FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 25, 2002

THOMAS K. KAHN

CLERK

*

 Honorable David D. Dowd, Jr., U.S. District Judge for the Northern District of Ohio,

sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 00-16686

________________________

D. C. Docket No. 00-14019-CR-KMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS ENRIQUE RAMIREZ-CHILEL,

a.k.a. Carlos-Enrique Ramirez-Chelel,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(April 25, 2002)

Before BIRCH and WILSON, Circuit Judges, and DOWD*

, District Judge.

WILSON, Circuit Judge:

Carlos Enrique Ramirez-Chilel was convicted of knowing possession with
2

the intent to use and transfer unlawfully five or more false United States

identification documents in violation of 18 U.S.C. § 1028(a)(1) and (a)(3) and of

knowing and unauthorized possession of blank immigration permits in violation of

18 U.S.C. § 1546(a). Ramirez-Chilel now appeals the district court’s decision to

deny his motion to suppress all physical evidence seized from his bedroom on the

night of March 15, 2000, as well as his post-arrest confession made later that night

at the police station. Specifically, he argues that (1) the court made clearly

erroneous credibility determinations as to who answered the door of the residence

when the officers knocked; (2) the officers’ initial entry into his residence was

illegal; and (3) the subsequent search of his home and resulting post-arrest

statement were both products of the unlawful entry and should have been excluded. 

We find that the district court’s findings of fact were not clearly erroneous and that

the law enforcement officers’ entry into Ramirez-Chilel’s home and subsequent

search was legal. We therefore affirm.

BACKGROUND

At approximately 11:45 p.m. on March 15, 2000, Detectives Zealor and

Hyde, both officers on the Treasure Coast Drug Enforcement Agency (DEA) Task

Force, Immigration and Naturalization Service (INS) Investigator Guillan, and INS

Agent Price proceeded to Ramirez-Chilel’s trailer in Indian River County, Florida. 
1

 There is some mention in the trial transcripts of a Sergeant Brooks and a Detective

Dean of the St. Lucie County Sheriff’s Office who may have assisted the four law enforcement

officers in locating the defendant’s residence. It is unclear from the record, however, whether

either officer actually entered Ramirez-Chilel’s residence that night.

3

The officers had received a tip that someone in that trailer was producing and

selling counterfeit immigration and identification documents.1

 The officers had no

probable cause to search the trailer and no search warrant, nor were there any

exigent circumstances for approaching the residence at that hour. The officers

were hoping they would be given consent to enter and search the premises when

they arrived.

Guillan, Hyde, Price, and Zealor approached the residence shortly before

midnight; the officers claim to have no particular reason for arriving at night other

than wanting to follow up on a tip they had recently received. Guillan knocked on

the door. What happened next is a subject of much dispute.

Both Hyde and Guillan testified at the suppression hearing that they

approached Ramirez-Chilel’s home without weapons drawn; Guillan knocked on

the front door several times and announced in Spanish that they were police

officers; the defendant, Ramirez-Chilel, answered the door; Guillan spoke to

Ramirez-Chilel in Spanish to request admittance “in order to determine whether or

not there was any evidence of counterfeit documents or counterfeit immigration
2

 Guillan was the only officer who spoke and understood Spanish; Guillan testified that

he explained to Ramirez-Chilel that they were at his home in response to an allegation of

identification counterfeiting.

3

 After entering the house, Guillan again explained why they were there and that they

were seeking his voluntary consent to search the premises. Guillan asked the defendant if there

were any false documents or other contraband in the residence including drugs or guns, and

Ramirez-Chilel responded that there was not any of those “bad things” in the residence. Guillan

then took out an INS consent to search form and spent more than thirty minutes translating and

going over the consent to search form in Spanish, putting a check mark after he covered each

paragraph, including the paragraphs instructing the defendant that he could refuse to consent to

the search. Hyde and Guillan testified that the search did not begin until after Ramirez-Chilel

signed the consent to search form. Guillan also testified that all of the persons in the trailer, the

defendant, his girlfriend, and the two small children, were free to leave, move about, and were

not restrained in any fashion.

