UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4436

JOSE SANTIAGO CHAVEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

William L. Osteen, Sr., District Judge.

(CR-97-234)

Submitted: December 15, 1998

Decided: January 6, 1999

Before HAMILTON and LUTTIG, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis C. Allen III, Federal Public Defender, Gregory Davis, Assistant

Federal Public Defender, Greensboro, North Carolina, for Appellant.

Walter C. Holton, Jr., United States Attorney, Sandra J. Hairston,

Assistant United States Attorney, Greensboro, North Carolina, for

Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Jose Chavez appeals the district court's denial of his motion to suppress evidence seized during a consent search of his recreational vehicle. Because we cannot conclude that the district court clearly erred

in finding that Chavez's consent to search was freely and voluntarily

given, we affirm.

I.

Chavez entered a conditional plea of guilty, allowing for an appeal

of the denial of his suppression motion, to possessing with the intent

to distribute more than 100 kilograms of marijuana. Around 12:15 in

the morning, Deputy Hasty of the Randolph County Sheriff's Department spotted Chavez walking along a state road in close proximity to

a recreational vehicle that appeared to be broken down on the side of

the road. Chavez told Deputy Hasty that his R.V. was out of gas.

Hasty offered Chavez a ride to the gas station which Chavez accepted.

After obtaining some gasoline, they returned to the R.V. On their

return trip, Hasty asked Chavez, "Would you mind if I searched your

vehicle for drugs?" Hasty testified that Chavez said "no, sir" and

denied being involved with drugs. Hasty then asked him, "so you

don't mind if I search your vehicle?" to which Hasty testified Chavez

responded, "no, sir, I don't mind." After two back-up officers arrived,

Hasty once again asked Chavez "if he didn't mind if [he] searched his

vehicle." Chavez said "no, I don't mind." At no time was Chavez

restrained and none of the officers drew their weapons.

Chavez testified at the suppression hearing that he told Hasty that

"it was up to him," when asked for permission to search. Chavez now

challenges the denial of the suppression motion and asserts that he did

not voluntarily consent because his answer to Hasty"was not

unequivocal and specific and was not sufficient to constitute a consent

to the search of his vehicle."

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The district court concluded that Chavez was asked twice for permission to search his vehicle and granted permission both times. The

court also made factual findings that Chavez graduated from high

school in Texas and that while Spanish was spoken in his home, Chavez engaged in commercial and educational activities that made the

meaning of the English language clear to him. It therefore denied the

motion to suppress.

II.

When the subject of a search freely and voluntarily gives consent

for a search, the search is constitutionally permissible even without

probable cause or a warrant. See Schneckloth v. Bustamonte, 412 U.S.

218, 222 (1973). Whether consent to search was freely and voluntarily given is a factual question to be determined by the totality of the

circumstances. See Schneckloth, 412 U.S. at 227. "In viewing the

totality of the circumstances, it is appropriate to consider the characteristics of the accused (such as age, maturity, education, intelligence,

and experience) as well as the conditions under which the consent to

search was given (such as the officer's conduct; the number of officers present; and the duration, location, and time of the encounter)."

United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). Whether

Chavez knew that he possessed a right to refuse consent also is relevant in determining the voluntariness of consent, although the Government need not demonstrate that Chavez knew of his right to refuse.

See id.

The voluntariness of consent to search is a factual question, and we

affirm the determination of the district court unless its finding is

clearly erroneous. See id. And, when the lower court bases its finding

of consent on the oral testimony at a suppression hearing, the clearly

erroneous standard is particularly strong since the court observed the

demeanor of the witnesses. See id. at 650-51.

Chavez's primary argument is that, as an American of Hispanic

descent, he did not understand the officer's requests for consent

phrased as "do you mind if" and "you don't mind if I." Chavez asks

this court to reverse the denial of his suppression motion because

"cultural and language barriers can result in a different interpretation

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being given to requests and responses to the requests which could

affect" the court's ruling on voluntariness.

Based on our review of the totality of the surrounding circumstances, we cannot say that the factual finding of the district court that

Chavez's consent was voluntary was clearly erroneous. The district

court's factual findings concerning Chavez's personal characteristics

and the conditions under which Chavez consented are well-supported

by the record. In addition, Chavez testified that he knew he had the

right to say no to the search and Chavez had prior experiences with

the police and criminal justice system. See Lattimore, 87 F.3d at 651.

Because we conclude that Chavez's claim is without merit, we

affirm. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the Court

and argument would not aid the decisional process.

AFFIRMED

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