UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5883

CORTEZ DORIAN DOMINIE SUTTON,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

Richard C. Erwin, Senior District Judge.

(CR-95-137)

Submitted: October 15, 1996

Decided: November 18, 1996

Before MURNAGHAN, HAMILTON, and WILLIAMS,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William E. Martin, Federal Public Defender, Gregory Davis, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, Michael F. Joseph,

Assistant United States Attorney, Greensboro, North Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Cortez Dorian Dominie Sutton entered a conditional plea of guilty

to possession with intent to distribute cocaine base, reserving the right

to appeal from the district court's denial of his motion to suppress evidence. After sentencing, Sutton timely noted his appeal. We now

affirm.

During the suppression hearing, Detective Piner of the Guilford

County Sheriff's Department testified that, while working as a member of a drug interdiction team at the Amtrak Station in Greensboro,

North Carolina, he approached Sutton and identified himself to Sutton

as a police officer. After Sutton agreed to talk with Piner, Piner asked

whether Sutton was carrying any illegal drugs or weapons. Sutton

stated that he was not. Piner then requested Sutton's permission to

search his bag.

Piner testified that Sutton first asked whether Piner had a search

warrant, and, after Piner explained that he was asking for consent,

Sutton said, "Go ahead." Piner then patted down Sutton, and Agent

Kowalski searched Sutton's bag and discovered what later proved to

be cocaine base. Kowalski also testified that Sutton consented to the

search.

Sutton testified at the suppression hearing that he never gave his

consent. Rather, when asked for permission to search, he inquired,

"What if I say no." Piner then asked other questions, and Kowalski

proceeded to search Sutton's bag. However, Sutton did not object to

Kowalski's search of his bag.

The district court denied the motion to suppress, finding that consent was clear and that Sutton's question was not a refusal of consent

to search. Sutton appeals from this ruling.

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Whether consent was freely and voluntarily given is determined

after considering the totality of the circumstances surrounding the

consent. United States v. Mendenhall, 446 U.S. 544, 557 (1980). In

viewing the totality of the circumstances, there does not need to be

evidence "that the defendant knew of his right to refuse consent to

prove that the consent was voluntary." United States v. Lattimore, 87

F.3d 647, 650 (4th Cir. 1996) (en banc). Because"the voluntariness

of consent to search is a factual question, we must affirm the determination of the district court unless its finding is clearly erroneous." Id.

Sutton contends that his consent was not voluntary because he

inquired about what would happen if he refused to consent. As we

have previously noted, the officers' failure to explain that he could

refuse the search does not negate Sutton's consent. See United States

v. Wilson, 895 F.2d 168, 172 (4th Cir. 1990) (noting that "proof of

knowledge of a right to refuse [is not] the sine qua non of an effective

consent to search"); see also Schneckloth v. Bustamonte, 412 U.S.

218, 248-49 (1973). We find no clear error in the district court's finding that Sutton's inquiry concerning what happens if he withholds

consent did not amount to a refusal of consent.

Further, in light of the conflicting testimony concerning whether

consent was given, we defer to the district court's determination that

the officers' testimony (that Sutton said, "Go ahead") was more credible. See United States v. Taylor, 90 F.3d 903, 908 (4th Cir. 1996)

(deferring to a district court's factual determination unless clearly

erroneous). Also telling is Sutton's testimony that, although Sutton

saw Kowalski searching his bag, he did and said nothing to stop

Kowalski's search. Based on the totality of the circumstances, we find

that the district court's determination that Sutton consented to the

search was not clearly erroneous. Mendenhall, 446 U.S. at 557-58.

We therefore affirm the district court's order denying Sutton's

motion to suppress. 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

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