4

documents at that residence”;2 Ramirez-Chilel then “yield[ed] the right-of-way” to

the officers and thus consented to their entry into the home; and, after signing a

consent to search form, Ramirez-Chilel voluntarily consented to the search of the

home.3

In their testimonies, Ramirez-Chilel and his girlfriend, Evinelli Pineda,

described the events in a wholly different manner. They testified that the officers

knocked loudly and announced themselves; Pineda’s four-year-old son opened the

door to the home; and the officers then stepped into the home and were already

inside when Ramirez-Chilel emerged from his bedroom. Ramirez-Chilel testified

at the hearing that Guillan spoke to him in Spanish and that he did not understand

what Guillan was saying to him because Guillan was speaking both English and

Spanish. Ramirez-Chilel did admit that Guillan asked if there were any guns or
4 Miranda v. Arizona, 384 U.S. 436 (1966).

5

“bad things” in the residence and that he said no and told the officers they could go

ahead and search because he knew he did not have any guns or “bad things” in the

residence. Ramirez-Chilel claims that he signed some papers (i.e., the consent to

search form) because Guillan said they had a right to search the trailer and he did

not think that he had any choice.

When the officers searched the residence, they found counterfeit resident

alien cards, counterfeit social security cards, photo residue in a garbage can, a

plastic laminator, blank and completed birth certificates from Mexico, drivers’

license and identification cards from the State of Kansas, and other items normally

used in the production of counterfeit documents. After these items were found,

Ramirez-Chilel was arrested, and Guillan then advised him of his Miranda rights4

in Spanish. According to Guillan, Ramirez-Chilel acknowledged that he

understood his rights and told Guillan that the documents did not belong to him,

but belonged to someone named Jorge Martinez. Ramirez-Chilel denies hearing

his Miranda rights and denies ever telling Guillan that he prepared or sold false

immigration or identification documents. He claims that he said that everything

belonged to Martinez, and that Martinez was allowed to live at the trailer in 1999

when he went back to Guatemala for a period of time.
5

 Ramirez-Chilel’s testimony at the suppression hearing differs from his testimony at

trial. At trial, Ramirez-Chilel claimed that Guillan threatened him into signing the consent to

search form and that the officers drew their weapons inside his home. We may consider this

evidence because we may consider any evidence and are “not limited to the evidence introduced

[at] the hearing on the motion.” United States v. Villabona-Garnica, 63 F.3d 1051, 1056 (11th

Cir. 1995).

6

 Ramirez-Chilel was then transported to the local DEA Drug Task Force

Office in the St. Lucie County police station. He was read his Miranda rights

again and signed the form. The form was in English and Guillan translated it into

Spanish for Ramirez-Chilel. Thus, Guillan contends that Ramirez-Chilel

voluntarily waived his Miranda rights and made a post-arrest statement. In the

written statement, Ramirez-Chilel stated: “I bought the typewriter and the

laminator from Office Depot in February, 1999. Jorge Martinez left me the

counterfeits, for $800, because I thought it was good work for me.” RamirezChilel contends that after being arrested and taken to the sheriff’s office, Guillan

threatened to deport, kill, or send him to an island if he did not sign the confession,

so he signed it.5

During the suppression hearing, the magistrate judge, faced with a

fundamental credibility question, reviewed the testimony of each witness and made

the following factual findings: (1) Ramirez-Chilel answered the door and

consented to the officers’ entry into his home; (2) Ramirez-Chilel voluntarily

consented to the search of his home; and (3) Ramirez-Chilel voluntarily waived his
7

Miranda rights and gave an admissible written statement. 

