UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5147

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CALVIN HOMER COGDELL,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Asheville. Lacy H. Thornburg,

District Judge. (1:05-cr-00270)

Submitted: June 6, 2007 Decided: July 11, 2007

Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Fredilyn Sison, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,

Asheville, North Carolina, for Appellant. Gretchen C.F. Shappert,

United States Attorney, Jonathan A. Vogel, Assistant United States

Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Calvin Homer Cogdell pled guilty pursuant to a plea

agreement to possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1) (2000), and was sentenced to

forty-six months in prison. Cogdell’s guilty plea was conditioned

on his right to appeal the district court’s denial of his motion to

suppress firearms seized after a search of Cogdell’s home and

garage. On appeal, Cogdell challenges only the district court’s

denial of his motion to suppress, claiming police threatened him

with arrest if he refused to consent to the search and that the

totality of the circumstances compelled the conclusion Cogdell’s

consent to the search was involuntary. We affirm. 

Whether a defendant’s consent to a search is voluntary is

a factual question determined under the totality of the

circumstances and reviewed under the clearly erroneous standard.

See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973); United

States v. Jones, 356 F.3d 529, 533 n.* (4th Cir. 2004). The

Government has the burden of proving that consent was freely and

voluntarily given. Schneckloth, 412 U.S. at 222. When a

suppression motion has been denied, we review the evidence in the

light most favorable to the Government. See United States v.

Grossman, 400 F.3d 212, 216 (4th Cir. 2005). 

Despite Cogdell’s claim he felt coerced into consenting

to the search, no evidence was introduced at the suppression
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hearing that suggested the officers used coercive tactics to gain

his consent. See United States v. Mendenhall, 446 U.S. 544, 558

(1980) (finding that courts should consider age, maturity, and

intelligence of defendant in determining whether consent to search

was voluntary); United States v. Lattimore, 87 F.3d 647, 650 (4th

Cir. 1996) (en banc) (same; noting that “conditions under which the

consent to search was given” are also relevant). Rather, the

evidence established that Cogdell was a forty-one year old man who

had extensive experience dealing with law enforcement since he had

several prior arrests and gave police consent to search his home

five times in the year and a half prior to the July 2004 search.

The evidence also established that officers came to Cogdell’s home

in the daytime, in plain clothes, and never brandished their

weapons, and that police calmly asked Cogdell to step outside where

they spoke to him for a brief time in a normal tone of voice. 

We find the mere fact police informed Cogdell at the

beginning of their “meeting” that there was an outstanding warrant

for his arrest did not render Cogdell’s subsequent consent to the

search involuntary. First, police truthfully informed Cogdell of

the arrest warrant’s existence. See United States v. Pelton, 835

F.2d 1067, 1072-73 (4th Cir. 1987) (holding that coercion does not

exist merely because law enforcement informs a suspect of truthful,

yet unpleasant, circumstances). In any event, Cogdell was already

aware of the warrant’s existence when police came to his home on
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July 9, 2004. Moreover, the evidence established that police

informed Cogdell about the warrant as they were discussing

Cogdell’s willingness to provide police information about the drug

conspiracy they were investigating, and not later in the

conversation when they were asking permission to search Cogdell’s

home. After requesting Cogdell’s permission to search his home,

police informed Cogdell their ability to search his home was up to

him, but Cogdell nonetheless consented. Moreover, the fact that

Cogdell stated he might not cooperate in the investigation of the

drug conspiracy lends support to the conclusion he did not feel

coerced when dealing with the police. 

Based on the foregoing, we find that, under the totality

of the circumstances, the district court properly found Cogdell

voluntarily consented to the search of his garage and home.

Accordingly, we affirm the court’s denial of Cogdell’s motion to

suppress and Cogdell’s conviction and sentence. We dispense with

oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED