The Honor able Micha el H. Watson, United States District Judge for the Souther n District * of Ohio, sitting by

desig nation. NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 09a0236n.06 F iled: Marc h 30, 2009 No. 07-6066 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT
UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. CHARL ES EDDI E YOUN G, De fe nd ant- Ap pe lla

nt. )

) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN NESSEE

Be fo re : M AR T I

N a n d C OO K, C i rc u i tJ u d ges ; an d W AT S ON , Di s t ri ct J u d ge *
MI CHAEL

H. W ATSON, Dist rict J udg e. This is a dispute about whe ther the district c ourt p ro p er l y d en i edDe fe n d an tC h ar l es Yo u n g’s m o t i o nt o s u p p re s s ev i d en ce gat h e r edd u ri n g a
war rantless sea

rch of his property
. W e h o l d t h at the district court did not err in finding that De fe nd ant f

re e ly and vo lun tari ly

g a ve c on se nt a

nd a ff ir m th e jud g me nt o f t

he dis tr ic t c ourt
. I.
On J uly 17, 2006, Charles Youngwas indicted by a g rand jury

of the United States District Court fo r t he Wes te rn

Di str ic t of Ten ness e e , E a ste rn Di vis ion fo r o ne c ount o f b e inga fe lon inNo. 07-6066

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An ag ent testifi ed that, duringa pre vious arre st, Defe ndant attempted to fle e law 1 enfor ceme nt on an all-ter rain ve hicle with a small child on his lap.

- 2 - po sse ssi on

of a fi re arm , in

vio lati on of 18 U. S.C. § 9 22 (g ), and on e c ount o f b e inga

fe lon in possession of ammunition, in vi olation of 18 U.S.C. § 922(g ).
The district cour

t held a hearing on Def

endant’ s motion to suppress evide nce on D ece mber 20, 2006. Special ag ents of the B urea u of Alcohol, Tobac co, Firea rms, and Explosi ves (“ ATF ”), a n inv e sti g a tor , a

nd De fe nd ant, a mon g oth e rs , te sti fi e d. I n d e nyingDe fe nd ant ’s motio n to su pp re ss, the district c ourt discussed a substantial numbe r of re asons why it found his consent was f ree ly and voluntarily

g iven.
On Februa

ry 8, 2007, Def

endant e ntere d a conditional plea pursuant to Rule 11(a) (2) of the Fe dera l Rules of Criminal Proc edure rese rving his r ight to a ppeal the district court’s orde r deny ing the motion to suppress. This appeal f ollowed.
II.
On Mar c h 8 , 2 0 0 6 , D e f

e n d an t w a s s u mm o n e d

to th e Ca r r o ll Co u n ty , T e n n e s s e e , Sh e riff’ s Depa rtment by ATF ag ents as a r

use to allow ag ents to execute an a rre st warr ant in a contro l l ed environment. A ca ll was place d to Defe n d an t i n fo rming him he could come to the Sher iff’s

1 Depa rtment to claim g uns previously seized from him.No. 07-6066

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- 3 - Def endant a rrived at the Sheriff’ s Depa rtment with his wife, Tammy Young , and their young daug hter. Sherif

f’s de puties g ree ted Def

endant and took him to a bac k room separ ate f rom his wife
and da ug hte r. I n th e ro om, thr e e AT F sp e c ia l ag e nts , Ag e nts L ane , A lle n, and Es te va n, we re in p la in clothes with h o l s t er ed g uns and display ed badg es. These ag ents informed D efe ndant they had a fede ral a rre st warr ant for him and pla ced him under arr est. After

secur ing D efe ndant, Ag ent L ane
re a d D e fe nd ant h is Miranda rig hts. The ag ents explained to Def endant that he was unde r ar rest for be ing a fe lon in po sse ssi on of a fi re arm . I mme diate ly up on c on c lus ion of his Miranda ri g hts , Def endan t as s er t ed that he was not a drug deale r and r epeated this statement throug hout the questioning w ith the ag ents.
At so me po int

duri ngthi s q

ue sti on ing , D e fe ndant was ask e d b y the a g e nts fo r c on se nt t o
sear ch his house for

