In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3627

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VICTOR A. DEAN,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Western Division. 

No. 06 CR 50044-5—Philip G. Reinhard, Judge.

ARGUED SEPTEMBER 10, 2008—DECIDED DECEMBER 17, 2008

Before COFFEY, RIPPLE, and MANION, Circuit Judges. 

COFFEY, Circuit Judge. On June 7, 2006, Detective Jason

Cebuhar, a 12-year veteran of the Rockford, Illinois, police

department, received information that Victor Dean had

purchased guns that subsequently proved to have been

stolen during a burglary Officer Cebuhar was investigating. The detective also determined from the police

records that Dean had three outstanding arrest warrants.

Cebuhar and several other officers went looking for Dean
2 No. 07-3627

at his residence, and shortly after arrival at his home,

Cebuhar heard a “crashing sound” from the opposite

side of the house and immediately thereafter spotted

Dean hiding in the bushes. Dean was arrested and thereafter a search of Dean’s house uncovered the weapons

as well as heroin. Dean was charged with one count of

possession of a firearm by a felon. See 18 U.S.C. § 922(g)(1).

At a pretrial suppression hearing, Cebuhar and another

officer, Brad Stien, testified that Dean had orally consented to the search that uncovered the firearms; on the

other hand Dean testified that he never consented. The

trial court judge found the testimony of the officers to be

more credible than Dean’s and denied Dean’s motion to

suppress. After the court agreed to Dean’s request for a

replacement for his attorney, Donald Sullivan, Dean moved

to reconsider the motion to suppress because, he claimed,

Sullivan’s performance had been deficient. After the

district court denied the motion to reconsider, Dean

entered a conditional guilty plea in order that he might

preserve for appeal the district court’s ruling on the

motion to suppress and the motion to reconsider.

 On appeal Dean argues that the district court’s credibility findings were an abuse of discretion for the following

reasons: (1) according to Dean, Cebuhar and Stien each

had a motive to testify falsely about consent because they

were employed in the same police department and wanted

to ensure that the court would uphold the search, (2) the

officers’ failure to obtain written consent for the search

undermined their credibility, (3) Dean was unlikely to

have consented knowing that heroin would be found,
No. 07-3627 3

and (4) two purportedly unbiased witnesses supported

Dean’s contention that he did not break a window during

the search contrary to the officers’ contention that he did.

Dean also argues that the district court’s denial of his

motion to reconsider was an abuse of discretion for the

following reasons: (1) Attorney Sullivan’s pro forma

written submissions were cursory and ill-prepared,

(2) Sullivan failed to vigorously cross-examine Cebuhar’s

explanation for his not seeking written consent, (3) in

arguing the motion, for reasons unexplained, Sullivan

did not refer to the officers’ failure to obtain written

consent nor their motive to lie, and (4) the district court

agreed to Dean’s request to replace Sullivan. After reviewing the record we disagree with Dean’s arguments.

The district court did not abuse its discretion when affirming its prior ruling.

At the suppression hearing, Cebuhar testified to the

following version of events. After Dean had been apprehended, Cebuhar and Stien walked suspect Dean to a

squad car, and Stien asked Dean if anyone else was in the

house. Cebuhar then told Dean that he and the other

officers “were here for the guns,” and Dean replied that

the officers could retrieve the guns from the front

closet. The keys Cebuhar obtained from Dean did not

unlock the house, so another officer entered the residence

through the broken window and recovered the weapons.

While in custody, Dean cooperated with the officers,

and Cebuhar observed a small laceration on one of

Dean’s legs. On cross-examination, Cebuhar stated that he

observed broken glass outside the broken window. Attorney Sullivan also asked Cebuhar why he had not ob-
4 No. 07-3627

tained written consent to search for the guns, and Cebuhar

replied that Dean had tried to escape, and he had provided

specific information about the guns, and furthermore

he had given his oral consent to search for them. Cebuhar

added that the officers believed that the oral consent given

was sufficient and Sullivan did not further probe

Cebuhar’s explanation for not getting written consent.

Patrol Officer Stien, a six-year veteran of the Rockford,

Illinois, police department, testified to the following

version of events. As he approached the residence,

he heard a disturbance on the west side of the house

that he said sounded like either “glass breaking” or a “door

opening.” As Stien and Cebuhar walked Dean to the

squad car after Dean had been apprehended, Stien asked

Dean if anyone else was in the house, and Dean replied

no. Cebuhar asked Dean about the stolen rifles, and

Dean granted the officers permission to retrieve the

guns from the front closet. Stien also mentioned that the

house had a broken window and that Dean cooperated

with him, and also stated that suspect Dean had a cut

on one of his legs. Attorney Sullivan cross-examined

Stien about the nature of the sound he heard as he approached the residence and also attempted unsuccessfully to get Officer Stien to say that Dean refused to

consent to the search.

