In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2705

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANK D. MCGRAW,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 06 CR 28—Theresa L. Springmann, Judge.

ARGUED JANUARY 9, 2009—DECIDED JULY 2, 2009

Before MANION, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge. While executing a search warrant

for drugs inside a Fort Wayne, Indiana apartment

building, police officers noticed that the building had

several housing-code violations. Police called a neighborhood code-enforcement officer, who arrived and determined that the apartment building must be condemned.

That determination required officers to go door-to-door

and notify the building’s residents that they needed to

leave their apartments. When Frank McGraw, the second-
2 No. 08-2705

floor tenant, arrived on the scene, officers instructed him

to secure his dog and collect the belongings he would

need for a few days. They also explained their need to

inspect his apartment for housing-code violations and to

search for potential stragglers. McGraw consented to the

search three times before leaving the apartment building

with his dog. During that search, police observed

narcotics in plain view, and McGraw was charged with

possession of crack cocaine.

McGraw moved to suppress the evidence, claiming

that any consent he gave was not voluntary but instead

constituted acquiescence to the officers’ display of authority. The district court denied the motion, finding that

McGraw’s consent was voluntary. McGraw then entered

into a conditional plea agreement, in which he waived

his right to appeal sentencing determinations but preserved his right to appeal the court’s suppression ruling.

At sentencing the district court classified McGraw as a

career offender under the guidelines and sentenced him

to 262 months’ imprisonment. On appeal McGraw challenges the court’s suppression ruling and its determination that he qualified as a career offender.

We affirm. The district court did not clearly err in

finding that McGraw voluntarily consented to the officers’ search. The court analyzed the totality of the circumstances and determined that despite the way in which

some of the officers phrased their request to

search McGraw’s unit, McGraw voluntarily consented to

their search. Because the court’s conclusion is entirely

plausible in light of the record viewed in its entirety, the
No. 08-2705 3

1 The historical facts concerning the search are taken from

the district court’s opinion denying McGraw’s motion to

suppress. McGraw does not challenge these findings of fact

on appeal.

court properly denied McGraw’s motion to suppress.

Further, we hold that McGraw waived his right to challenge the district court’s sentencing determination.

I. Background

A. Officers Search McGraw’s Apartment1

On April 6, 2006, Officer Squadrito, Officer Musi, and

other officers executed a search warrant for drugs in the

third-floor unit of an apartment building in Fort Wayne,

Indiana. In the process of searching the apartment and

arresting its inhabitants, officers noticed several housingcode violations. They contacted Mark Salomon, a neighborhood code-enforcement officer, who arrived and determined that the building must be condemned because,

among other violations, it lacked a working furnace.

Because this decision required the officers to board up

the building until the landlord made the necessary

repairs, the officers first had to notify the residents of the

condemnation and ensure that everybody vacated the

building. Frank McGraw, the second-floor tenant, was

absent, but officers could hear a large dog barking

behind his door. Officers soon learned that McGraw was

across the street, and they summoned him to his apartment. By the time McGraw arrived, Salomon had
4 No. 08-2705

attached a “condemned sign” to the front of the building.

A crowd of bystanders had also gathered, and a

S.W.A.T. team from the third-floor raid stood by.

Salomon and Musi greeted McGraw on the building’s

front porch. McGraw asked what his apartment had to

do with the third-floor search, and Salomon answered

that the entire building had been condemned. Salomon

twice explained to McGraw that officers “would need to

go into his apartment to do a[n] inspection inside of his

apartment to look for other housing code violations.”

Salomon also told McGraw that the dog prevented the

officers from conducting this inspection. Salomon thus

offered McGraw the choice to retrieve his dog or have

Animal Control do it for him. McGraw chose the former

and commented that his “dog did not like people in

uniform,” a statement the district court interpreted as a

joke. As McGraw approached the building’s entrance,

Squadrito told him “to retrieve his dog and his

belongings, because it was going to be a day or two” before

McGraw could reenter the condemned building. McGraw

responded that officers were “welcome to go up there

with him” and reiterated that his dog, a “pit bull[,] doesn’t

like police officers.” Inside the building but outside his

apartment, McGraw then spoke with Musi, who asked,

“Sir, do you mind if we go in with you to make sure there’s

nobody else in there?” McGraw responded, “Go ahead if

you want to search,” or “Yeah, go ahead and come in

and search if you want to.” Squadrito, however, told his

fellow officers to stay outside because the pit bull threatened their safety.
No. 08-2705 5

McGraw entered his apartment, and a few minutes

passed while he searched for his dog’s leash. Because of

the delay, police told McGraw to leave his apartment.