drug s. Defe ndant alleg edly verba lly consente d
. He wa s then asked if any firea rms wer e pre sent on the prope rty . Def endant a lleg edly

told the a g ents there was a firea rm in the truck on his prope rty

and conse nted to allow the ag ents to retrie ve it.
The a g ents furthe r advised D efe ndant they planned to take him to his house to r etrieve the g un and his presc ription me dications, and then take him be fore a mag istrate judg e in Memphis. The ag ents informed Defe ndant’s wife of what was happe ning. D efe ndant re peate dly asked to not have his da ug hte r s e e him

in h and c uf

fs and the a g e nts a g re e d to tr

y to f a c ili tate thi s r e qu e st.
The a g ents then re trieved a consent form and fill ed it in. Def endant sig ned the c onsent form prior to the sea

rch of his house. T h e en tirety

of the discussion at the Sher iff’s De partment lastedNo. 07-6066

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- 4 - approximately

thirty minutes. The t hree ag ents and De fenda nt then followed Tammy

Young to the house. I n the drivew ay

of the prope rty , the addr ess on the conse nt form was modified a nd the numbers of the addre ss were darke ned or bolded. At the property , the g un was re cover ed fr om the truck. The ag ents also retrie ved Defenda nt’s presc ription medications. The house was searc hed; no drug s were found, but ammunition was discovere d on the prope rty
. Def end an t t es t i fied he was surpr ised by his arre st and confuse d by the many

ag ents and deputies comingin and out of the room. He states he wa s upset by his daug hter be ing at the Sheriff’ s De pa rtme nt. Al tho ug h he do e s no t re c a ll be ing re a d h is Miranda ri g hts , h e ma int a ins he wa s to ld by Ag ent Allen he w as g oing to pr ison for fifte en y ea rs t o life and that he could help himself by telling a g ents information. He also alleg es the a g ent said that he w ould not be char g ed if he told the ag ents wher e any

g uns were . He f

urt h er s t at ed he had no re collection of g iving ve rbal c onsent or sig nin g a c on se nt f or m, b ut a dmi tte d it wa s his sig natur e on the fo rm . De fe nd ant we nt o n to dis c us s his lim ite d n int

h g ra de e du c a tio n and his me dic a l c on dit ion s, sp e c if ic a lly an a ne ur y sm that a lle g e dly makes him forg etful and c onfused.
III
. I n revie wing the district court’s denial of a motion to suppress, we r eview the district court’s fa c tua l fi nd ing s fo r c le ar e rr or and its le g a l c on c lus ion s de novo
. E.g. , United St ates v. Hudson , 405 F .3 d 4 25 , 4 31 (6 th C ir . 2 00 5) ; Un ite d Sta te s v. Gi llis , 358 F.3d 386, 390 ( 6th Cir. 2004), c e rt. denied , 543 U.S. 856 (2004).No. 07-6066

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- 5 - “While we re view the de termination of the ultimate question of whe ther ther e wa s consent de novo , we must aff

ord due w eig ht to the fac tual infere nces and cre dibilit y deter minations made by the district court.” United States v. Moon , 5 1 3 F. 3 d 5 2 7 , 5 3 6 -3 7 (6 t h C i r. 2 0 0 8 ) ( ci t i n g United States
v . Ca ru the rs , 458 F.3d 459, 464 (6th Cir. 2006) ). Where a motion to s uppress is denied by a district court, “ we c onsider the e vi dence in the light most favor able to the g overnme nt.” United States v. Carter , 378 F.3d 584, 587 ( 6th Cir. 2004) (en ba nc) ( citation omitted).
I t is well-settled that a pe rson m ay waive his F ourth Amendment rig hts by consentingto a sea

rch. D a v is v . U

n ite d States , 328 U.S. 582, 593-94 (1946). Consent to a sear ch “ma

y be in the for

m of words, g esture, or

conduc t .” United Sta te s v . G rif fin , 530 F.2d 739, 742 ( 7th Cir. 1976)
. I n whateve r for m, consent has eff ect only if it is g iven freely