Detective John Wassner testified that he heard the

breaking of glass on the west side of the residence

shortly before Dean’s apprehension. Wassner further

mentioned that, after Cebuhar had informed him that

Dean consented to the search, Wassner avoided shards of
No. 07-3627 5

glass in an attempt to enter the house through the broken

window on the west side of the residence.

Dean called Joseph Taylor, a window repairman who

said he had never met Dean. Taylor testified that on the

Saturday before the hearing he had inspected Dean’s

residence and concluded that none of the windows on

the west side had recently been broken. A friend of

Dean’s, Melvin Bradley, testified that he secured Dean’s

house after his arrest and did not observe any broken

window. Finally, Dean testified that he climbed through

a window on the west side without breaking it; after he

was caught, Dean said, one of the officers said he had

come for the guns, but Dean made no response to the

officer’s statement. On cross-examination Dean maintained that he injured his leg when he fell while running

from his residence and not from climbing through a

window of broken glass. He agreed that he had cooperated

with the police throughout the day of his arrest, acknowledged his multiple felony convictions, and also admitted

that at the time of his arrest he knew about the three

guns in his closet and the heroin elsewhere in his residence. On redirect examination, Dean mentioned that he

had experience with the police and had learned that

officers needed permission to search his premises if they

did not have a warrant.

In arguing Dean’s motion, Sullivan insisted that the

officers’ testimony was not credible because two witnesses testified that no window in Dean’s residence

had recently been damaged. Sullivan also contended that

Dean, who was familiar with the law of search and seizure,
6 No. 07-3627

would have known that the police could not enter his

house once he was outside.

The trial judge was unsure whether Dean had broken a

window as he left his house, but the court did make a

finding that the officers had heard either aluminum

crashing or a window breaking and ultimately concluded that the condition of the window did not affect

the officers’ credibility. As to whether Dean had consented to the search, the court credited the testimony of

Officers Cebuhar and Stien; the court reasoned that the

two witnesses were experienced officers, their different

positions in the police department rendered unlikely a

collaborative effort to fabricate a story, and their testimony had appeared to be truthful. In contrast, the court

reasoned that Dean’s prior felony convictions, his strong

incentive to concoct a story, and the injury he sustained

on the day of his arrest seemed to undermine his credibility. The court held that the government had satisfied

its burden of proof and established that Dean consented

to the search.

Following the suppression hearing the district court

granted Dean’s request for a substitute appointed lawyer

because Dean stated that he had lost confidence in

Sullivan and irreconcilable communication difficulties

persisted between them. Dean then moved for reconsideration of the ruling on his motion to suppress because, Dean argued, he was prejudiced by Sullivan’s

handling of the matter. The court denied the motion,

stating that Sullivan had presented witnesses supporting

Dean’s version of events. Dean then entered a conditional
No. 07-3627 7

guilty plea and was found guilty of possessing the weapons and was sentenced to a term of 120 months’ imprisonment.

On appeal Dean argues that the district court’s reasoning

in support of its finding that he consented to the search is

flawed for the following reasons: (1) Cebuhar and Stien

had motive to lie about consent because they were employed in the same police department and wanted to

ensure that the court would uphold the search, (2) the

officers’ failure to obtain written consent to search for

the guns undermined their credibility, (3) Dean was

unlikely to have consented knowing that heroin would

also have been found, and (4) two purportedly unbiased

witnesses supported Dean’s contention that he did not

break a window. As to the fourth reason, however, Dean

acknowledges that the window’s condition does not

have a direct connection to the credibility of the officers’

contention that he consented to the search.

It is well settled that the government may conduct a

warrantless search if verbal consent is given. Schneckloth v.

Bustamonte, 412 U.S. 218, 222 (1973); United States v. Renken,

474 F.3d 984, 986-87 (7th Cir. 2007); United States v. Villegas,

388 F.3d 317, 324 (7th Cir. 2004). The issue here is one of

credibility; the two officers testified that Dean had given

oral consent; Dean said he did not. We defer to a district

court’s credibility findings made during a suppression

hearing unless they are clearly erroneous. United States v.

Groves, 530 F.3d 506, 510 (7th Cir. 2008); United States v.

