IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-41244

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY GILBERT MARTINEZ, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

No. 2:09-CR-557-1

Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

*

Anthony Martinez, Jr., appeals the denial of a motion to suppress evidence

and the sentencing decision not to award him a two-level reduction for acceptance of responsibility. Finding no reversible error, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

January 6, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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I.

Police received several calls after midnight reporting multiple shots fired

in a residential neighborhood. About ten to fifteen officers eventually arrived on

the scene, hearing about twenty to twenty-five more gunshots, which they determined were being fired from a high-caliber weapon. They canvassed the neighborhood to determine the source of the shots, ultimately converging on Martinez’s home. They blocked off the area and attempted to make contact with

Martinez.

Eventually, the officers observed Martinez and three others exiting the

residence. The individuals were immediately detained, and Martinez was informed of his Miranda rights. At the time, the officers were operating under the

assumption that Martinez’s actions violated Texas Penal Code § 42.12, a misdemeanor offense that prohibits the reckless discharge of firearms. Martinez admitted that he had fired multiple weapons that night.

Martinez said there were other people inside the house. The officers also

assumed that the weapons that had been fired were still inside, because none of

the persons who had exited the home were armed, nor were any firearms discovered when the officers blocked off the outside of the house. Given that situation,

several officers were sent inside to conduct a protective sweep to check for injuries or accessible weapons.

During the sweep, the officers noticed a gun safe but did not attempt to

access its contents. They also discovered shell casings from three different calibers of firearms, a .22 rifle, and additional people. In total, twelve individuals

were present in the house that night, six of whom were children (one of which

was Martinez’s fourteen-year-old son, who also admitted that he had fired a

weapon that night).

Following the sweep, the officers escorted Martinez and the others to the

living room area. At the time, Martinez was calm and cooperating fully. There

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is conflicting information in the record as to what exactly happened next, a

conflict we will discuss in detail in part II.A below. What is evident is that the

police eventually gained access to the contents of the gun safe and discovered

approximately fifteen to twenty firearms. They seized the three guns identified

by Martinez’s son as the weapons fired that night, but also recorded the serial

numbers of the other firearms.

Later, the police checked all the serial numbers and discovered that two

of the firearms still in the gun safe, one of which was a machine gun, were stolen. That information was turned over to the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), which executed a federal search warrant and

seized the stolen guns. Martinez was indicted on one count of knowingly possessing a machine gun not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871;

and one count of knowingly possessing a machine gun with a conversion sear, in

violation of 18 U.S.C. §§ 922(o) and 924(a)(2).

Martinez moved to suppress the evidence of the serial numbers collected

that night; the district court denied the motion following a hearing. At a pretrial

conference, Martinez attempted to enter a conditional plea of guilty to preserve

his right to appeal the suppression ruling, but the court refused to accept a conditional plea or to conduct a bench trial with stipulated facts in which Martinez

would be found guilty. Instead, a jury trial was set, which was later converted

to a bench trial by agreement. Martinez was convicted of count one, knowingly

possessing an unregistered machine gun (count two, knowingly possessing a

machine gun with a conversion sear, was dismissed at the government’s request

before trial).

During sentencing, Martinez objected to not being afforded a two-level reduction in his offense level for acceptance of responsibility, given his attempts

to enter into a conditional plea or to have a stipulated bench trial and his coop3

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eration with the ATF. The district court denied any credit for acceptance of responsibility. Martinez was sentenced to forty-one months in prison, within the

guideline range.

II.

When considering a ruling on a motion to suppress, we review factual findings for clear error and legal conclusions de novo. United States v. Gomez-Moreno, 479 F.3d 350, 354 (5th Cir. 2007). We do not reverse a finding that consent

was voluntary unless it is clearly erroneous. United States v. Kelley, 981 F.2d

1464, 1470 (5th Cir. 1993). “Where the judge bases a finding of consent on the

oral testimony at a suppression hearing, the clearly erroneous standard is particularly strong since the judge had the opportunity to observe the demeanor of the

witnesses.” Id (citation omitted). “[W]e view evidence in the light most favorable to the prevailing party—in this case the Government—and indulge all inferences in favor of the district court’s denial of the motion to suppress.” United

States v. Polk, 118 F.3d 286, 296 (5th Cir. 1997) (citation omitted).