and voluntarily
. Bumper v . North C arolina , 3 91 U. S. 543, 548 (1968).
Carter , 378 F.3d at 587. “[W ]hether a c onsent to a sea rch w as in fac t ‘voluntary ’ or wa s t h e p ro duct of dure ss or
coer cion, express or implied, is a question of fa ct to be dete rmined fr om the totality of all the circ umstances.” Schnec kloth v. Bustamont e , 412 U. S. 218 , 2 27 (1 97 3) ; see also Moon , 513 F.3d at 53 7; United States v. Iv

y , 1 65 F .3 d 3 97 , 4 02 (6 th C ir . 1 99 8) . In th is i nq uir y , th e Cou

rt sh ou ld consider the circ umstances surrounding the sear ch for “more subtle forms of coer cion th at m i ght flaw [an individual’s] judgment.” Ivy , 1 6 5 F. 3 d at 4 0 2 (c i t i n g United States v. W atson , 423 U.S. 411, 424 (1976))
. Severa l fac tors should be examined to determine whether consent is valid, including the ag e, intellige nce, an d education of the individual; whether the individualNo. 07-6066

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- 6 - understands the rig ht to refuse to consent; whethe r t he indi vidual understands his or her c onstitut ional rig hts; the leng th and nature of detention; and the use of coe rcive or punishing c onduct by

the police. United States v. Elkins , 3 0 0 F. 3 d 6 3 8 , 6 4 7 (6 t h C i r. 2 0 0 2 ) ( qu o t i n g United States v. Riascos- Suarez , 73 F.3d 616, 625 ( 6th Cir. 1996)).
I V.
Con sid e ri ng the va

ri ou s tes tim ony and a ll the c ir c ums tanc e s, the dis tr ic t c ourt did no t e rr in finding that Def

endant f ree ly and voluntarily

consente d to the sear ch of his prope rty
. The e vidence
c o n c e r n i n g t h e v e r

b a l an d s u b s e qu e n tw r i t t e nc o n s e n tw a s p r o v i d e d i nt h e f o r m o f t e s t i m o n y b y, int e r a lia , two ATF ag ents, an investig ator, a nd the Def

endant. Althoug h Def

endant c laims he does not remembe r g iving c onsent nor sig ning the consent for m, he admits it is hi s s i gn ature on the
c on se nt f or m and he re me mbe rs a

su bs tanti a l amou

nt o f t he fa c ts a nd de ta ils of

the e ve nt. Al l parties, including the De fenda nt, state the eve nts at the Sheriff’ s Depa rtment wer e nonconfr ontational, the Def endant wa s treate d fairly , and the discussion w as brief. T he ag ents’ guns
we re ho lst e re d at a ll time s and , altho ug h the De fe nd a nt mig ht have be e n s c are d a nd up se t, t he fa c ts do not sugg est the experienc e rose to the l evel of duress. Further more, de spite Defe ndant’s limited ed u c a ti on, he had pr evious eng ag ements with law e nforc ement, see, U nited States v. Elkins , 300 F.3d 6 3 8 n . 7 ( 6 t h C i r . 2 0 0 2 ) , an d t h u s h e w a s n o tu n f

a m i l i ar w i t h h i s C o n s t i t

u t i o n a l r i g h t s . A c c o r d i n g l y, we will not disturb the district court’s fa ctual findingthat the conse nt was voluntary
.No. 07-6066

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- 7 - De fe nd ant a lso c la ims he yie lde d to the a uth or ity of the a g e nts a t th e She ri ff

’s De pa rtme nt. Whil e mer e ac quiesce nce doe s not suf fice to establish free and voluntary consent, see, e .g., Bumper , 391 U.S. at 548-49, it does not appea r from the rec ord that Def endant’ s consent was “an e x pression of futility in resistence to authority

or ac quiescingin the office rs’ re quest.” United St ates v. W orley , 193 F.3d 380, 386 ( 6th Cir.1999). Def endant admitted the s ituation was nonconfrontational a nd he was tre ated f

airly . The re cord doe s not sugg est Def endant f elt power less to prohibit the searc h. Viewingthe evidenc e in the lig ht most favorable to the gover nment, it is clear

that the district
c o u rtd i d n o t e r r w h e n i t f

o u n d t h a t D e f

e n d an tv o l u n t ar i l y c o n s e n t e d t o t h e s e ar c h o f

h i s p r o p e rt y.

V.
For these re asons, we a ffirm the judg ment of the district cour t.