Bernitt, 392 F.3d 873, 878 (7th Cir. 2004). Indeed, we will

uphold the district court’s choice of whom to believe
8 No. 07-3627

unless the court credited exceedingly improbable testimony because the trial court is in the best position to

make that judgment. United States v. Montes, 381 F.3d 631,

637 (7th Cir. 2004); United States v. Thornton, 197 F.3d 241,

247 (7th Cir. 1999). As we have said, “[w]e do not secondguess the sentencing judge’s credibility determinations

because he or she has had the best opportunity to observe

the verbal and non-verbal behavior of the witnesses

focusing on the subject’s reactions and responses to the

interrogatories, their facial expressions, attitudes, tone

of voice, eye contact, posture and body movements, as well

as confused or nervous speech patterns in contrast

with merely looking at the cold pages of an appellate

record.” United States v. Woods, 233 F.3d 482, 484 (7th Cir.

2000) (internal quotation marks omitted).

In this case the district court credited the two officers

for many reasons: (1) they were experienced officers

from different divisions and would thus be less likely to

collaborate and fabricate a story, and (2) they had appeared

to testify truthfully. And, indeed, the record provides no

evidence that they had testified untruthfully at any time

before the hearing. In contrast, the court reasoned that

Dean’s prior felony convictions, his strong incentive to

concoct a story, and his leg injury undermined his credibility. Altogether, it was perfectly rational for the

district court to have believed that Dean’s desire to avoid

another conviction provided a greater motive for him

to fabricate a story than any motive that could be attributed to the officers. See United States v. Bass, 325 F.3d 847,

849-50 (7th Cir. 2003) (upholding district court’s finding

that officer’s testimony was more credible than a felon’s).

The rest of Dean’s arguments fail because none of them
No. 07-3627 9

rises to the level of making the officers’ story exceedingly

improbable. Cebuhar’s explanation that Dean’s oral

consent in front of two officers rendered written consent

unnecessary, and that the expedient nature of the situation rendered it inconvenient, supports the conclusion

that the absence of written consent did not substantially

undermine the officers’ credibility. Written consent, of

course, is not constitutionally required. See Villegas, 388

F.3d at 324; United States v. Price, 54 F.3d 342, 346-47 (7th

Cir. 1995). Dean’s cooperative disposition at the time of

his arrest suggests that he believed it was better to allow

the police to retrieve the guns, even though he was well

aware that guns and drugs were within the house. Finally,

although Dean did present two witnesses who testified

that there was no broken window at his house, even he

concedes that the exact condition of the windows was

at most peripheral to the question of consent.

Dean also argues that the district court abused its

discretion when it ruled that Dean had failed to present

facts, case law, and reasoning substantial enough to

warrant the granting of the motion to reconsider. Dean

argues that Sullivan’s performance was deficient for the

following reasons: (1) Sullivan’s pro forma written submissions were cursory and ill-prepared, (2) Sullivan

failed to vigorously cross-examine Cebuhar’s explanation

for not seeking written consent, (3) in arguing the motion,

Sullivan did not refer to the officers’ failure to obtain

written consent or their motive to lie, and (4) the district

court agreed to Dean’s request to replace Sullivan. Dean

also contends that Sullivan’s allegedly deficient performance prejudiced him because he pleaded guilty only as

a result of counsel’s failure to win the motion to suppress.
10 No. 07-3627

Dean’s argument fails because he points to no shortcoming in Sullivan’s presentation that could have

changed the outcome. The suppression hearing turned

on the question of a credibility judgment. Motions to

suppress need not be elaborate or even written, and Dean

has failed to demonstrate that a longer written submission might have altered the district court’s credibility

finding because that issue was resolved at the hearing

after extensive testimony. See United States v. Banks, 405

F.3d 559, 568 (7th Cir. 2005); Johnson v. Norris, No. 07-3058,

2008 WL 3166152, at *6 (8th Cir. Aug. 8, 2008). Nor does

Dean explain how a more-vigorous challenge to Cebuhar’s

explanation for not obtaining written consent to search

would have altered the district court’s finding. Sullivan

asked Cebuhar about his failure to obtain written consent,

and the district court heard Cebuhar’s explanation. The

court received all of the information it needed to determine the plausibility of his testimony. Similarly it is

unlikely that the district court needed an explicit

reminder during arguments that written consent would

have bolstered Cebuhar’s credibility or that the officers

had a motive to lie and in fact did prevaricate. Finally,

Dean’s difficulty getting along with Sullivan and his

preference for substitute counsel does not reflect on

Sullivan’s performance. See United States v. Huston, 280

F.3d 1164, 1168 (7th Cir. 2002).

We uphold the denial of Dean’s motion to suppress

and AFFIRM his conviction.

12-17-08