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United States Court of Appeals

For the First Circuit

No. 01-1432

UNITED STATES OF AMERICA,

Appellee,

v.

SEAN LAINE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

 Selya and Lipez, Circuit Judges,

and Singal,* District Judge.

Mark L. Sisti and Twomey & Sisti Law Offices on brief for

appellant.

Gretchen Leah Witt, United States Attorney, and Peter E.

Papps, First Assistant United States Attorney, on brief for the

United States.

October 31, 2001
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_________________

*Of the District of Maine, sitting by designation.
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SELYA, Circuit Judge. A jury found defendant-appellant

Sean Laine guilty of one count of possession of child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Laine

appeals, asserting that much of the prosecution's evidence

should never have seen the light of day. Finding no compelling

basis for suppression, we affirm the judgment below.

The facts are straightforward. In August of 1997,

local authorities received a complaint that the appellant

possessed computer image files containing child pornography.

The complaint was referred to the U.S. Customs Service. An

investigation ensued, but was thwarted by the death of a

confidential informant.

Despite this false start, the government persevered.

On March 16, 1999, a customs agent (Paul Coyman) visited the

appellant's home in Walpole, New Hampshire, accompanied by a

uniformed police officer (Sgt. Pelletier). We discuss the

details of what transpired during that visit in the pages that

follow. For now, it suffices to say that the officers knocked

and asked permission to enter the dwelling; that the appellant

permitted them to come inside; that he thereafter allowed them

to examine his computer; and that the examination revealed image

files of child pornography. A forensic review subsequently
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revealed over one hundred files depicting minors engaged in

sexual activity.

In due course, a federal grand jury returned a singlecount indictment for possession of child pornography. See 18

U.S.C. § 2252A(a)(5)(B). The appellant moved to suppress the

items found at his place of abode, including the images and

other information contained in the computer. The gravamen of

the motion was the appellant's claim that his consent to the

officers' entry had been obtained through coercion and duress

(and was, therefore, involuntary).

The district court held an evidentiary hearing on

November 8, 1999. Coyman testified, and the appellant submitted

an affidavit. The court reserved decision. Later, it issued a

thoughtful rescript in which it made detailed factual findings,

determining that the appellant had invited the officers into his

residence; that, after being informed that Coyman had

information that he (the appellant) had downloaded child

pornography, the appellant indicated that he would cooperate;

and that, after describing some of the images he had downloaded,

the appellant, in response to Coyman's request, led the officers

to his bedroom (where the computer was located). The court

further found that the computer was "up" and that Coyman noticed

in plain view an icon for a program — ACDSee — that the
1Coyman testified that he recognized this extension as one

commonly associated with image files.

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appellant had mentioned as one he had used to view images.

Coyman asked the appellant to click on this icon; when the

appellant did so, a list of files with the extension ".jpg"

appeared.1 At Coyman's direction, the appellant opened one of

the files (which depicted children engaged in sexual activity).

Coyman then secured the appellant's consent to a forensic

examination of his computer and the associated diskettes. The

appellant signed a written consent form verifying this

agreement.

The court acknowledged that the appellant's affidavit

painted a different picture — the appellant claimed, for

example, that his consent had been coerced because the officers

had not allowed his father to be present for the interview and

had threatened to "tear the place apart" if he denied them entry

or refused to produce the diskettes containing the images — but

specifically rejected the appellant's account. In reaching this

conclusion, the court found credible Coyman's explicit denial

that any such conduct had occurred. Then, "[l]ooking at the

totality of the circumstances surrounding the search of [the

appellant's] residence and seizure of evidence," the court

determined that the appellant's "consent to search was given
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voluntarily and was not the product of coercion." United States

v. Laine, No. 99-075, slip op. at 7 (D.N.H. Nov. 18, 1999)

(unpublished). This determination, in turn, prompted the court

to deny the appellant's motion to suppress. Id. at 8.

Trial commenced on August 1, 2000. The jury found the

appellant guilty as charged. The court thereafter imposed a 37-

month incarcerative sentence. This appeal followed.

The appellant's cardinal claim is that the district

court erred in determining that his consent was free and

uncoerced. In addressing this claim, we must accept the

district court's findings of fact unless those findings are

shown to be clearly erroneous. United States v. Chhein, ___

F.3d ___, ___ (1st Cir. 2001) [No. 00-2230, slip op. at 6];

United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994). This

deferential standard of review extends to a factual finding that

consent was voluntary. Chhein, ___ F.3d at ___ [slip op. at

10]; United States v. Coraine, 198 F.3d 306, 308-09 (1st Cir.

1999). In contrast, the district court's rulings of law,

including the court's ultimate constitutional conclusions, are

subject to plenary review. Ornelas v. United States, 517 U.S.

690, 691 (1996); Zapata, 18 F.3d at 975.

The warrant and probable cause requirements of the

Fourth Amendment are not absolutes. One recognized exception is
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for searches authorized by valid consent. Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973). When this exception is in

play, the government bears the burden of showing that consent

was validly obtained. Florida v. Royer, 460 U.S. 491, 497

(1983); United States v. Schaefer, 87 F.3d 562, 569 (1st Cir.

1996). This typically reduces to a question of voluntariness.

