United States Court of Appeals

For the Eighth Circuit 

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No. 21-3890

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United States of America

 Plaintiff - Appellee

v.

Michael Ray Mitchell

 Defendant - Appellant

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Appeal from United States District Court 

for the District of South Dakota

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Submitted: October 21, 2022

Filed: December 13, 2022

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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges. 

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GRASZ, Circuit Judge.

Michael Ray Mitchell pled guilty to unlawful possession of a firearm but

preserved his right to appeal the district court’s1 denial of his motion to suppress. 

We affirm.

1

The Honorable Karen E. Schreier, United States District Judge for the 

District of South Dakota, adopting the report and recommendation of the Honorable 

Veronica L. Duffy, United States Magistrate Judge for the District of South Dakota.
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I. Background

Mitchell was indicted for unlawful possession of a firearm under 18 U.S.C. 

§§ 922(g)(1), 922(g)(3), and 924(a)(2). The indictment stemmed from an incident 

when Mitchell stayed as an overnight guest at the home of Cameron Tillman. 

Minnehaha County Deputy Sherriff Cody Lowe, Sergeant Craig Butler, and 

Sergeant Kiel Ricci arrived at Tillman’s home in Sioux Falls to effectuate an arrest 

warrant for Anthony Richards, who they believed was staying there. While 

searching the home, law enforcement came across Mitchell laying on a couch, where 

they soon found a pistol. After his arrest, Mitchell filed a motion to suppress the

introduction of the pistol and other evidence, arguing law enforcement had neither a 

warrant nor consent to search the home. 

At the suppression hearing, the government argued the warrantless search was 

constitutional. In support, the government presented testimony from Lowe, Butler, 

and Ricci that Tillman had consented to the search. Mitchell called Tillman, who 

denied giving consent to search and said the officers “kind of just moved their way 

in” the home while talking to him. The magistrate judge credited the officers’ 

version of events, found Tillman consented to the search of the home, and

recommended the district court deny Mitchell’s motion to suppress. The district 

court adopted the recommendation. Mitchell then conditionally pled guilty, 

preserving the right to appeal the adverse ruling on his motion to suppress. Mitchell 

appeals and asks us to reverse the district court’s denial of his motion to suppress.

II. Analysis

We apply a mixed standard of review. United States v. Hay, 46 F.4th 746, 

750 (8th Cir. 2022). “We review the district court’s findings of fact under the clearly 

erroneous standard, and the ultimate conclusion of whether the Fourth Amendment 

was violated is subject to de novo review.” Id. (quoting United States v. Williams, 

777 F.3d 1013, 1015 (8th Cir. 2015)). The clearly erroneous standard applies to “the 

factual finding that consent to search was voluntary.” United States v. Bearden, 780 
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F.3d 887, 892 (8th Cir. 2015). “We will reverse a finding of fact for clear error only 

if, despite evidence supporting the finding, the evidence as a whole leaves us with a 

definite and firm conviction that the finding is a mistake.” United States v. White, 

41 F.4th 1036, 1038 (8th Cir. 2022) (quoting United States v. Holly, 983 F.3d 361, 

363 (8th Cir. 2020)).

The Fourth Amendment prohibits unreasonable searches. U.S. Const. amend. 

IV. Voluntary consent is an exception to the Fourth Amendment’s general 

prohibition of a warrantless entry into a home. United States v. Anderson, 688 F.3d 

339, 345 (8th Cir. 2012). Whether an individual provided consent to search 

necessarily involves the credibility of witnesses. United States v. Ortega-Montalvo, 

850 F.3d 429, 433 (8th Cir. 2017). “A credibility finding made by a magistrate judge 

‘after a hearing on the merits of a motion to suppress is virtually unassailable on 

appeal.’” United States v. Shafer, 608 F.3d 1056, 1065 (8th Cir. 2010) (quoting 

United States v. Starr, 533 F.3d 985, 995 (8th Cir. 2008)). Further, “the ‘decision to 

credit a witness’s testimony over that of another can almost never be a clear error 

unless there is extrinsic evidence that contradicts the witness’s story or the story is 

so internally inconsistent or implausible on its face that a reasonable fact-finder 

would not credit it.’” United States v. Harper, 787 F.3d 910, 914 (8th Cir. 2015)

(quoting United States v. Heath, 58 F.3d 1271, 1275 (8th Cir. 1995)).

Mitchell argues the consent finding was clearly erroneous because it was 

based on inconsistent testimony among the three law enforcement officers. We 

disagree. 

Three law enforcement officers who were at the home testified at the 

suppression hearing. Lowe, Butler, and Ricci each testified that Lowe asked Tillman 

if he would consent to search. Lowe testified that Tillman provided verbal consent. 

Butler, who was standing next to Lowe, could not recall Tillman’s exact words. But 

Butler explained Tillman “essentially said, yes, we can search for Anthony 

[Richards].” Ricci was also unable to confirm that Tillman verbally consented. But 

Ricci was standing behind Lowe and Butler and observed Tillman move out of the 
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way. Lowe, Butler, and Ricci further testified they would not have searched the 

home without consent. The magistrate judge considered this evidence and made a 

“credibility finding that the officers were testifying truthfully.”

In addition to crediting law enforcement’s testimony, the magistrate judge 

discredited Tillman’s testimony to the extent it varied from the officers’ description 

of events. The magistrate judge noted that Tillman originally told Lowe there were 

only two people in the house when there were actually three. The magistrate judge 

also noted that Tillman appeared to admit he lied when he “dropped his head” after 

Ricci confronted him about the discrepancy. Mitchell insists the magistrate judge 

“infers too much.” But, again, the magistrate judge’s credibility determination after 

personally hearing and observing Tillman’s testimony is virtually unassailable on 

appeal. And Lowe, Butler, and Ricci’s testimony was not inconsistent or 

implausible. 

III. Conclusion

Based on our review of the record, there is no basis to disturb the magistrate 

judge’s factual findings, as they were not clearly erroneous. Accordingly, the district 

court did not err by denying Mitchell’s motion to suppress, and we affirm.

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