United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-2602

___________

United States of America, *

*

Plaintiff - Appellee, *

* 

v. * 

* 

Porfirio Almeida-Perez, also known as *

Javier Medina-Rios, *

*

Defendant - Appellant. *

___________

Appeals from the United States

No. 07-2635 District Court for the Western

___________ District of Missouri.

United States of America, *

*

Plaintiff - Appellee, *

*

v. *

*

José Almeida-Perez, also known as *

José Alvaro-Lara, *

*

Defendant - Appellant. *
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___________

Submitted: February 12, 2008

Filed: December 16, 2008

___________

Before WOLLMAN, JOHN R. GIBSON, and SHEPHERD, Circuit Judges.

___________

JOHN R. GIBSON, Circuit Judge.

José and Porfirio Almeida-Perez, brothers who pled guilty to being illegal aliens

in possession of firearms that had been transported in interstate commerce, 18 U.S.C.

§ 922(g), appeal from the district court's denial of their suppression motion and from

the twenty-four month sentences it imposed on each of them. The Almeidas contend

that the district court erred in finding that police reasonably relied on the real or

apparent authority of their cousin Sergio Almeida-Alvarez to consent to police entry

of the Almeida house. They also contend that the district court erred in finding that

the other occupants of their house consented to police entering José's and Porfirio's

bedrooms. They challenge the district court's credibility determinations, which they

contend rest on mutually inconsistent findings. Finally, they challenge the district

court's determination at sentencing that they possessed the firearms in connection with

possession of cocaine. We affirm the district court's denial of the suppression motion,

but we remand for clarification of the findings at sentencing.

Our recitation of the facts is complicated by the problem that the testimony at

the suppression hearing varied at almost every important particular, depending on

whether the witness was called by the prosecution or defense. Therefore, we will tell

the story several times in order to fairly present the scenario faced by the Magistrate

Judge who heard the testimony in this case. 
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Kansas City, Missouri police detective Luis Ortiz was the principal actor on the

police side of this case by virtue of the fact that he was the only officer involved who

was fluent in Spanish. Before the date of the entry at issue here, July 6, 2006, police

had received a report from a confidential informant that a Hispanic male called

"Sinaloa" was selling drugs out of the house at 5115 East 22nd Street in Kansas City

and that he had weapons. Ortiz had surveilled the house on July 5 and 6 and had seen

people going in and out of the house. Ortiz and Tracy Raggs, an Immigration and

Customs Enforcement agent, decided to go up to the house for a "knock and talk," in

other words, to see if they could investigate by consent of the suspects. 

Ortiz and Raggs walked up to the house, where Sergio Almeida was sitting on

the front porch. Ortiz said that he introduced himself and Raggs, explained that they

were conducting a narcotics investigation, and asked if they could "talk about it

inside." Ortiz said that during surveillance, he had seen Sergio going in and out of the

house, but he did not ask Sergio whether he "had any interest in the house."

According to Ortiz, Sergio "was very cooperative, and he invited us inside the

residence." Sergio walked into the house without knocking, and Ortiz and Raggs

followed him in, their sidearms still in the holsters. 

Inside the house they found three or four people in the living room. Ortiz

explained in Spanish who he and Raggs were and why they were there. Ortiz asked

if there was anyone else in the house. Raggs testified that the person who answered

this question was Maria Juarez-Galaviz, Porfirio's wife, and that she said her husband

Porfirio was in a bedroom, and she gestured toward it. Ortiz testified that "they" (the

people in the living room) gestured toward the northeast bedroom and said Porfirio

was there, then toward the west bedroom and said that José and Maria (AlmeidaPerez, teenaged sister to Jose and Porfirio) were in that room. Ortiz said that he asked

them "if I could knock on the door and see if they wanted to come outside, if it was

okay that I could go and knock on the door and call them to the living room," and that
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they said yes. Raggs, who spoke little Spanish, said that Ortiz asked Maria if he could

go in the bedrooms, and Maria said yes. 