Whether consent to a search was voluntary is determined by the totality

of the circumstances, which a court evaluates by considering six factors: “(1) the

voluntariness of the defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant’s cooperation with the

police; (4) the defendant’s awareness of his right to refuse to consent; (5) the

defendant’s education and intelligence; and (6) the defendant’s belief that no

incriminating evidence will be found.” Kelly, 981 F.2d at 1470 (citations omitted). Though all six factors are relevant, no single one is dispositive on whether

consent was voluntary. Id. We note that Martinez does not challenge the legality of initial police entry into his house or the propriety of the protective sweep,

but only the search of his gun safe. He argues (1) that he did not voluntarily

consent to the search and (2) that even assuming that he did consent to the

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search, the scope of the consent was limited to the firearms fired that night—

which would not allow the officers to record the serial numbers of all the firearms found in the safe.

A.

We first determine the facts to be analyzed, because there is conflicting

testimony as to what happened. Three officers testified to one set of facts, but

witnesses for the defense, including Martinez’s son and his friend, testified to

another. The district court specifically found the testimony of the officers to be

the most credible and thus evaluated the voluntariness of the consent based primarily on the facts testified to by them.

There is no reason to disturb those factual findings: It was not clearly erroneous for the court to credit the testimony of the police officers over that of the

defendant’s son and friend, particularly in light of the court’s conclusion that the

son and friend had provided inconsistent testimony regarding other issues. See

United States v. Turner, 319 F.3d 716, 720-21 (5th Cir. 2003).

Thus, the relevant facts that we consider are these: Following their initial

protective sweep of the house, the officers gathered all the occupants, including

Martinez’s son, in the living room. At this time, Martinez was in handcuffs but

was cooperating fully with the officers, to the point that he even admitted that

he had been discharging firearms that evening. The police informed Martinez

that they were investigating the illegal discharge of firearms in the area and

that they were interested in the guns that were used. Martinez responded by

stating that the firearms were in the gun safe and nodding in its general direction. The officers went on to explain that they wished to recover the firearms for

evidence in case they later discovered that one of the rounds fired had struck an

object or an individual. Martinez did not object to the officers’s wish to recover

the weapons he had fired that night. Additionally, his son stood up and also said

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that the weapons were in the safe and pointed to where it was generally located.

The officers then asked Martinez whether they could get those guns out

of the safe. Martinez did not immediately respond, but his son stated, “Well,

yeah, I’ll take you there.” The son indicated that he did not know the combination to the safe but that it was written on the side of the safe. The son then left

the room with two officers to go to the gun safe. Martinez did not object to any

of those actions.

Once Martinez’s son had taken the officers to the room containing the safe,

he pointed out that the combination to the secure safe was written on the side

of the safe. While the two officers were laughing at this lack of security, the son

reached down and turned the handle to open the safe, which was unlocked; at

no point did the officers instruct him to do so. Once the son began to open the

safe, the officers noticed this and stopped him from completing his action. They

instructed him to step back, then finished opening the door themselves, whereupon the son identified the three weapons that had been fired that night.

The officers accompanying the son seized those three weapons as evidence

and recorded the serial numbers of all the other firearms that were present in

the safe. The officers testified that that was common practice whenever they encountered firearms in the course of their duties. They also said that the serial

numbers of all the firearms had been recorded for use in case they later discovered more than three weapons had been fired that night or that they had initially seized the wrong weapons.

B.

The district court did not clearly err in concluding that Martinez voluntarily consented to the search of the gun safe. Consent to a search can be implied from silence or failure to object if it follows a police officer’s explicit or implicit request for consent. See United States v. Jaras, 86 F.3d 383, 390 (5th Cir.

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1996). Here, an officer implicitly requested consent to search the safe. When an

officer asks an individual where a gun is located, while at the same time repeatedly stating that his goal is to seize the weapon as evidence, that is logically considered an implicit request for consent to search for and recover the weapon.