McGraw quickly leashed his dog with his cell-phone cord

and exited the apartment, leaving his door ajar and his

lights and television on. Once outside the building,

McGraw again briefly spoke with Squadrito, who told

McGraw that police “were going to check his apartment.”

McGraw responded that his door was open and that they

were “more than welcome” to enter but that nobody

remained inside. Squadrito explained that police would

nonetheless have to make sure before they boarded up

the building. McGraw then left the premises with his dog.

Squadrito entered McGraw’s apartment to search for

stragglers, while Salomon searched the unit for other

housing-code violations. In McGraw’s bedroom Squadrito

saw in plain view a digital scale with a white residue, a

plastic bag containing a green weed-like substance, and

an open gym bag containing money and suspected crack

cocaine. Squadrito had Salomon photograph the suspected narcotics, and they quickly exited the apartment.

Police later obtained a search warrant and recovered

the evidence.

B. The Proceedings Below

McGraw was charged with possession with intent to

distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1).

He moved to suppress the evidence obtained in the search

of his apartment. The district court concluded that the

officers had performed a warrantless search without
6 No. 08-2705

exigent circumstances and that suppression therefore

turned on whether McGraw had voluntarily consented

to the search. The court held that “a totality of the circumstances shows that the Defendant voluntarily gave

permission to the officers.” The court found that McGraw

consented first to Squadrito’s request to search and then

to Musi’s before entering his apartment to retrieve his

dog, but that the scope of those consents was limited to

a search with McGraw present. The court further held

that McGraw extended the scope of his consent to encompass a search outside of his presence when, as he

exited the building with his dog, he told Squadrito

that officers were “more than welcome” to search his

apartment.

The court rejected McGraw’s argument that any

consent he gave was merely acquiescence to the officers’

display of authority and therefore not voluntary. The

court believed that the facts “present a close case” but

nonetheless concluded that the officers did not claim

authority to search and that any consent was voluntarily

given. As the court explained,

This finding rests primarily on the facts that [McGraw]

was not a suspect and had no reason to think that he

was a suspect, that [McGraw] gave consent to the

officers to come with him into his apartment twice,

that [McGraw] invited them in a third time as he

was leaving, and that the interactions between

[McGraw] and the officers had been calm and cooperative.

The district court also considered the officers’ comments.

It construed Salomon’s statement of a “need to go inside”
No. 08-2705 7

to inspect the apartment as a request rather than a command because it had no coercive effect and did not

imply that Salomon suspected McGraw of wrongdoing.

The court interpreted Squadrito’s statement that police

“were going to check his apartment” as a “follow-up” to

McGraw’s first invitation into his apartment or, alternatively, as a suggestion of authority based only on

McGraw’s previous consents. The court also highlighted

that Musi’s question whether officers could enter

McGraw’s apartment implied that permission could be

refused, yet McGraw nevertheless welcomed officers

into his apartment. Finally, the court noted that “the total

lack of any statement by [McGraw] implying that he

objected to the officers’ search of his apartment also

suggests he voluntarily consented to the search of his

apartment.”

Having lost the suppression battle, McGraw entered a

conditional plea of guilty, waived his right to challenge

any aspect of his sentencing, and preserved his right to

challenge the district court’s denial of his motion to

suppress. At sentencing the district court classified

McGraw as a career offender under § 4B1.1 of the United

States Sentencing Guidelines and sentenced him to 262

months, the low end of the applicable guidelines range.

II. Analysis

This case presents two issues on appeal: first, whether

the district court clearly erred in determining that

McGraw voluntarily consented to the search of his apartment, and second, whether McGraw may challenge the
8 No. 08-2705

We presume for purposes of this appeal that the search was 2

constitutional only if McGraw voluntarily consented to the

officers’ entry. The government has not disputed the district

court’s finding that no exigent circumstances justified this

warrantless search, nor has the government suggested that

the special-needs or administrative-search doctrines are relevant.

district court’s classification of McGraw as a career offender. Because we conclude that the district court

did not clearly err in its suppression ruling and that

McGraw waived his right to challenge his sentencing,

we affirm.