While Raggs stayed with the family in the living room, Ortiz went to Porfirio's

room, knocked on the door, identified himself as police, and then opened the door.

When Ortiz opened the door, he saw a black shotgun next to the bed where Porfirio

was sleeping. Ortiz asked Porfirio to come out to the living room, which he did. Ortiz

radioed for another officer, Detective Michael Miller, to come as backup. Ortiz and

Miller then went to the other bedroom, knocked, and identified themselves as police.

Ortiz opened the door and saw Maria Almeida-Perez on the bed and José asleep on the

floor with a rifle at his side. On cross-examination, Ortiz admitted that he entered

both bedrooms. He asked José and Maria to come to the living room, which they did.

Once all the occupants of the house were gathered in the living room, Ortiz told

them that the police were conducting a narcotics investigation and that Immigration

and Customs Enforcement was involved because the police had information that there

were illegal aliens there. He asked who was responsible for the house and was told

that Porfirio, Maria Juarez, and José were. He also asked for permission to search the

house for narcotics, weapons, and currency, and the three said that they had no

problem with that. Ortiz produced a consent to search form written in English and

explained to the three of them in Spanish that it was up to them whether to give

permission to search the house. They all signed the consent form. Ortiz testified that

during this conversation, the occupants of the house were sitting in the living room,

mostly along the east wall, some in chairs and some on the floor. Ortiz said that

neither he nor Raggs had their guns drawn. 

With the permission of the occupants, Ortiz called in still more officers and

began the search. He asked if there were any narcotics in the house and Porfirio

answered that there was some cocaine. Porfirio looked around for some cocaine, but
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could not find it; he commented that everybody in the house used cocaine, so someone

probably had used the cocaine he was looking for. 

Raggs said that during the search, he stayed in the living room, talking to the

occupants of the house about their immigration status. He said that they were "very

cooperative" and that he and the occupants were "just kind of joking" and "talking

about all kinds of stuff." Raggs said that he did not have his gun drawn, the occupants

were not handcuffed or arrested, and he did not ask them to face the wall. Raggs said

he asked Porfirio, José, and the others in Spanish whether they had entered this

country legally or illegally; they answered, "Ilegal." 

The search produced the two guns already mentioned, as well as one other

shotgun found up in the attic, $19,353 in cash, and less than a gram of cocaine, which

was found inside a shoe in José's room. After the search, the police moved the family

out to the back yard so the police could bring in a drug-sniffing dog, which alerted to

the cash, indicating that it smelled of cocaine. 

In contrast to the congenial atmosphere described by Ortiz and Raggs, the scene

described by the Almeida family was one of strife and coercion. Sergio Almeida

testified that he was visiting at his cousins' house on July 6 when two police officers

walked up; he was told (not asked) to go inside, which he did without asking

permission from the people who lived there. They went into the living room, where

they met Vinancio Almeida and Urbana Perez, parents of Porfirio; Maria Juarez,

Porfirio's wife; and Manuel Perez, Porfirio's uncle. Sergio said that Ortiz told them

to line up against the wall, to put their hands on the wall, and not to move. The police

frisked them. The police did not have their guns drawn, but they had their hands on

their weapons. According to Sergio, the officers did not ask permission to go get

Porfirio and José or to search the house. Sergio recounted that another officer went

into Porfirio's room with Ortiz and that the officer had his gun out and was pointing
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it ahead of him. Sergio heard the police ask Porfirio if he had any drugs, and Porfirio

answered that he did have some for personal use. 