The magistrate judge noted that the “motion boils down to essentially an

issue of credibility.” The magistrate judge focused on whether or not any threats

of deportation and death were made – Pineda did not testify to hearing any threats

and Guillan denied that threats were made. The magistrate judge also noted that

both Pineda and Ramirez-Chilel were personally interested in suppressing the

evidence, and that the officers did not have any vested interest in the case. Hyde

did not work for the INS or any INS task force and was involved only to assist in

locating the residence. Thus, the magistrate judge found the corroborating,

consistent testimony of the officers more credible than that of the defendant and

Pineda.

Next, the magistrate judge found Ramirez-Chilel’s act of allowing the

officers to enter by opening the door and stepping aside to be “properly interpreted

by the law enforcement officers as consent to enter the trailer.” After finding

consent to enter the house, the magistrate judge then found voluntary consent to

search because Guillan “meticulously read and re-read” the consent to search form,

and Ramirez-Chilel signed it and later admitted to consenting to the search. The

magistrate judge, rejecting Ramirez-Chilel’s claims that threats were made, also

found Ramirez-Chilel’s written statement at the sheriff’s office to be admissible
8

because his Miranda rights were “meticulously read and re-read to the Defendant

along with the questions and his responses” contained in the statement. 

In light of these credibility determinations, the magistrate judge found no

basis for suppressing either the physical evidence or the written statement. The

district court, after specifically noting the magistrate judge’s credibility

determinations, adopted the report and recommendation. After a trial, the jury

found Ramirez-Chilel guilty on both counts, and the district court sentenced him to

forty-one months of imprisonment for each count to be served concurrently.

STANDARD OF REVIEW

A district court’s ruling on a motion to suppress presents mixed questions of

law and fact. United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000). “We are

required to accept the district court’s factual findings as true” unless they are

clearly erroneous, but the district court’s application of the law to the facts is

reviewed de novo. Id.

DISCUSSION

I.

Credibility determinations are typically the province of the fact finder

because the fact finder personally observes the testimony and is thus in a better

position than a reviewing court to assess the credibility of witnesses. Viehman v.
9

Schweiker, 679 F.2d 223, 227–28 (11th Cir. 1982). In fact, in a case such as this

one, where the officers’ testimonies are in direct conflict with Ramirez-Chilel’s

and Pineda’s testimonies, various courts have held that a “trial judge’s . . . choice

of whom to believe is conclusive on the appellate court unless the judge credits

exceedingly improbable testimony.” United States v. Cardona-Rivera, 904 F.2d

1149, 1152 (7th Cir. 1990); see also United States v. Cooke, 915 F.2d 250, 252

(6th Cir. 1990) (“An effort must be made to demonstrate why the trial court’s

conclusion is clearly erroneous. On appeal all we have is the cold record, and we

accord considerable deference to the credibility findings of the trial court.”). “In

other words, [w]e must accept the evidence unless it is contrary to the laws of

nature, or is so inconsistent or improbable on its face that no reasonable factfinder

could accept it.” United States v. Eddy, 8 F.3d 577, 580 (7th Cir. 1993).

Therefore, in evaluating the factual version of events between the law

enforcement officers and Ramirez-Chilel, we should defer to the magistrate judge’s

determinations unless his understanding of the facts appears to be “unbelievable.” 

See United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985) (holding that a

jury’s decision as to the credibility of a witness would not be disturbed on appeal

unless the witness’s testimony was unbelievable on its face). In this case, it is

reasonable to assume that Guillan and Hyde’s version of the facts is true – that
10

Ramirez-Chilel answered the door and voluntarily consented to the search.

