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The Honorable E. Richard Webber, United States District Judge for the

Eastern District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-2697

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Frizell Brett, * [UNPUBLISHED]

*

Appellant. *

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Submitted: April 12, 2005

Filed: May 9, 2005

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Before LOKEN, Chief Judge, WOLLMAN, and BEAM, Circuit Judges.

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PER CURIAM.

Frizell Brett was found guilty following a bench trial1

 of possession with intent

to distribute cocaine base, a violation of 21 U.S.C. § 841(a)(1). He appeals from the

denial of his motion to suppress, arguing that the district court erroneously found that

he voluntarily consented to the search of his residence. We affirm.

St. Louis police officers set up a surveillance of Brett’s barber shop and

residence on May 27, 2003, after receiving information that Brett was dealing cocaine
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out of his barber shop. They stopped Brett when he arrived at his residence, advised

him of the investigation, and gave him his Miranda warnings. According to the

officers’ testimony, no other witnesses were present. The officers testified that Brett

indicated that he wished to cooperate, confessed to having a small amount of cocaine

in his kitchen, voluntarily signed a consent to search form, and handed his keys to the

officers. Brett’s testimony differed: he claimed that he was handcuffed and that he

did not sign the consent form. Two defense witnesses, who claimed that they were

present and interacted with the officers, corroborated his statement that he did not

sign the consent form. The officers conducted a search and found cash, cocaine base,

marihuana, powder cocaine and a digital weighing scale. 

The district court found beyond a reasonable doubt that Brett had signed the

consent form willingly and knowingly and that there was no evidence of coercion.

It then found Brett guilty of possessing with the intent to distribute 26.9 grams of

cocaine base and sentenced him to 120 months of imprisonment plus eight years of

supervised release.

A warrantless search of a residence does not violate the Fourth Amendment if

voluntary consent has been given by its resident. Schneckloth v. Bustamonte, 412

U.S. 218, 222 (1973). Whether consent was voluntarily given “is a question of fact

to be determined from the totality of the circumstances.” Id. at 227. The court must

conduct an intensive inquiry based on numerous considerations, none of which, by

themselves, are dispositive. United States v. Lee, 356 F.3d 831, 834 (8th Cir. 2003).

We review factual findings by the district court for clear error. Id. Here, the district

court considered Brett’s age, intelligence, education, that he was not under the

influence of drugs or alcohol at the time of the incident, that Miranda warnings were

given, and that he had had prior experience with the criminal justice system. See

United States v. Smith, 260 F.3d 922, 924 (8th Cir. 2001) (listing factors relevant to

the issue of voluntariness). It also considered the surrounding circumstances at the

time of the consent: the officers questioned Brett only briefly in a public place; he
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was not under arrest at the time; and there is no evidence that they threatened,

intimidated, or coerced him in any way. See Id. The district court accordingly found

that Brett signed the form “willingly and knowingly before the search of his residence

was conducted,” a finding that finds ample support in the record and thus cannot be

said to be clearly erroneous.

The judgment is affirmed.

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