That question, in turn, is likely to be factbound. See

Schneckloth, 412 U.S. at 227 (noting that, in the final

analysis, "the question whether a consent to a search was in

fact 'voluntary' or was the product of duress or coercion,

express or implied, is a question of fact to be determined from

the totality of all the circumstances"); Chhein, ___ F.3d at ___

[slip op. at 12] (similar); United States v. Kimball, 25 F.3d 1,

8 (1st Cir. 1994) (similar).

In support of his attack on the lower court's finding

of uncoerced consent, the appellant emphasizes two points.

First, he remarks — and the record bears out — that the officers

never told him that he had the right to withhold his consent and

deny them entry to the premises. But that fact, though

relevant, is not a poison pill. While the failure to inform a

suspect that he has a right to refuse consent is a factor to be

weighed in determining the issue of voluntariness, such an

omission does not preclude a finding that consent was voluntary.
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See Schneckloth, 412 U.S. at 231, 245; Zapata, 18 F.3d at 977;

United States v. Rodriguez Perez, 625 F.2d 1021, 1024 (1st Cir.

1980).

Here, the district court noted the omission but found

that, under all the circumstances, the appellant's consent was

nonetheless voluntary. The only real question for appellate

review is whether the evidence presented at the suppression

hearing fairly supports this finding. On this conflicted

record, the truthfulness vel non of the witnesses necessarily

comprises an important ingredient of any reasoned response to

that question. Because an appellate tribunal must defer to the

trial court's judgment as to witness credibility, see United

States v. Patrone, 948 F.2d 813, 816 (1st Cir. 1991), we have no

principled choice but to uphold the voluntariness finding. We

explain briefly.

The testimony established that the appellant was in his

own home, with the officers outside on the doorstep, when the

question of consent was broached. It was early in the evening.

The officers had knocked and identified themselves (indeed, one

was in uniform), and, as the district court supportably found,

they had told the appellant that they wanted to discuss

something that he probably would not want to talk about in

public. No weapons were brandished and, according to testimony
2As previously noted, the district court was free to accept

Coyman's version of the critical events and reject as incredible

the contrary portions of the appellant's affidavit. See

Rodriguez Perez, 625 F.2d at 1024.

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explicitly credited by the district court, no threats were

uttered.

In fine, there is nothing in the record to show that

the environment was inherently coercive or that the appellant

was in a particularly vulnerable position. By like token, no

credible evidence exists that the officers menaced the

appellant, pressured him, or resorted to trickery to gain

admittance.2 To cinch matters, the appellant expressly invited

the officers to enter the dwelling and opened the door. This

dual manifestation of consent — in both words and deed — speaks

tellingly about the voluntariness of the appellant's consent.

See Zapata, 18 F.3d at 977 (discussing probative force of

"evidence of express consent, along with evidence of consent

inferable from conduct").

In most cases — and especially those in which the

subsidiary facts are contested — the battle over the

voluntariness of an individual's consent will be won or lost in

the trial court. So it is here: the district judge plainly

understood his role, sifted the evidence thoroughly, found the

facts with care, and weighed them in the balance. It is no
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consolation to the appellant that a different factfinder,

viewing the same evidence, might have reached the opposite

conclusion. Where the evidence supports two plausible but

conflicting inferences, the factfinder's choice between them

cannot be clearly erroneous. See United States v. Ruiz, 905

F.2d 499, 508 (1st Cir. 1990); United States v. Cruz Jimenez,

894 F.2d 1, 7 (1st Cir. 1990).

The appellant has a fallback position. Citing Johnson

v. United States, 333 U.S. 10, 17 (1948), he asseverates that he

did not consent to the officers' entry, but, rather, merely

submitted to a lawful claim of authority. That asseveration is

doubly flawed. First, the appellant never made this argument in

the district court, and, consequently, he cannot make it here.

See United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992) ("It

is a bedrock rule that when a party has not presented an

argument to the district court, she may not unveil it in the

court of appeals."); Clauson v. Smith, 823 F.2d 660, 666 (1st

Cir. 1987) (collecting cases).

In all events, even if we were disposed to overlook

this procedural default — and we see no basis for doing so — the

asseveration fails on the facts. The officers here did not

demand to be admitted to the appellant's abode, nor did the

lower court rely on silent acquiescence to the officers' entry
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as a proxy for consent. Rather, Coyman suggested that he wished

to discuss something with the appellant that the appellant might

prefer to keep private, and the appellant thereupon chose to

invite the officers into his home. Given those facts, Johnson

is inapposite.

There is one final point. In closing, the appellant

makes a largely undeveloped argument that the "plain view"

doctrine, see United States v. Rutkowski, 877 F.2d 139, 140-142

(1989), does not support the search and subsequent seizure of

his computer. This challenge need not detain us. The district

court did not rely on the "plain view" doctrine in concluding

that the search passed muster under the Fourth Amendment, but,

rather, explicitly found that the appellant had consented to the

search in its various permutations. This finding depends

largely upon Coyman's testimony, and the district court

carefully examined the inconsistencies between the two versions

of what had occurred before deeming Coyman's account worthy of

credence. Since this credibility determination was comfortably

within the proper province of the district court, we decline to

disturb it.

We need go no further. The appellant, ably represented

by seasoned counsel, has made a heroic effort to put matters in

a flattering light. But he is fishing in an empty stream. At
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bottom, his argument is a thinly veiled attempt to relitigate

credibility judgments and other fact-sensitive determinations

that the district court resolved adversely to him. Because the

court's findings are fully supportable, there is no cognizable

basis for reversing the denial of the suppression motion.

Affirmed.