Ramirez-Chilel argues that the district court’s credibility determination is

based upon an improper “credit law enforcement in case of conflict” rule and relies

upon Gallego v. United States, 174 F.3d 1196 (11th Cir. 1999), to support his

contention. In Gallego, an incarcerated defendant filed a motion to vacate his

conviction under 28 U.S.C. § 2255, arguing ineffective assistance of counsel. Id.

at 1197. An evidentiary hearing was held to determine whether Gallego was

informed by his attorney of his right to testify at trial. Id. The district court found

that Gallego was not credible and held that “as a matter of law [a] defendant could

not carry his burden without presenting some evidence in addition to his own

word, which is contrary to counsel’s.” Id. at 1198. On appeal, we rejected the

district court’s ruling that an interested attorney (accused of providing ineffective

assistance) is automatically considered to be more credible than an interested

defendant (seeking vacation of his sentence). Id. Instead, we require district courts

to conduct a proper credibility determination, which includes looking to “the

internal consistency of the [witness’s] testimony, or his candor or demeanor on the

stand.” Id.

Ramirez-Chilel argues that the magistrate judge did not conduct a proper

credibility determination, as laid out in Gallego, but rather credited the law
6

 Ramirez-Chilel points to statements the magistrate judge made in his report and

recommendation, such as “Why would Detective Hyde commit perjury and state that the

Defendant opened the door if, in fact, the Defendant did not?” and “The Defendant has an

obvious interest in the outcome of this case which would be readily apparent, i.e., a conviction

may result in a lengthy prison sentence,” to suggest that the magistrate judge is inherently biased

in favor of law enforcement officers and against criminal defendants. These statements, when

taken out of context, appear to support the defense’s contention that the magistrate judge made

his credibility determinations based upon the witnesses’ status rather than upon the testimony

itself, which may raise questions of bias and prejudice. See United States v. Ramos, 933 F.2d

968, 973 (11th Cir. 1991) (per curiam). However, in order to amount to reversible error, a

judge’s remarks must demonstrate such pervasive bias and unfairness that they prejudice one of

the parties in the case. Id. We do not have that here. In fact, the record indicates that the

magistrate judge’s “statements were intended as a credibility finding.” The court’s credibility

ruling, though adverse to Ramirez-Chilel, does not indicate pervasive bias. Id. at 973 & n.2.

(finding that although the district judge’s choice of words was poor, the comments the judge

made suggesting that he would believe government agents over “a couple of drug dealers” did

not indicate pervasive bias and fundamental unfairness); see United States v. Mirkin, 649 F.2d

78, 82 (1st Cir. 1981) (“Making credibility assessments is daily grist for a trial judge. In any

11

enforcement officers with the truth simply because they were government agents. 

However, after reading the magistrate judge’s report and recommendation, it

appears as if the magistrate judge did not base his credibility determination solely

on the “status” of the witnesses, but rather weighed the testimonies of all the

witnesses, taking into account the interests of the witnesses, the consistencies or

inconsistencies in their testimonies, and their demeanor on the stand. The report

explains why the magistrate judge chose to believe the officers over the defendant;

there is nothing in the report that would indicate that the magistrate judge

summarily dismissed Ramirez-Chilel’s or his girlfriend’s testimony strictly

because he was the defendant and Hyde and Guillan were law enforcement

officers.6

 Therefore, we do not find the officers’ testimonies to be improbable and
case or proceeding in which the defendant testifies, the judge, almost as a reflex process, will

form an opinion about the defendant’s credibility. Such determination should not, of course, be

based on bias or prejudice, but prejudice does not inevitably arise as a result of forming a

credibility opinion.”).

7

 The government argues that Ramirez-Chilel failed to preserve this illegal entry issue for

purposes of appeal because the defendant has consistently argued that the four-year-old boy

opened the door and has never, until now, alternatively argued that if Ramirez-Chilel opened the

door, the officers’ entry would still be illegal. However, the record demonstrates that during

pretrial proceedings before the district court on July 31, 2000, Ramirez-Chilel’s attorney

objected to the adopted report and recommendation issued by the magistrate judge, and thereby

preserved the objection for appellate purposes. It is important to note, though, that because the

defendant never testified that he opened the door to the officers, we must base our decision today

solely upon the officers’ testimonies as to what happened at the defendant’s door that night. For

example, we have no knowledge as to whether Ramirez-Chilel might have felt intimidated at the

door when the officers arrived or whether he feels he “yield[ed] the right-of-way” or the agents

“forced” their way in.