Given that Martinez was implicitly asked to consent to a search, it was not clearly erroneous for the court to conclude that Martinez’s decision to remain silent

following his specific identification of the location of the firearms, as well as his

son’s offer to retrieve the firearms, constituted implicit consent to the subsequent search.

Because consent was given, the question is whether it was voluntary.

With respect to the six factors, three of them weigh strongly in favor of a finding

of voluntariness.

First, the officers used no coercive procedures. Although Martinez was

surrounded by police when he consented, the mere presence of armed officers

does not render a situation coercive. The officers were not pointing their firearms at anyone and were not threatening Martinez or shouting. They were

merely standing in Martinez’s living room while engaging him in a relatively polite conversation about the events of that night and the location of the guns in

question. As one of the officers testified, “everything began to calm down and we

basically started a civil conversation as to why we were there.” Furthermore,

when Martinez was asked the location of the guns, and when the two officers

went with Martinez’s son to the gun safe, the relevant officers did not even have

their weapons drawn.

Second, Martinez was freely and fully cooperating. He voluntarily admitted to firing weapons that night; he was calm while the officers handcuffed him

and conducted the protective sweep; and he was comfortable discussing the

events while they were all sitting in his living room. His consent to the search

was consistent with the rest of his behavior that night, because at no point did

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he fail to provide anything but complete cooperation.

And third, the district court concluded that Martinez possessed sufficient

education and intelligence to consent voluntarily. There is no information in the

record, nor does Martinez raise any contrary argument in his briefs, to cast

doubt on that conclusion.

Of the three remaining factors, one was decided incorrectly: The district

court concluded that Martinez did not know that incriminating evidence would

be found as a result of the search. That is a clearly erroneous finding.

The officers told Martinez that firing the weapons that night was illegal

under state law; thus, he logically had to know that pointing out the location of

the firearms would provide the officers with incriminating evidence. That is true

even if Martinez was not aware that the search of the gun safe would lead to the

federal charges he would eventually face. And yet, the fact that he was likely

aware that he was providing the officers with incriminating evidence does not

significantly affect our analysis of the voluntariness of the consent. Martinez

had already voluntarily admitted to shooting the firearms that night. He was

not seeking to conceal that fact, so there is no reason to believe that he would

even consider concealing the weapons he had fired.

Those circumstances do not allow us completely to ignore the fact that

Martinez consented to a search that he knew would lead to evidence of a crime,

but it does lessen the weight we place on that factor when we decide whether it

was clearly erroneous for the district court to conclude that consent was voluntary. After all, it would be significantly more likely for a defendant to consent

voluntarily to a search that he knew would produce evidence of a crime if he had

already voluntarily admitted to committing the crime.

As to the voluntariness of Martinez’s custodial status, he was detained but

not under arrest when he consented to the search of the safe. Though the

Fourth Amendment does not require that a lawfully detained person be informed

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that he is free to go before his consent to a search is deemed voluntary, Ohio v.

Robinette, 519 U.S. 33, 35 (1996), the extent of his detention is relevant in our

consideration of the totality of the circumstances. The fact that Martinez was

being detained in his own house at the time he consented to the search appears

to weigh against a finding of voluntariness. Yet, he might have thought that if

he refused consent, the officers would have nothing remaining to do and would

leave. On the other hand, if he did not voluntarily consent to the search, the police presence and his extended detention were not voluntary, which would mean

that this factor weighs against a finding of voluntariness, because Martinez was

being detained against his will when he consented to the search. This indeterminancy renders this factor unhelpful as to voluntary consent.

Finally, the record is silent as to whether the officers told Martinez he had

the right to refuse consent. This factor does weigh against a finding of voluntariness, but “the failure to advise an individual of the right to withhold consent is

not determinative in and of itself” in determining whether the consent given was

voluntary. See United States v. Solis, 299 F.3d 420, 437 (5th Cir. 2002).

