely that this reference was a slip of the tongue, since it appears that Agent Godwin was involved with Mr. Jlassi in a different room (Tr. 14, 17, 73-74), and it is unlikely that they left Mr. Jlassi by himself. Nonetheless, I cannot join the majority's pejorative description of Appellant's interpretation as "sensationalized," since it is a fair (though I think inaccurate) reading of the record, on a point on which there was no district court finding of fact.
The majority states that "the district court found that only Agent Grubb entered Abdenbi's bedroom" (Maj.Op. at 1291), but I cannot locate such a finding in the district court's opinion. Nonetheless, because an appellate court must consider the evidence adduced at the suppression hearing in the light most favorable to the government, United States v. Rios, 611 F.2d 1335, 1344 (10th Cir. 1979), I accept the conclusion that only one agent was present in Mr. Ben Abdenbi's bedroom.
Ultimately, I do not think the number of agents present in Mr. Ben Abdenbi's bedroom is dispositive, though it is one factor under Little. Even if there was only one agent, the totality of the circumstances does not support a finding of voluntary consent. Notably, the district court made no finding that Mr. Ben Abdenbi voluntarily consented to leave his bedroom with the agents. The district court found only that, once he was in the living room, Mr. Ben Abdenbi voluntarily consented to questioning. See note 3 above.

Indeed, it is not clear from the record that the agents even employed the vocabulary — let alone the reality — of consent. On direct testimony, Agent Grubb stated that he addressed Mr. Ben Abdenbi while he was still in bed, as follows: "I identified myself as the police and told him that he needed to come out and requested that he step out somewhere where I could talk to him." Tr. 14 (emphasis added). For a law enforcement officer who has suddenly appeared at one's bedside with no explanation to tell the occupant that "he needed to come out" is not my idea of requesting consent. It sounds more like an order. To be sure, when pressed on cross-examination, Agent Grubb revised his testimony to state, "I requested that he exit the bedroom." Id. at 36. The most charitable interpretation is that not even the agent involved was quite sure whether he was making a request or a demand. When asked whether Mr. Ben Abdenbi had been given any choice, Agent Grubb answered: "I don't know that he didn't have a choice." Id. at 37. That is not exactly a ringing affirmation.

Nor did Mr. Ben Abdenbi say anything in response which could be construed as consent. He simply complied with the agent's instructions. Thus, the words exchanged between the agent and the awakened man do little to dispel the otherwise coercive atmosphere of this encounter.

It is clear from the undisputed facts that Mr. Ben Abdenbi did not consider himself at liberty during this encounter. According to Agent Grubb's testimony, the half-naked man asked Agent Grubb for permission to put on some clothes before leaving his bedroom. An individual who considers himself free to disregard police instructions would not find it necessary to ask permission to put his clothes on. It is revealing, as well, that Agent Grubb did not respond by telling Mr. Ben Abdendi that he did not need his permission; instead, he gave it. To be sure, this is evidence only of Mr. Ben Abdendi's subjective understanding of the situation, and possibly that of Agent Grubb as well; but as part of the totality of the circumstances, the exchange is telling. The ultimate legal question is whether the individual had an "objective reason to believe he or she [was] not free to end the conversation with the officer," United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996), but surely the assessments of the officer and the individual, on the scene, are a part of the evidence. Mr. Ben Abdenbi and Agent Grubb were, after all, there; they are presumably reasonable; their contemporaneous evaluation of the totality of the circumstances is worthy of our consideration.

The government argues that "such a modest request" to leave his bedroom and accompany the agents to the living room was so "minimal" an "infringement on individual liberty" as to be akin to "an officer asking a person to move to a safe place to talk on the street." Appellee's Br. 18. I doubt many ordinary people would share the government's equanimity about such an encounter.

3. Questioning in the Living Room.

Mr. Ben Abdenbi and Mr. Bejaoui were escorted to the living room. At the agents' request, they sat on a couch and a chair, while Agent Grubb stood by the exit door. According to Agent Grubb, the police would not have permitted the men to "mill around" the apartment or to approach the bedroom area. Tr. 40. This was a clear admission that Mr. Ben Abdenbi and Mr. Bejaoui had been seized, within the meaning of the Fourth Amendment. They were not free to terminate the encounter and go about their business. This was their apartment; to be confined to their living room and not allowed to "mill around" or return to their bedrooms is a restriction on their freedom. See Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (person who is not allowed to leave his home while police are conducting a search is "seized" for Fourth Amendment purposes); see also United States v. Bennett, 329 F.3d 769, 773 (10th Cir. 2003) (same).

To be sure, after making this statement, Agent Grubb immediately qualified his testimony:
Q. So they weren't free to go anywhere but sit on that couch?
A: Well, it never came to that, sir, because they consensually sat there and they never indicated they wanted to go anywhere.
Tr. 40. This statement, however, is nothing more than Agent Grubb's subjective impression of Mr. Ben Abdenbi's and Mr. Bejaoui's subjective state of mind. That the men were docile might indicate consent; it could just as easily indicate they were scared, or thought they had no choice in the matter.

The district court explicitly found that "a reasonable person would have felt free to terminate the encounter with the agents" at this point. Dist. Ct. Op. 6. The district court made no mention, however, of Agent Grubb's undisputed testimony that the two men were not free to "mill around" or to approach the bedroom area. In light of this undisputed evidence, the conclusion that the men were not seized is clearly erroneous.

The majority does acknowledge Agent Grubb's testimony. Maj. Op. 1293. But the majority disregards it on the ground that the evidence revealed only "the subjective intentions of Agent Grubb," which does not establish any objective reason that a person in Mr. Ben Abdenbi's situation would not feel free to go. Id. I think the evidence is more than that. Agent Grubb was not testifying about his subjective intentions; he was testifying about whether Mr. Ben Abdenbi and Mr. Bejaoui were free to move about the apartment. He said they were not. He was in an excellent position to know, since he was the one with the badge and the gun, standing next to the exit door. It defies common sense and ordinary experience to hold that no seizure has taken place when the police officer admits that the individuals were denied the right to "mill about" their own home.

4. Reasonable Suspicion

Finally, the district court held that the questioning of Mr. Ben Abdenbi in the living room was supported by reasonable and articulable suspicion, based on the following:

The agents knew of Mr. Jlassi's fraudulent I-20 ID and letter. They knew of Mr. Jlassi's fraudulently obtained social security card. Upon lawful entry, the agents noticed that Mr. Abdenbi had few clothes but was apparently sleeping there. According to their experience and training, the agents knew that illegal aliens often resided together, sharing access to false documentation. Finally, the three roommates appeared to the agents to be foreigners and have Arab or Middle Eastern accents.

Dist. Ct. Op. 9.

The majority does not reach the issue of reasonable suspicion, because it concludes the encounter was "wholly consensual." I do not need to reach the issue because the large part of the information on which the district court relied (other than that pertaining to Mr. Jlassi) was obtained as a result of what I have concluded to be an unconstitutional and unconsented-to search of the private areas of the apartment. It is undisputed that, when they arrived at the apartment on the morning of April 10, 2002, the agents knew nothing of Mr. Ben Abdenbi. Tr. 42-43. Had they conducted their investigation within the terms of Mr. Bejaoui's consent, they would never have encountered Mr. Ben Abdenbi, and would never have learned about how few clothes he had, where he was sleeping, his foreign appearance, or his Arab or Middle Eastern accent.

For the foregoing reasons, I respectfully dissent.