12

find the court’s credibility determinations to be entitled to deference.

II.

In the alternative, Ramirez-Chilel argues that if we agree with the lower

court’s findings of fact, that Ramirez-Chilel himself answered the door, the

officers’ entry was still illegal, and thus, the subsequent search of his home was

tainted by this illegal entry.7

 Therefore, we must determine whether RamirezChilel’s act of “yielding the right-of-way” constitutes permission for the officers to

enter.

A warrantless entry into a suspect’s home to search the premises is presumed

to be unreasonable. United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991)

(citing Payton v. New York, 445 U.S. 573, 586 (1980)). A suspect does not consent
13

to a search of his residence when his consent to the entry into his residence is

prompted by a show of official authority. Cf. United States v. Edmondson, 791

F.2d 1512, 1515 (11th Cir. 1986).

In order for us to find that the officers’ entry into Ramirez-Chilel’s home

was illegal, the facts must demonstrate that the defendant’s consent to the officers’

entry into his residence was “prompted by a show of official authority,” which

overcame his consent to search the premises. Id. In Edmondson, Federal Bureau

of Investigation (FBI) agents investigating a bank robbery surrounded

Edmondson’s apartment, drew their weapons, and knocked on the door yelling,

“FBI. Open the door.” Id. at 1514. “Edmondson opened the door, stepped back,

and placed his hands upon his head.” Id. We found that Edmondson’s actions did

not amount to consent for agents to enter, rather, the defendant’s actions evidenced

“an acquiescence to a show of official authority.” Id. at 1515. Although it is not

certain whether Edmondson actually saw the officers’ drawn weapons, the

defendant was definitely aware of the fact that a number of FBI agents were at his

door and at the bottom of the stairs. Id. We found that the presence of a number of

officers tended to “suggest an undertaking which is not entirely dependent on the

consent and cooperation of the suspect.” Id.

Here, the facts are distinguishable from Edmondson. In this case, it is hard
8

 We have some concern about the officers’ decision in this instance to approach the

defendant’s home and seek his consent at midnight. The magistrate judge also expressed his

concerns in his report and recommendation about why it was necessary for this search to occur at

11:45 p.m. Nighttime searches are deemed to be more intrusive than daytime searches, and the

assemblage of law enforcement officers at one’s door in the middle of the night has a tendency to

be more coercive than during the day. See United States v. Jerez, 108 F.3d 684, 690–92 (7th Cir.

1997) (Where the officers roused the defendants from their beds in a motel in the middle of the

night by knocking on the door for three minutes, shined a flashlight through the window, and

requested that they open the door, the defendants were “seized” as a reasonable person in their

situation would not have felt free to ignore the deputies and continue about their business.);

Fontenot v. Cormier, 56 F.3d 669, 675 (5th Cir. 1995) (The deputies’ conduct in abruptly

awakening the defendant in the middle of the night to ask if they could enter the residence and

refusal to leave the residence thereafter constituted a “show of authority” that was

unreasonable.); Harless v. Turner, 456 F.2d 1337, 1338–39 (10th Cir. 1972) (per curiam) (No

legally effective consent was given after a number of sheriff’s deputies invaded the defendant’s

home in the middle of the night and forced the defendant and his wife out of bed.). That being

said, however, we find that based upon the totality of the circumstances here, the fact that the

search occurred at midnight does not by itself negate the voluntariness of Ramirez-Chilel’s

consent to search. 

14

to find a “show of force” by the officers – guns were not drawn, nor were a large

number of officers surrounding the trailer ready to arrest the suspect. According to

the officers, Ramirez-Chilel did not open the door, step back, and place his hands

behind his back, which would have suggested intimidation and a show of force on

the part of the officers. The defendant “yield[ed] the right-of-way” – this alone

does not suggest that he was overwhelmed by a show of official authority.8

Ramirez-Chilel also points to United States v. Gonzalez, 71 F.3d 819, 830

(11th Cir. 1996) (quoting United States v. Shaibu, 920 F.2d 1423, 1426 (9th Cir.