To summarize: Of the six factors, three weigh strongly in favor of a finding of voluntariness; one does not affect the analysis to a significant degree; one

has an indeterminate effect on our analysis; and one weighs against a finding of

voluntary consent. All six factors are considered in light of the totality of the circumstances. The evidence of Martinez’s complete, unwavering, and voluntary

cooperation is particularly compelling. Given that strong evidence, and the fact

that the only factor that noticeably weighs against voluntariness is the possibility that Martinez may not have been aware of his right to refuse consent, it was

not clearly erroneous for the district court to conclude that Martinez voluntarily

consented to the search of his gun safe.

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C.

The final issue regarding the search is whether the recording of the serial

numbers of all the firearms found in the gun safe exceeded the scope of the voluntary consent. “The standard for measuring the scope of a suspect’s consent

under the Fourth Amendment is that of ‘objective’ reasonableness—what would

the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991).

Martinez consented to a search of the safe made for the purpose of seizing

the weapons that had been fired that night. It is objectively reasonable to assume that the police officers would have to search through all the firearms in the

safe so they could properly identify the ones that had been fired. Even though

Martinez’s son identified the three weapons fired that night, the officers could

not be expected to rely on his identification without conducting a search of their

own.

As the district court noted, it is reasonable to conclude that the police

would have to inventory the firearms in the safe in order eventually to seize all

those fired that night—which was the scope of the consent. That is because of

the possibility that the officers had initially seized the wrong guns or that more

guns had been fired that night than Martinez and his son had identified to the

officers. Thus, when Martinez consented to the search, the scope of that consent

reasonably included the serial numbers of all the guns in the safe. Furthermore,

police officers who come into legal possession of a gun are entitled, if not expected, to record its serial number. United States v. Wallace, 889 F.2d 580, 583 (5th

Cir. 1989) (citation omitted).

The plain view doctrine also justifies the recording of the serial numbers.

For a plain-view seizure to be upheld, four conditions must be satisfied: “(1) the

officer conducting the seizure must lawfully arrive at the position from which the

object is plainly seen; (2) the object must be in plain view; (3) the object’s incrim10

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inating character must be immediately apparent—i.e., the officer must have

probable cause to believe the object is contraband or evidence of a crime; and

(4) the officer must have a lawful right of access to the object itself.” United

States v. Paige, 136 F.3d 1012, 1023 (5th Cir. 1998) (citation omitted).

All four conditions are satisfied. The officers were lawfully examining all

the firearms to determine which were the ones being fired that night; the serial

numbers were in plain view; the officers had probable cause to believe that any

one of those firearms had been illegally fired; and they had a lawful right of access to record the serial numbers.

III.

The sentencing guidelines allow a court to reduce the offense level by two

“[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). Because a sentencing judge is in the best position

to evaluate acceptance of responsibility, we review a finding on that “for clear

error but under a standard of review even more deferential than a pure clearly

erroneous standard.” United States v. Outlaw, 319 F.3d 701, 705 (5th Cir. 2003)

(quotations and citation omitted). A decision to not award a reduction for acceptance of responsibility will be affirmed “unless it is without foundation, a standard of review more deferential than the clearly erroneous standard.” United

States v. Juarez Duarte, 513 F.3d 204, 211 (5th Cir. 2008) (per curiam) (internal

quotation marks and citation omitted).

Martinez claims that he should be given credit for acceptance of responsibility because (1) he attempted to enter into a conditional plea; (2) once a conditional plea was not available to him, he attempted to engage in a bench trial

with stipulated facts that would lead to a guilty verdict; and (3) he cooperated

fully with federal law enforcement officials. The district court, however, disagreed with Martinez on the last point. The court stated that acceptance of re11

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sponsibility was being denied “because he misrepresented through hearings and

through testimony that he offered the essential facts of the case.” Specifically,

the court found that Martinez had his son lie under oath to assist Martinez during the suppression hearing and that Martinez lied about how he had obtained

the firearms to one of the individuals who wrote a sentencing letter on his behalf. The district court concluded that those actions did not evince acceptance

of responsibility. Given the factual findings, such a conclusion is not “without

foundation.”

AFFIRMED.

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