United States v. Dilley

United States Court of Appeals
Fifth Circuit
F I L E D
March 2, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-30869
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
KENNETH S. DILLEY
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
m 3:04-CR-75-1
______________________________
Before SMITH, BENAVIDES, and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Kenneth Dilleywas convicted of conspiracy
to manufacture and distribute methampheta-
mine, possession with intent to distribute
methamphetamine, and possession of a fire-
arm. He appeals his conviction by challenging
the denial of his motion to suppress evidence
found in his storage unit, claiming that his
statement to police did not constitute free and
voluntary consent to a search. Because the
consent was voluntary, and a reasonable offi-
cer would have believed that Dilley had au-
thority to consent to a search, we affirm.

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I.
Suspecting that Dilley might be involved in
illegal drug activity, police surveilled him on
two occasions and learned from a confidential
informant that he maintained a storage unit.
Upon completing a background check, police
also discovered that he had severaloutstanding
warrants.
A few days later, police resumed their sur-
veillance and observed Dilley exiting his house
and placing a black bag into an illegally-
licensed Lexus. He drove away, and the police
followed him to the storage facility, where
they initiated a stop based on the outstanding
warrants. Trying to escape, Dilley drove to-
ward the officers and then into an adjacent
field. After his car got stuck in the mud, he
exited it and tried to crawl underneath it.
Dilley was on the ground, covered in mud
and bleeding from a head wound. Officers ar-
rested and handcuffed him and gave a Miranda
warning. In Dilley’s wallet was a receipt from
the storage facility. Upon searching his ve-
hicle, officers found a set of keys, a duffel bag
containing drugs, a gun, and several ledgers.
An officer asked Dilley whether he rented a
unit at the storage facility, which he vehe-
mently denied. When he was confronted with
the receipt, Dilley replied, “I don’t have a unit
over there. You can search any of them over
there. You are not going to find anything.”
Deeming that response to constitute con-
sent, an officer proceeded to storage unit num-
ber sixteen and opened it with the keys found
in the Lexus. Inside, officers discovered a
gun, ammunition, plastic bags, and a personal-
ized license plate bearing Dilley’s name.
Dilley admitted to renting the storage unit,
but he moved to suppress any evidence ob-
tained therein as the fruit of an unlawful
search.1 He argued that because he had denied
ownership of the unit, he did not give valid,
free, and voluntary consent to a search. The
district court denied the motion.
II.
When courts review a search justified by
consent, there are four distinct issues. First, as
a threshold matter, the government must dem-
onstrate that the defendant did consent.2 If a
defendant consents to a search, probable cause
analysis is inapplicable, and the search is mea-
sured against the general Fourth Amendment
requirement of reasonableness.3 Existence of
consent is determined based on the totality of
the circumstances.4
Once the government has demonstrated
consent, the next issue is whether it was
1 Dilley moved to suppress the fruits of the au-
tomobile search, as well as of the storage unit
search, but he does not appeal the auto search.
2 See United States v. Price, 54 F.3d 342 (7th
Cir. 1995) (examining whether a defendant who
responded “Sure” meant “Sure you can search” or
“Sure, I mind if you search”); United States v.
Barrington, 210 F. Supp. 2d 773, 778 (E.D. Va.
2002) (same).
3 See Illinois v. Rodriguez, 497 U.S. 177, 183
(1980) (“What [the defendant] is assured by the
Fourth Amendment itself, however, is not that no
government search of his house will occur unless
he consents; but that no such search will occur that
is ‘unreasonable.’”). Even where police have ob-
tained a search warrant, if the suspect consents
they need not execute the warrant. United States
v. Lee, 356 F.3d 831 (8th Cir. 2003).
4 See, e.g., Price, 54 F.3d at 345.

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voluntary.5 Voluntariness is to be determined
based on the totality of the circumstances, with
the burden of proof on the government.6
If the government demonstrates voluntary
consent, two issues remain: whether the search
was within the scope of the consent granted;7
and whether the consenting individual had
authority to consent.8 Unlike the first two
issues, scope and authority are not determined
based on a totality-of-the-circumstances
standard, but rather by a reasonable-officer
standard.9 The burden of proof remains on the
government.
Because all four issues are factual, we re-
view the district court’s determinations for
clear error.10 We review its ultimate Fourth
Amendment conclusions de novo.11
III.
In claiming that the district court committed
clear error, Dilley does not primarily argue
that he did not consent or that his consent was
not voluntary.12 Instead, his claim goes to au-
thority: When he denied ownership of the
unit, the police could not have thought he had
the authority to consent to a search.
5 See Schneckloth v. Bustamonte, 412 U.S. 218
(analyzing voluntariness under a totality-of-the-cir-
cumstances test).
6 Id. This circuit uses a six-factor test to deter-
mine voluntariness. See United States v. Kelley,
981 F.2d 1464, 1470 (5th Cir. 1993) (“In evaluat-
ing the voluntariness of consent, we have consid-
ered six factors: (1) the voluntariness of the defen-
dant’s custodial status; (2) the presence of coercive
police procedures; (3) the extent and level of the
defendant’s cooperation with the police; (4) the de-
fendant’s awareness of his right to refuse to con-
sent; (5) the defendant’s education and intelligence;
and (6) the defendant’s belief that no incriminating
evidence will be found. All six factors are relevant,
but no single one is dispositive or controlling.”) (ci-
tations omitted).
7 See United States v. Ibarra, 965 F.2d 1354,
1356 n.2 (5th Cir. 1992) (en banc) (per curiam)
(affirming by equally-divided court) (“Government
has the burden of proving the search was conduct-
ed within the scope of the consent received.”).
8 See United States v. Matlock, 415 U.S. 164
(1974) (considering whether police can rely on con-
sent of third party); Rodriguez (same).
9 See Florida v. Jimeno, 500 U.S. 248, 251
(continued...)
9(...continued)
(1991) (“The standard for measuring the scope of
a suspect’s consent under the Fourth Amendment
is that of “objective” reasonablenessSSwhat would
the typical reasonable person have understood by
the exchange between the officer and the sus-
pect?”); Rodriguez, 497 U.S. at 186-88 (“Whether
the basis for such authority [to consent] exists is
the sort of recurring factual question to which law
enforcement officials must be expected to apply
their judgment, and all the Fourth Amendment re-
quires is that they answer it reasonably. . . .
Would the facts available to the officer at the mo-
ment warrant a man of reasonable caution in the
belief that the consenting party had authority over
the premises?”).
10 Price, 54 F.3d at 345.
11 United States v. Gonzalez, 328 F.3d 755,
758 (5th Cir. 2003).
12 Although Dilley was under arrest when he
gave consent, he had received his Miranda warn-
ings and makes no allegation that his consent was
obtained through force or coercion. The district
court’s conclusion that his consent was voluntary
is not clearly erroneous.

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If a reasonable officer could believe that
Dilley had authority to consent to a search of
the storage unit, the search was reasonable un-
der the Fourth Amendment.13 At the time he
consented, police had received a tip that he
maintained storage unit number sixteen, they
had observed him driving into the storage fa-
cility, and they had found a receipt and keys
for the unit in his possession. With this evi-
dence, a reasonable officer could believe that
Dilley had authority to consent to a search, de-
spite his bald denial of ownership.
Dilley maintains that United States v. Vega,
221 F.3d 789 (5th Cir. 2000), compels a dif-
ferent result. There, in response to police
questioning, the defendant denied residing at a
particular house. We noted that Fourth
Amendment rights are not lost by one’s refusal
to give incriminating answers to police ques-
tioning. Id. at 797. “One does not lose the
legitimate expectation of privacy in a residence
merely by denying an interest therein. Indeed,
a misleading response to an officer’s question
is a far cry from consent to search.” Id.
(citations omitted).
Vega is not determinative, however, be-
cause Dilley’s consent was not gleaned from
his denial of ownership, but from his state-
ment, “You can search any of them over there.
You are not going to find anything.” Dilley
maintained the expectation of privacy in his
storage unit even after denying his ownership,
then he exercised his property rights by con-
senting to a search of the location. Vega does
not compel a contrary result.
The judgment is AFFIRMED.
13 See also United States v. Chaidez, 919 F.2d
1193, 1201-02 (7th Cir. 1990) (holding that actual
authority justifies a search even where it was not
reasonable for the police to have believed the con-
senter had authority).

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