A. The District Court’s Suppression Ruling

The Fourth and Fourteenth Amendments safeguard the

“right of the people to be secure in their . . . houses . . .

against unreasonable searches and seizures.” A warrantless

search of a suspect’s house without exigent circumstances

is presumptively unreasonable, Payton v. New York, 445

U.S. 573 (1980), and the exclusionary rule generally requires suppression of the evidence obtained from such

searches. However, this general rule is subject to wellrecognized exceptions, including the suspect’s voluntary

consent to the search. See, e.g., Schneckloth v. Bustamonte,

2

412 U.S. 218 (1973). Consent-search cases distinguish

between voluntary consent and consent resulting from

duress, coercion, or acquiescence to authority. This is

a “question of fact to be determined from the totality of

all the circumstances,” id. at 227, and the government
No. 08-2705 9

bears the burden of proving voluntary consent by a

preponderance of the evidence, United States v. Basinski,

226 F.3d 829, 833 (7th Cir. 2000). Factors bearing on this

inquiry include:

(1) the person’s age, intelligence, and education,

(2) whether he was advised of his constitutional rights,

(3) how long he was detained before he gave his

consent, (4) whether his consent was immediate, or

was prompted by repeated requests by the authorities,

(5) whether any physical coercion was used, and

(6) whether the individual was in police custody

when he gave his consent.

United States v. Raibley, 243 F.3d 1069, 1075-76 (7th Cir.

2001); see also Schneckloth, 412 U.S. at 226 (listing essentially

the same factors).

In this case the district court concluded that the government satisfied its burden of proving voluntary consent.

The parties agree that we review that determination for

clear error. See Raibley, 243 F.3d at 1076; United States v.

Nafzger, 965 F.2d 213, 216 (7th Cir. 1992). “A finding

is clearly erroneous when although there is evidence to

support it, the reviewing court on the entire evidence is

left with the definite and firm conviction that a mistake

has been committed.” United States v. Rice, 995 F.2d 719,

722 (7th Cir. 1993). “Where there are two permissible

views of the evidence, the factfinder’s choice between

them cannot be clearly erroneous.” Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 574 (1985). Stated differently, “ ‘[i]f the district court’s account of the facts is

plausible in light of the record viewed in its entirety, we
10 No. 08-2705

may not reverse that decision even if we may have

decided the case differently.’ ” Raibley, 243 F.3d at 1076

(quoting Cent. States, Se. & Sw. Areas Pension Fund v. Kroger

Co., 226 F.3d 903, 910 (7th Cir. 2000)).

We agree with the district court that this is a close case.

On the one hand, considerable evidence suggested that

McGraw voluntarily consented to the officers’ search. For

instance, Musi specifically requested the right to enter

McGraw’s apartment, signaling that McGraw may withhold consent. Yet McGraw readily allowed Musi to enter.

Further, McGraw consented to Squadrito’s entry both

before and after he secured his dog. McGraw also left his

door ajar and his lights on, and told Squadrito of this

fact as he left his apartment building, thus suggesting he

approved of the officers’ entry into his apartment. Moreover, the district court found that the tone of the interaction between McGraw and the officers at all times remained calm and cooperative, and the evidence supports this finding. Finally, McGraw even joked with

police about his dog’s dislike of officers, suggesting (as

the district court held) that McGraw was not overwhelmed by any show of authority.

On the other hand, there is also some evidence that

weighs against a finding of voluntariness. Most importantly, in their encounter with McGraw, both Squadrito

and Salomon arguably implied that they had a right to

search McGraw’s apartment without his permission.

Further, Squadrito testified that if he were unable to locate

McGraw, he “would have made the decision to have

contacted the landlord, unlock the door, and made sure
No. 08-2705 11

there [were] no human occupants within the dwelling.”

Had a search resulted merely from the landlord’s

consent, the exclusionary rule might be triggered. See

Chapman v. United States, 365 U.S. 610 (1961).

Faced with competing evidence, the district court looked

to the “totality of the circumstances” in determining

whether McGraw’s consent was voluntarily given. The

court treated Salomon’s and Squadrito’s suspect language

as a “factor [that] weighs against a finding of voluntary

consent,” and suggested that even in the presence of such

language, the proper inquiry is “whether such claims [of

authority] outweigh the other factors suggesting consent

was voluntary.” That is precisely the approach that we

outlined in United States v. Nafzger. In that case we

referred to an improper claim of police authority as a

“factor” that must be “weigh[ed] . . . along with the other

factors that Schneckloth . . . directs courts to weigh in

totality-of-the-circumstances cases.” Nafzger, 965 F.2d at

216; see also Bolden v. Se. Penn. Transp. Auth., 953 F.2d 807,

824 (3d Cir. 1991) (en banc) (“If the party conducting the

search claimed the authority to search without consent,

that factor weighs against a finding of voluntary consent.”).

The district court concluded that the officers’ arguable

assertions of authority did not outweigh the evidence

supporting the conclusion that McGraw’s consent was

voluntary, namely, McGraw’s conduct, his calm cooperation, and his broadly phrased consents following Musi’s

unambiguous request to inspect his apartment.

The court’s finding that McGraw voluntarily consented

to the officers’ search is certainly “plausible in light of
12 No. 08-2705

the record viewed in its entirety.” Raibley, 243 F.3d at 1076.