Maria Juarez, Porfirio's wife, also testified that the police came in and told the

family that they had information that there were guerillas there. She said the police

made them line up against the wall with their hands up. The police took their guns out

and pointed them at the family. She said Ortiz and another officer entered Porfirio's

bedroom without asking anyone's permission and that Ortiz had his gun drawn and

pointed it at Porfirio. Maria Juarez said there were ten officers in the house and that

while the family were lined up in the living room, one officer was swinging a baseball

bat menacingly for ten minutes. She said that she was not allowed to talk to her

husband during the search, which went on for three hours. She also said no one asked

for permission to search the house before they began, but she signed a form after the

police were done with the search because the police told them if they did not sign it,

they would all be arrested. She did not understand the form because it was in English,

and no one ever told them that they had a right to withhold permission to search the

house. However, she also testified that the family all admitted to the immigration

officer that they were in the country illegally, and yet Ortiz told them that "there was

no problem. That they weren't going to take us." Maria Juarez recounted that Ortiz

had asked Porfirio if he had any drugs, and Porfirio said he had some for personal use.

The story of Urbana Perez-Lopez, Porfirio and José's mother, was similar to

Maria Juarez's story. Urbana testified that one officer was waving a stick at Maria

Juarez and threatening her with it; that Urbana had to stand facing the wall for more

than an hour; that the police never asked for permission to search until they were

almost finished with the search; and that they told Porfirio and Maria that if they did

not sign the consent form, the whole family would be arrested. However, Urbana

said, on examination by the court, that as soon as the officers came in the house with
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Sergio, "they said we're not going to take you all" and that they were not going to

arrest them despite their illegal immigration status. 

Maria Almeida-Perez, José and Porfirio's teenaged sister, told a somewhat

different story. She said that she woke up to see a black man with a gun waking up

her brother. (She later referred to Officer Raggs as "the black guy from

immigration.") She said that Ortiz was also there and that he pointed a gun at the bed

where she was lying. She said she had never seen the rifle in her bedroom until the

police found it that day. Maria Almeida said the family were made to stand with their

hands against the wall and that they were inside the house for about a half-hour before

the police moved them outside. She never saw an officer with a bat, but the officers,

including Raggs, pointed guns at the family so that they would not move. She said

that when Ortiz asked Porfirio if there were drugs in the house, Porfirio said no. She

denied ever being told that the family would not be taken into Immigration, and in fact

she said they were told they were going to be taken into immigration. 

Porfirio testified. He said no one asked whose house it was until the search was

accomplished. He said that the gun in his room was not visible to anyone who was

not standing inside the room. He said that when Ortiz asked him if he had drugs in

the house, he replied no, but he later admitted that he tried to show the police where

a small quantity of drugs was located. Porfirio saw an officer with a bat, but he never

saw him waving it. He said that the officers told him the day of the search that they

were not concerned that the whole family was in the country illegally and that there

was "no problem with that." However, he also said that the next day when he was in

custody, Ortiz threatened him that if he did not sign a Miranda consent form, Ortiz

would arrest the family for "conspiracy." 

The defendants called one police officer as a witness. Kansas City Police

Department detective Michael Miller testified that he assisted with the "knock and

talk," and that he came into the house to assist Raggs and Ortiz in maintaining control.
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He said the family were seated on a couch with a few of them along the wall opposite

the couch. He did not remember seeing them facing the wall with their arms up. He

helped with the search after Ortiz told him that they had permission to search. His

best guess was that the family were inside the house about thirty minutes before going

out to the back yard. He never saw anyone waving a bat at the occupants of the house.

He said it was possible he had his gun drawn, but it probably would have been pointed

at the ground. 

Porfirio and José both waived their Miranda rights in custody and gave

statements. Porfirio admitted having provided the cocaine to his brother, and José

admitted the cocaine belonged to him. Porfirio said the guns belonged to him, but

José said he had handled one of the firearms when showing it to a friend and that after

the friend's visit, the rifle was left in his room. Porfirio and José both said the guns

were used for hunting rabbits at a ranch. Both admitted that they were in the United

States illegally. Both were charged with possession by an illegal alien of firearms that

have been transported in interstate commerce. 

