FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 21, 2010

JOHN LEY

ACTING CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-11088

Non-Argument Calendar

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D. C. Docket No. 08-60207-CR-WPD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACQUES HERNES TELCY,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(January 21, 2010)

Before BLACK, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

After a jury trial, Jacques Hernes Telcy appeals his convictions for
possession with intent to distribute cocaine and crack cocaine, in violation of 21

U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking

offense, in violation of 18 U.S.C. § 924(c)(1); and possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). After review, we affirm.

I. BACKGROUND

Acting on a tip from a confidential informant (“CI”), officers pulled Telcy

over in an apartment complex parking lot and eventually searched his nearby

apartment, where they found drugs and a firearm. Telcy moved to suppress his

statements to investigators and the physical evidence found in his apartment.

The district court held a suppression hearing at which Detective Osvaldo

Tianga recounted the circumstances of Telcy’s arrest and the search. According to

Detective Tianga, on August 1, 2008, he received information from a CI that a 30-

year-old black male of medium build would be driving a Ford Edge containing

contraband. According to the CI, with whom Tianga had worked and who had

proven reliable in the past, the man lived at the New River Cove Apartments in

Dania, Florida. Tianga and three other federal and state officers spotted Telcy,

who was driving a Ford Edge and fit the description given by the CI. The officers

followed Telcy into the New River Cove apartment complex parking lot and pulled

him over.

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As he approached Telcy’s car, Tianga smelled the odor of marijuana.

Because Telcy put his hand into his pocket, Tianga handcuffed him for officer

safety. When Tianga asked if Telcy had marijuana, Telcy said: “No. You can look

all you want. I just came from the bank.” Upon searching the car, Tianga found a

half-smoked marijuana cigarette and a trash bag containing cellophane bags caked

in a residue. A field test indicated that the residue was cocaine. Telcy denied

knowledge of the drugs or cellophane and stated that he was just at the apartment

complex to pick up a girl. At that point, Tianga advised Telcy of his Miranda

rights. When Tianga confronted Telcy about the cellophane and asked whether a

search of his apartment would yield anything further, Telcy pointed toward a door

in the apartment complex. According to Tianga, Telcy stated: “You could search

my apartment. That’s it. You know, it’s right there.”

The officers entered Telcy’s apartment and conducted a safety sweep, at

which time they noticed a digital scale in plain view, coated in cocaine residue.

Beneath the scale were sandwich bags and about 70 grams of cocaine and crack

cocaine. Further searching revealed a locked safe in Telcy’s bedroom closet.

Tianga returned and asked Telcy where the key for the safe was, and Telcy

responded that it was on his key chain. Tianga took the keys from a table, opened

the safe, and found inside three-quarters of a kilogram of cocaine. Tianga also

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found a firearm and a “kilo press,” used to shape cocaine bundles. Tianga pried

open a plastic compartment within the safe, but he found nothing further. Telcy

was re-advised of his Miranda rights, and he said that the apartment was rented for

him under a female acquaintance’s name, but that it was primarily his residence.

When asked to sign a written consent form, Telcy stated that he wanted to contact

an attorney.

On cross-examination, Tianga recounted that Telcy indicated his apartment

by pointing, and he initially misidentified or misunderstood the apartment to which

Telcy had pointed. On redirect examination, Tianga stated that he initially thought

Telcy deliberately misidentified his apartment, but Telcy later clarified which unit

was his, saying to Tianga, “I told you where the apartment is. It’s right there.”

Telcy also took the stand and testified that he did not consent to the search of

either his apartment or his car. On cross-examination, however, Telcy stated that

he gave officers permission to search the car for his bank receipt.

The district court denied Telcy’s motion to suppress the fruits of the search,

but granted the motion to suppress any statements made after he invoked his right

to counsel. The district court stated that it had considered Tianga’s and Telcy’s

testimony and “determined [the] credibility of witnesses.” The district court

recited the facts crediting Tianga’s version of events. Specifically, the district

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court found that “Telcy consented to the search of his apartment and indicated that

the keys were on his key chain. When the police went to the wrong apartment,

Telcy pointed out the correct apartment, #102.” The district court concluded that

“Telcy voluntarily consented to the search of Apartment #102.”

After trial, a jury convicted Telcy of possession with intent to distribute

crack cocaine (Count One), possession with intent to distribute cocaine (Count

Two), both in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in

furtherance of a drug trafficking offense (Count Three), in violation of 18 U.S.C.

§ 924(c)(1), and possession of a firearm by a convicted felon (Count Four), in

violation of 18 U.S.C. § 922(g)(1). The district court sentenced Telcy to life

imprisonment on Count One, concurrent 235-month sentences on Counts Two and

Four and a consecutive 60-month sentence on Count Three. Telcy filed this

appeal.

II. DISCUSSION

Generally, police officers must obtain a warrant supported by probable cause

to justify a search under the Fourth Amendment. United States v. Magluta, 418

F.3d 1166, 1182 (11th Cir. 2005). A search of property without a warrant and

probable cause is constitutionally permissible if preceded by valid consent. United

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States v. Dunkley, 911 F.2d 522, 525 (11th Cir. 1990).

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Telcy argues that the district court improperly credited Detective Tianga’s

suppression hearing testimony and failed to make a specific credibility finding.

We disagree. The district court expressly stated that it had considered the

credibility of both Tianga and Telcy and then credited the facts conveyed in

Tianga’s testimony. We must defer to the district court’s credibility findings and

accept the credited testimony “unless it is contrary to the laws of nature, or is so

inconsistent or improbable on its face that no reasonable factfinder could accept

it.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). Nothing

in the record suggests Detective Tianga’s testimony is improbable on its face. The

district court did not clearly err in finding credible Detective Tianga’s testimony

that Telcy consented to the search of his apartment.

