* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### March 22, 2006 Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. CHRISTOPHER DALE MASTERS, Defendant - Appellant. No. 05-7031 (D.C. No. 04-CR-104-W) (E.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and LUCERO , Circuit Judges. **
Defendant-Appellant Christopher Dale Masters appeal s the denial of his motion to suppress evidence obtained during a searc h of his home. Mr. Masters entered a conditional plea of guilty to one count o f maintaining a place for the purpose of manufacturing, distributing and using me thamphetamine in violation of 21 U.S.C. § 856(a)(1). Fed. R. Crim. P. 11(a)(2 ). After an evidentiary- 2 -

hearing, the district court denied the motion to suppress in an oral ruling. The district court held that Mr. Masters voluntarily co nsented to the search and was not impaired at the time he gave his consent. The district court’s ruling rests largely upon its determination of the credibility o f the witnesses. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background On the evening of February 23, 2004, Bureau of Alco hol, Tobacco and Firearms (“ATF”) Special Agent Knopp, two ATF Task Force Officers, and McCurtain County, Oklahoma Sheriff Willeby visited Mr. Masters’ rural residence located east of Broken Bow, Oklahoma. Ac cording to the officers, the purpose of the visit was to interview Mr. Masters c oncerning his potential association with and knowledge of drug trafficking activities. Upon arrival, the officers noted several trailers, an outbuilding, bo ats, and vehicles surrounding the house on Mr. Masters’ property. Agent Knopp informed Mr. Masters that he was in pos session of information linking Mr. Masters to illegal drug man ufacturing, and he asked Mr. Masters for permission to look around the house andoutbuildings. Mr. Masters agreed, and accompanied Agent Knopp, Sheriff Willeb y, and one of the Task Force Officers, Detective Park, on a walk through o f the premises. The officers’- 3 -

first stop was an outbuilding. Upon their initial arrival at Mr. Masters’ property, they had observed another person exiting from that same building. Upon entering, Detective Park identified several items i n plain view that were consistent with the manufacture of methamphetamine. Mr. Masters claimed that he had no knowledge of the items and stated that th e man seen exiting the building was most likely responsible. The officers next asked Mr. Masters for permission to enter his residence to talk, and he assented. They entered the home and e ncountered several other people in the living or dining room area. The agen ts secured a handgun in plain view on a shelf. In order to obtain more privacy, Agent Knopp asked Mr. Masters to lead them to his bedroom. Upon entering, the of ficers noted a video surveillance monitor perched atop a gun safe. Dete ctive Park asked to look through some of Mr. Masters’ dresser drawers, but M r. Masters objected and Detective Park did not investigate the drawers. Ag ent Knopp asked Mr. Masters if he could inspect the open gun safe, but Mr. Mast ers closed the door and spun the combination dial. At that point, Agent Knopp n oticed a handgun in a closet in Mr. Masters bedroom. Later, Sheriff Willeby found another handgun in the dining room. Agent Knopp advised Mr. Masters that it was his belief that the gun safe contained either illegal drugs or firearms, oreven both, and he asked for Mr. Masters’ permission to search it.- 4 -