Porfirio and José moved to suppress the results of the search. After hearing the

testimony outlined above, the Magistrate Judge made a report and recommendation

including extensive findings of fact generally accepting the police officers' story and

rejecting as incredible the testimony of the various members of the Almeida family.

The Magistrate Judge found as follows:

(1) When the officers approached Sergio, having seen him going in and out of

the house during surveillance, they asked Sergio to take them inside and "Sergio

Almeida-Alvarez was very cooperative and he invited the officers inside the

residence." Sergio entered the house without knocking. 

(2) When Ortiz and Raggs entered the house, they did not have their guns

drawn. When they encountered three or four family members in the living room,

Ortiz identified himself and explained why he was there. The family members

"motioned towards the bedrooms" and said that Porfirio was in one and José and
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Maria Almeida in the other. Ortiz asked if he could knock on the bedroom door and

Maria Juarez said, "Yes." Ortiz obtained her permission to go into the bedrooms to

get the occupants and bring them to the living room. Only Ortiz proceeded to

Porfirio's room, where he knocked and opened the door. Ortiz saw a shotgun in plain

view "immediately upon stepping into the room." After seeing the gun, he called

Detective Miller to come in and help. Ortiz then proceeded to the west bedroom, and

again he knocked and opened the door. He saw Maria Almeida on the bed and José

asleep on the floor next to a rifle. 

(3) When the family were assembled in the living room, Ortiz explained that he

was conducting a narcotics investigation. All the family were sitting in chairs or on

the floor in the living room, against a wall. Ortiz asked who was responsible for the

house, and he was told that Porfirio, his wife Maria Juarez, and José lived there.

Ortiz asked for permission to search the house for narcotics, weapons, and currency.

"Porfirio, José and Maria showed a desire to cooperate, said they had nothing to hide,

and stated that they did not have any problem with the officers searching the

residence." Ortiz produced a consent to search form, explained what it was, and told

the three residents that they did not have to give consent or sign the form if they did

not want to. Porfirio, Maria Juarez, and José signed the form. 

(4) Ortiz said he wanted to bring in more police to conduct the search, and the

residents said that was okay. Ortiz asked Porfirio if there were drugs in the house and

Porfirio replied there was some cocaine. However, Porfirio was not able to locate the

cocaine, and he told Ortiz that everyone in the house used cocaine, so someone had

probably used it up. 

(5) "At no time did Porfirio, José, or Maria refuse to consent to the search or

object while the search was taking place. Instead, they were very cooperative. No

officer made any threats or promises . . . ." (record citations omitted). The entire

incident took about one hour. 

The Magistrate Judge discussed at length the ways in which the family

members' testimony differed from his findings, and he set out his reasons for rejecting
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the family members' version of events. For instance, the Magistrate Judge gave a list

of twelve reasons for rejecting the credibility of Sergio, seven reasons for rejecting the

testimony of Maria Juarez, and eight reasons for rejecting the testimony of Urbana

Perez. Some of these reasons were internal conflicts within the same witness's

testimony, some were conflicts between one family member's testimony and another's,

and some were implausibilities in the family members' stories. Additionally, in his

discussion of each family member's credibility, the Magistrate Judge listed

prominently that the person in question was "in the United States illegally." For

instance, in his discussion about Urbana Perez, the Magistrate Judge stated, "Ms.

Perez-Lopez is in the United States illegally. Her willingness to break the law in that

respect diminishes her credibility."

In conclusion, the Magistrate Judge held that the defendants voluntarily

consented to the search of their residence, and therefore he recommended denial of

their motion to suppress. 

The district court reviewed the record de novo and adopted and affirmed the

Magistrate Judge's findings. In particular, the district court cited the conflicts between

the testimony offered by the defendants, the internal inconsistencies in particular

witnesses' testimony, and the "general unreasonableness" of their testimony. The

court rejected the story of coercion and threats: "In short, the Court does not believe

the officers implicitly threatened the occupants with a baseball bat." The court

specifically found that the officers had reason to believe that Sergio Almeida had the

authority to allow entry into the house and that the officers received voluntary consent

before searching the house. 