Further, Telcy has cited no precedent requiring the district court to give a

detailed explanation of its credibility finding. Telcy’s reliance on Gallego v.

United States, 174 F.3d 1196 (11th Cir. 1999), is misplaced. In Gallego, this Court

rejected a rule or presumption that, as a matter of law, a defendant must submit

“In reviewing a district court’s ruling on a motion to suppress, we review findings of 1

fact for clear error and the application of the law to those facts de novo.” United States v.

Martinelli, 454 F.3d 1300, 1306 (11th Cir. 2006). We construe the facts in this case in the light

most favorable to the government, as it was the prevailing party in the district court. United

States v. Newsome, 475 F.3d 1221, 1223-24 (11th Cir. 2007). We are not limited to a review of

the evidence presented at the suppression hearing; instead, we may consider the entire record,

including trial testimony. Id. at 1224. 

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additional corroborating evidence in order to be found credible. Id. at 1198-99.

Here, the district court applied no such rule.

Telcy also raises two new arguments on appeal, which we review for plain

error. See United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009). First,

Telcy argues that, even if he did consent, his consent was not voluntary, but the

product of coercion.

The voluntariness of the defendant’s consent to a search is a factual

assessment and “depends on the totality of the circumstances.” United States v.

Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001). In evaluating voluntariness, we

examine several factors, including the defendant’s custodial status, “the presence

of coercive police procedures, the extent of the defendant’s cooperation with the

officer, the defendant’s awareness of his right to refuse consent, the defendant’s

education and intelligence, and the defendant’s belief that no incriminating

evidence will be found.” Id. at 1281-82.

The record establishes that Telcy was in handcuffs and in custody following

the discovery of contraband in his car. However, the officers did not employ any

coercive tactics. The officers did not brandish their weapons and did not threaten

Telcy or lie to him or otherwise unreasonably pressure him into acceding to their

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request. Detective Tianga merely asked Telcy where his apartment was, whether

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they would find anything illegal inside and whether they could search. Telcy

identified his apartment and consented. According to Detective Tianga, Telcy was

fully cooperative with the officers, permitting them to search his car, directing

them to the right apartment when they approached the wrong door and showing

them where they could find the keys to his safe. Although officers did not inform

Telcy of his right to refuse his consent, this does not invalidate an otherwise valid

consent. See United States v. Taylor, 458 F.3d 1201, 1205 (11th Cir. 2006).

Telcy makes a generalized argument that his background (mainly his

limited, tenth-grade education) undermined his ability to voluntarily consent, but

does not identify how this constrained his ability to refuse or impaired his ability to

appreciate the consequences of his consent. Indeed, Telcy later refused to sign a

written consent form, which demonstrates that he appreciated the consequences of

the search and that his will was not overborne. Given the totality of the

circumstances, we find no error, much less plain error, in the district court’s

finding that Telcy’s consent was voluntary.

Although Telcy testified that one officer drew his gun as they approached him, Detective 2

Tianga testified that officers did not draw their weapons until they entered the apartment. 

Crediting Detective Tianga’s testimony over Telcy’s, as it was permitted to do, the district court

found that, as Telcy exited his vehicle, the officers approached, identified themselves as police

officers, and told Telcy to remove his hands from his pants, that, at that point, the police still had

not drawn their guns and that the officers drew their guns for the first time as they entered the

apartment.

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Telcy’s second newly-raised argument is that, even if he gave the officers

valid consent to search his apartment, the officers exceeded the scope of his

consent when they searched the locked safe in his bedroom. Again, we find no

error, plain or otherwise.

When a defendant gives a general statement of consent, the scope of the

permissible search “is constrained by the bounds of reasonableness: what a police

officer could reasonably interpret the consent to encompass.” United States v.

Street, 472 F.3d 1298, 1308 (11th Cir. 2006). Permission to search an area for

narcotics “may be construed as permission to search any compartment or container

within the specified area where narcotics may be found.” United States v.

Martinez, 949 F.2d 1117, 1119 (11th Cir. 1992). Additionally, “[b]y describing

the location of the keys which would provide entry into [a locked area], [a

defendant] provide[s] additional evidence of his consent to the search.” United

States v. Milian-Rodriguez, 759 F.2d 1558, 1564 (11th Cir. 1985).

Here, Telcy gave the officers permission to search his apartment and did not

limit the terms of the search to exclude the safe. Further, given the context of the

requested consent, it was clear that further narcotics were the object of the search.

Telcy watched as Detective Tianga conducted a field test, which yielded a positive

result for cocaine, on the cellophane wrappers in his car. Detective Tianga

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confronted Telcy about the cocaine-encrusted wrappers and asked if there would

be anything else in his apartment.

Moreover, Detective Tianga asked Telcy where the keys to the safe were

located. Even assuming he did not know earlier, Telcy knew then that Tianga

intended to open the safe and examine its contents. Not only did Telcy fail to

object to a search of the safe, he told Tianga where to find the key. In short, Telcy

knew the object of the search and did not attempt to limit his consent. Under these

circumstances, it was reasonable to believe Telcy’s consent encompassed the safe

in his bedroom.

For all these reasons, the district court did not err in denying Telcy’s motion

to suppress the evidence found in his apartment.

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AFFIRMED.

Telcy’s argument that the fruits of the search must be excluded because officers did not 3

give him a Miranda warning before asking him to identify his apartment is foreclosed by United

States v. Jackson, 506 F.3d 1358, 1360-61 (11th Cir. 2007) (concluding, based on United States

v. Patane, 542 U.S. 630, 124 S. Ct. 2620 (2004), “that Miranda does not require the exclusion of

physical evidence that is discovered on the basis of a voluntary, although unwarned, statement”).

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