We are not left with “the definite and firm conviction

that a mistake has been committed.” United States v. Rice,

995 F.2d 719, 722 (7th Cir. 1993). Keeping in mind the

deference due the district judge, who is in a superior

position to observe the witnesses and determine exactly

what happened and how it happened, we conclude that

the court did not clearly err.

McGraw, however, argues that Nafzger compels the

opposite result. We disagree. In Nafzger, police went to

Nafzger’s farm and asserted the right to search his property for a stolen pickup truck based on a legally insufficient search warrant. Nafzger was permitted to read

the search warrant and then led officers to a toolshed

where the stolen truck was parked. Nafzger later moved

to suppress the evidence, and the district court denied

his motion. We reversed, holding that Nafzger merely

acquiesced to the search based on the officers’ false

claim of authority. Nafzger is distinguishable for several

reasons. First, the officers in this case did not make

any comparable claim of authority akin to asserting they

had a warrant; nor did they, as in Nafzger, actually produce

one. Second, even if Squadrito and Salomon did claim

authority to search—a finding, as we explained above,

the district court rejected—their assertions were

tempered by Musi’s question and McGraw’s actions. Third,

Nafzger does not suggest that an officer’s assertion of

authority ends the factual inquiry. On the contrary, our

opinion recognized that the district court must apply a

totality-of-the-evidence analysis even when faced with

officers’ claims of authority. Nafzger, 965 F.2d at 216. Here,

the district court did precisely that.
No. 08-2705 13

B. McGraw’s Waiver of His Right to Appeal His Sentence

McGraw also tries to challenge his sentencing classification as a career offender, which increased his guidelines range from 92-115 months to 262-327 months. He

argues that fleeing from an officer and intimidating an

officer are no longer crimes of violence after Begay v.

United States, 128 S. Ct. 1581 (2008). We do not address

the merits of this question, however; in his plea agreement, McGraw waived his right to appeal his sentence. A

knowing and voluntary appeal waiver precludes appellate

review, United States v. Jones, 381 F.3d 615, 619 (7th Cir.

2004), and McGraw admits that his plea agreement included an unambiguous waiver of his right to challenge

the district court’s sentencing determinations. He nonetheless argues that because he did not anticipate Begay,

he could not have knowingly and voluntarily waived

his right to appeal based on a Begay-type argument.

We have consistently rejected arguments that an

appeal waiver is invalid because the defendant did not

anticipate subsequent legal developments. In United

States v. Lockwood, 416 F.3d 604 (7th Cir. 2005), for

example, we considered a challenge from a defendant

sentenced before the Supreme Court declared the sentencing guidelines advisory in United States v. Booker, 543

U.S. 220 (2005). The defendant argued that “his appeal

waiver is invalid because the parties and the court failed

to anticipate Booker.” Lockwood, 416 F.3d at 607. We

instead concluded that

Lockwood knowingly and intentionally waived his

right to appeal his sentence for any reason. . . . The fact
14 No. 08-2705

that Lockwood, the government, and the district

court failed to anticipate Booker or its sweeping effect

on federal guidelines sentencing does not change this

conclusion. There simply is nothing special about

Booker that would preclude enforcement of an otherwise valid appeal waiver. 

Id. at 608 (citations omitted).

Our position in Lockwood is consistent with our longexpressed view that plea-bargain appeal waivers involve

risk: 

By binding oneself one assumes the risk of future

changes in circumstances in light of which one’s

bargain may prove to have been a bad one. That is the

risk inherent in all contracts; they limit the parties’

ability to take advantage of what may happen over

the period in which the contract is in effect. 

United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005)

(also rejecting the argument that Booker created a “sea

change” in the law and commenting that in any event, a

“ ‘sea change’ exception to the rule . . . would be hopelessly vague”). We also noted that our conclusion could

differ had the defendant “insisted on an escape hatch

that would have enabled him to appeal if the law

changed in his favor after he was sentenced.” Id.

Lockwood and Bownes thus require that we affirm. By

entering into an appeal waiver that did not include an

escape hatch of the kind we contemplated in Bownes,

McGraw relinquished his right to challenge his sentence

based on intervening Supreme Court decisions. Moreover,
No. 08-2705 15

the case for recognizing any exception after Begay is far

weaker than the case for recognizing an exception after

Booker. After all, Begay was a statutory-interpretation

case, whereas Booker invalidated the entire mandatoryguidelines system on constitutional grounds. If a defendant’s plea agreement remains knowing and voluntary

despite Booker, Begay cannot command a contrary result.

Accordingly, because McGraw’s waiver of his right to

appeal his sentence is valid, we do not reach the merits

of McGraw’s sentencing argument.

AFFIRMED.

7-2-09