Porfirio and José entered agreements to plead guilty to being an illegal alien in

possession of firearms. The agreements specifically preserved the Almeidas' rights

to appeal the denial of their suppression motion and certain sentencing issues, 
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including whether they should receive an enhancement of their offense level under the

Sentencing Guidelines for possessing the firearms in connection with another felony.

The district court accepted their pleas. At the sentencing hearing, the district

court found that both the Almeidas should receive a four-level enhancement of their

sentencing offense levels under USSG § 2K2.1(b)(6) for possessing the firearms with

knowledge, intent, or reason to believe that they would be used or possessed in

connection with another felony. Each defendant was sentenced to twenty-four

months' imprisonment and three years' supervised release. 

I.

Under the Fourth Amendment, 

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be searched, and

the person or things to be seized. 

Generally, the Fourth Amendment requires the police to obtain a warrant before

entering a home. Payton v. New York, 445 U.S. 573, 590 (1980). Where, as here, the

police have entered a defendant's house without a warrant, the burden is on the

prosecution to prove that the police acted pursuant to a valid exception to the warrant

requirement. United States v. Weston, 443 F.3d 661, 667 (8th Cir. 2006). One such

exception is consent. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). The

police may enter and search a defendant's house with the voluntarily given consent of

the defendant or with the consent of a third party who shares "common authority over

the premises or effects" to be searched, United States v. Matlock, 415 U.S. 164, 170

(1974), provided that the defendant does not object, see Georgia v. Randolph, 547
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U.S. 103, 122-23 (2006); United States v. Hudspeth, 518 F.3d 954, 960-61 (8th Cir.

2008) (en banc) (holding that defendant must be physically present to overrule thirdparty's consent). Even if the police make a mistake of fact about the third party's

authority over the premises, the search will be legal if the circumstances lead the

police reasonably to believe that they have the consent of a third party with common

authority. Illinois v. Rodriguez, 497 U.S. 177, 184-86 (1990).

This case raises two questions of third party consent: did the police have

sufficient reason to believe that Sergio Almeida had authority to consent to their entry

of the house? And did they have sufficient reason to believe that the Almeida family

members in the living room had authority to consent and in fact consented to their

entry of the bedrooms where José and Porfirio were sleeping with their guns at their

sides?

In the appeal from a suppression ruling, we review for clear error the questions

of historical fact, such as who said what. See Ornelas v. United States, 517 U.S. 690,

699 (1996); United States v. Elam, 441 F.3d 601, 603 (8th Cir. 2006). Whether the

third party expresses consent is a question of fact. See Iron Wing v. United States, 34

F.3d 662, 665 (8th Cir. 1994); see also United States v. Jones, 254 F.3d 692, 695 (8th

Cir. 2001) ("The determination of whether Jones expressed consent is a question of

fact, which we review for clear error."). Whether the consenter had common authority

over the premises is also a question of fact and is determined by the existence of

"mutual use, joint access, and control." United States v. James, 353 F.3d 606, 613

(8th Cir. 2003). However, whether the reliance by police on indicia of common

authority was reasonable is a question of law that we review de novo. Id. at 615;

Weston, 443 F.3d at 668. 

The question on entry of the house is whether police could have reasonably

concluded that Sergio Almeida had authority to let them in the house because (1) they

had seen him going in and out of the house during surveillance, (2) he was sitting on
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the porch when they arrived, (3) he invited them inside without indicating that he had

no authority to do so, and (4) he preceded them into the house without knocking or

asking permission of anyone. 