1990)), in which we agreed with the Ninth Circuit that “it is inappropriate to

‘sanction[ ] entry into the home based upon inferred consent.’” In Gonzalez, the
15

police officer followed the defendant’s mother into her home when she went in to

get a drink of water – we later determined that the mother’s actions could not “be

viewed as an adequate implied consent to that warrantless [entry].” Id. at 829. 

“[T]he government may not show consent to enter from the defendant’s failure to

object to the entry. To do so would be to justify entry by consent and consent by

entry. This will not do.” Shaibu, 920 F.2d at 1427.

However, after examining the facts in Gonzalez and comparing them to the

case at hand, we can certainly make a distinction between the failure to object

when officers follow someone into their home and the act of “yielding the right-ofway” to officers at the person’s front door. Although the officers did not receive

any explicit verbal consent from Ramirez-Chilel to enter, the officers did receive

some sort of implied consent to enter from Ramirez-Chilel’s body language that

was not present in Gonzalez.

Therefore, we find the officers entry to be legal because we find no official

show of force which would have “forced” the defendant to let the officers in, and

we also find that Ramirez-Chilel demonstrated his consent to entry by “yielding the

right-of-way” for the officers to enter.

III.

After finding that the officers’ entry was legal, we now need only determine
9

 Typically, if the ensuing search occurs after an initial illegality, such as an illegal entry

or an illegal arrest, we must first determine whether the consent to search was voluntary and

then, whether the consent was tainted by the initial illegality. Santa, 236 F.3d at 676; United

States v. Robinson, 625 F.2d 1211, 1219 (5th Cir. 1980). In this case, the initial entry was

determined to be legal, and therefore we need only address whether Ramirez-Chilel’s subsequent

consent to search was voluntary.

10 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the

Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to

the close of business on September 30, 1981.

16

whether Ramirez-Chilel voluntarily gave his consent for the officers to search the

premises.9

According to United States v. Robinson, 625 F.2d 1211, 1218 (5th Cir.

1980), “[t]he question of voluntariness is one of fact to be determined from the

totality of the circumstances, and the trial court’s voluntariness determination must

not be reversed on appeal unless clearly erroneous.”10 In determining the

voluntariness of a defendant’s consent, we stated in Gonzalez that a court must

look at several factors, which include whether the defendant was “free to leave,”

whether there was “coercive police procedure,” “the extent of [the] defendant’s

cooperation or awareness of a [right to] refuse to consent,” “whether [the

defendant] could refuse to consent,” the extent of the defendant’s “education and

intelligence,” and the defendant’s “belief that no incriminating evidence would be

found.” 71 F.3d at 830–31.

The facts in this case lead us to believe that Ramirez-Chilel’s consent to
17

search was voluntary – according to the officers’ testimonies, Ramirez-Chilel was

free to walk around his residence at all times, Agent Guillan spent over thirty

minutes with the defendant, translating and reading the consent to search form

before Ramirez-Chilel signed it, Ramirez-Chilel appeared to understand that he

could refuse to consent (Guillan put a check mark next to each paragraph of the

form which explained his right to refuse to consent), and, most importantly,

Ramirez-Chilel himself admitted during the suppression hearing to consenting to

the search because he knew he did not have any guns or “bad things” in the trailer. 

Therefore, we find from the totality of the circumstances that RamirezChilel’s consent to the officers’ search of his residence was voluntary, and

therefore the motion to suppress all physical evidence found in his home that night

was appropriately denied.

Finally, we need not examine whether the post-arrest statement was tainted

as fruits of an initial illegality because we find no initial illegality, whether it be the

initial entry or the ensuing search. We therefore affirm the district court’s decision

to deny the defendant’s motion to suppress. 

AFFIRMED.