At some point, Mr. Masters suggested he should talkwith an attorney. According to the government, Agent Knopp told Mr. M asters that he had a right to do so. Mr. Masters apparently picked up his tel ephone and began to dial, but for some reason did not complete the call. Mr. Mas ters contends that this was only one of numerous instances where he indicated h is desire to call his attorney. He also contends that the law enforcement officers prevented him from calling his attorney by suggesting that if he did so, they woul d force his friends and family, including his one-year old daughter, to stand outsi de in the cold and rain while they secured a search warrant. Agent Knopp prepared a consent to search form and r ead it to Mr. Masters. Mr. Masters debated whether to sign the document an d even suggested that the officers search the outbuildings while he considere d whether to consent to a search of his home. After vacillating for a short time, Mr. Masters signed the consent form. Thereafter, the officers found sever al guns, two large baggies containing white powder (later determined to be methamphetamine), and cash in Mr. Masters’ safe. Mr. Masters then agreed to show the officers where in his home he kept illegal drugs and informed them of where on the pre mises they could locate other illegal drugs. The officers searched the premises for some time, and departed without arresting Mr. Masters.- 5 - Discussion On appeal, Mr. Masters argues that the warrantless search of his home violated the Fourth Amendment. He contends that hi s consent was not voluntary because law enforcement disregarded his requests fo r counsel and threatened to damage his home if he refused consent and made themobtain a warrant. He further argues that any consent was preceded by an unlawful search and seizure because he was not free to leave and law enforcemen t actually seized a weapon. Mr. Masters also claims that he was in a state of d iminished capacity–heavily medicated, and compromised by various health condit ions. He also maintains that he acted out of concern for his guests and infant d aughter at the home. Upon reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government. United States v. Rosborough , 366 F.3d 1145, 1148 (10th Cir. 2004). Determining cred ibility of witnesses and assigning the weight to be given to evidence is the province of the district court, and we accept the district court’s factual findings unless they are clearly erroneous. Id. We review de novo though, the “ultimate determination of reasonableness under the Fourth Amendment.” Id. As an initial matter, we note that the officers did not have a warrant to search Mr. Masters’ home. While a warrantless sear ch may in other circumstances stand in violation of the Fourth Amen dment, it is well settled that- 6 -

“one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is cond ucted pursuant to consent.” Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973). Valid consent is that which is “freely and voluntarily given.” Id. at 222 (internal quotations omitted). Whether a defendant has freely and voluntarily give n his consent to a search is a question of fact and is determined from the totality of the circumstances. United States v. West , 219 F.3d 1171, 1177 (10th Cir. 2000). The district court determined that Mr. Masters cons ented to the search. First, it determined that Mr. Masters was not suffe ring from diminished capacity due to his intake of medication or his other claime d medical conditions. The court took into account Mr. Masters’ intelligence, his strong memory of the situation, repeated requests for counsel, and a rev iew of his medical records. Mr. Masters asked for counsel because he “knew what his rights were,” and he was feeling threatened by events. Motion Hrg. Tr. at 2 05. Second, the district court found that Mr. Masters failed to make a clear and u nequivocal request for counsel. We agree with the district court that the ATF was not required to provide Mr. Masters with an attorney. The consent form that Mr. Masters signed supports the district court’s conclusion that Mr. M asters at all times knew that he could call an attorney, yet he did not do so. see id. at 186. Lastly, the district court determined that Mr. Masters failed to show th at the officers had coerced- 7 -

him into signing the consent form. The court notedthat, unlike Mr. Masters’ witnesses’ testimony, Agent Knopp was “very believable,” and the “clear and positive testimony” showed that “Mr. Masters’ conse nt was unequivocal, that it was intelligently given, that it was specific, and it was freely given.” Id. at 208. The district court’s findings on consent are supported by the record. The government met its burden to show that consent was voluntary. Mr. Masters made the decision to cooperate with the agents and show them what they wanted to see. We reject the notion that Mr. Masters’ con sent was the product of an unlawful seizure. Even though Mr. Masters was in h is home, and five law enforcement officers were present, the testimony cr edited by the district court indicates that the situation was orderly and Mr. Ma sters was cooperative while weighing his options, and then deciding to cooperat e fully with law enforcement. See United States v. Spence , 397 F.3d 1280, 1283-84 (10th Cir. 2005). Indeed, Mr. Masters was not arrested after the discovery of incriminating evidence. Consent is not rendered involuntary merely because Mr. Masters was told that if he refused consent, law enforcement would have to s eek a search warrant, and the home’s occupants would have to be removed to ensure no destruction of evidence. AFFIRMED. Entered for the Court
Paul J. Kelly, Jr.- 8 - Circuit Judge