The Ninth Circuit has stated that the following facts weigh against a determination of voluntariness: (1) the defendant was in custody; (2) the arresting officers had their guns drawn or otherwise overmastered the suspect; (3) Miranda warnings were not given prior to the search; (4) the defendant was not told he had a right to withhold his consent to be searched; or (5) the officers claimed that they could obtain a search warrant. United States v. Kim, 25 F.3d 1426, 1431 (9th Cir. 1994). However, no single factor is dispositive.

By failing to qualify the broad language of U.S.S.G. § 1B1.3 in the same way that it qualified the language of U.S.S.G. § 1B1.4, the Sentencing Commission left open the possible interpretation that a district court is not limited by other sources of law in initially determining the applicable guidelines range, but rather is only so limited in terms of the information it can consider when selecting a sentence within a selected guidelines range or when deciding whether to depart from that range. See United States v. Kim, 25 F.3d 1426, 1433-34 (9th Cir. 1994). However, because we find no applicable law prohibiting the consideration of evidence during the sentencing phase, the district court's decision would be correct regardless of whether the limitations of U.S.S.G. § 1B1.4 is incorporated into U.S.S.G. § 1B1.3. See id. at 1434.

SeeBrower, 489 U.S. at 596–97, 109 S.Ct. 1378. The government, however, contends that this case is controlled by United States v. Kim, 25 F.3d 1426 (9th Cir. 1994). In Kim, two agents in plainclothes from the Drug Enforcement Administration ("DEA") parked behind Kim's already parked car, partially blocking it in. 25 F.3d at 1428.

This initial encounter up to the point that Lenchanko indicated that she was going to hold Matau's bag for a dog sniff was therefore consensual. See United States v. Kim, 25 F.3d 1426, 1430 (9th Cir. 1994) (holding that, even where officers come to a parked car and ask questions to a person seated inside, the encounter is consensual and not an investigatory stop if the person feels free to leave). 6. Even assuming Lenchanko picked Matau out for observation because of his race, Lenchanko's questioning of him was allowed under Ninth Circuit law.

This is true whether an officer approaches a person who is on foot or a person who is in a car parked in a public place. See United States v. Kim, 25 F.3d 1426, 1430 (9th Cir.1994). Moreover, it is clear that the permissible questions may include a request for consent to search, see Muehler, 544 U.S. at 101, 125 S.Ct. 1465, "as long as the police do not convey a message that compliance with their requests is required."

See, e.g., United States v. Vandemark, 522 F.2d 1019, 1021 (9th Cir. 1975) (declining to extend the exclusionary rule to sentencing after revocation of probation); Tauil-Hernandez, 88 F.3d at 581 n. 3 (citing cases from seven circuits holding that the exclusionary rule does not apply at sentencing). See also United States v. Kim, 25 F.3d 1426, 1434-36 (9th Cir. 1994) (declining to apply exclusionary rule at sentencing and limiting Verdugo v. United States, 402 F.2d 599 (9th Cir. 1968), which sanctioned exclusion of illegally seized evidence at sentencing, "to circumstances where law enforcement officers commit a blatant illegality in pursuit of evidence compounding an already well-substantiated charge," Kim, 25 F.3d at 1435). Affirming the district court's sentencing decision would not only require us to ignore established precedent that the exclusionary rule generally does not apply to sentencing proceedings, but would make no sense in this case, where Haynes and Denton pled guilty to the amounts at issue.

As relevant to the parties' arguments, the Ninth Circuit discussed the contours and meaning of the factor in Cormier, first noting “[t]he fifth factor, whether the defendant was told that a search warrant could be obtained, has been the source of some disagreement in this Circuit,” and observing: United States v. Kim, 25 F.3d 1426, 1432 (9th Cir.1994), for example, this Court found that the failure to inform a defendant that a search warrant could be obtained supports a finding that a defendant freely and voluntarily consented to a search. According to Kim, the reason for that view is that threatening a defendant with a search warrant intimates that the “withholding of consent would ultimately be futile.

“Absent indicia of force or aggression, a request for identification or information is not a seizure or investigatory stop.” United States v. Kim, 25 F.3d 1426, 1430 (9th Cir. 1994) (citing $25,000 U.S. Currency, 853 F.2d 1501, 1505 (9th Cir. 1988)); INS v. Delgado, 466 U.S. 210, 216 (1984) (brackets and internal quotation marks omitted).

(Opp'n 8.) Here, the officers were on foot and the Government argues they did not block Defendant's movement, United States v. Kim, 25 F.3d 1426, 1430 (9th Cir.1994) (finding no seizure even where officer parked his unmarked car so as to block partially the egress of defendant's vehicle before asking defendant questions). (Opp'n 8.)

Mot. at 9-11. The Government disagrees, appropriately relying on United States v. Kim, 25 F.3d 1426 (9th Cir. 1994), which found that the act of blocking in a parked vehicle does not result in a seizure of its occupants. Opp'n at 7-8.