In Illinois v. Rodriguez, 497 U.S. 177 (1990), the Supreme Court held that a

warrantless entry of a house might be reasonable, even though the occupant did not

consent to the search, if "the facts available to the officer at the moment . . . [would]

warrant a man of reasonable caution in the belief that the consenting party had

authority over the premises[.]" Id. at 188 (internal quotation marks omitted). The

Court put some responsibility on the officer to assess the situation critically: "Even

when the invitation is accompanied by an explicit assertion that the person lives there,

the surrounding circumstances could conceivably be such that a reasonable person

would doubt its truth and not act upon it without further inquiry." Id. Nevertheless,

police are entitled to draw the usual inferences from what they see and hear, even

though further inquiry might prove the inferences wrong. In Georgia v. Randolph,

547 U.S. 103 (2006), Justice Souter considered it legitimate for police to rely on the

"common understanding" of the meaning of the facts they encounter:

When someone comes to the door of a domestic dwelling with a baby at

her hip, as Mrs. Graff did [in United States v. Matlock, 415 U.S. 164

(1974)], she shows that she belongs there, and that fact standing alone is

enough to tell a law enforcement officer or any other visitor that if she

occupies the place along with others, she probably lives there subject to

the assumption tenants usually make about their common authority when

they share quarters.

Id. at 111. The Court in Randolph recognized that the police cannot rely on the

assumption that the people in a particular household hew to conventional

arrangements when atypical "specialized tenancy arrangements" should be apparent

from what they see and hear. 547 U.S. at 110.
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Some circuits have interpreted these precedents to require police to go behind

appearances to verify third party authority. See, e.g., United States v. Cos, 498 F.3d

1115, 1128-31 (10th Cir. 2007); United States v. Whitfield, 939 F.2d 1071, 1074-75

(D.C. Cir. 1991). Our circuit precedent, however, has been more liberal about

allowing police to form their impressions from context. For instance in Iron Wing v.

United States, 34 F.3d 662, 665 (8th Cir. 1994), we held police acted permissibly in

letting the defendant's sister-in-law admit them to his house, even though she had no

key and had to crawl in the window. They were entitled to rely on her statement that

she lived at the house and had left her bedroom window unlocked, which was

corroborated when she was able to open that window. In Weston, the defendant's exwife was at his trailer when he was not there; we held the police could rely on the

appearance that she was in charge. 443 F.3d at 668. Similarly, in United States v.

Janis, 387 F.3d 682, 687 (8th Cir. 2004), police did not violate the Fourth Amendment

where a friend of the defendant entered the house without knocking, gestured for the

police to follow her in, and referred to a room as "her room." We held, "The officers

in this case had no reason to doubt Albert's authority to invite them into the house."

Id. In United States v. Pennington, 287 F.3d 739, 746 (8th Cir. 2002), a man named

Vickery was in Pennington's house; when a police officer asked about a Crown Royal

bag, Vickery tossed the bag to him and he looked inside and found drugs. We held

that the policeman was entitled to infer from Vickery's exercise of dominion over the

bag that it was his bag. Id. at 747. Our cases suggest that where a person exercises

privileges that would only be proper for an occupant of the house, the police may

draw the inference that the person is indeed an occupant unless there are other

circumstances that would cause a reasonable man to doubt the validity of that

inference. This precept is consistent with the reasoning of Randolph and Rodriguez,

that "it would be unjustifiably impractical to require the police to take affirmative

steps to confirm the actual authority of a consenting individual whose authority was

apparent." Randolph, 547 U.S. at 122 (discussing Rodriguez).
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Here, the Magistrate Judge found that Sergio Almeida had been seen going into

and out of the house without knocking, he was reposing on the front porch, he invited

the officers in without asking anyone's leave, and he preceded them in without

knocking. At least three of these four gestures would only be appropriate for someone

who had been granted the freedom of the dwelling, as Sergio implicitly admitted when

he said at the suppression hearing that he "should have asked for permission to enter

the house." On the historical facts as found by the Magistrate Judge, there were no

countervailing facts that should have alerted the police that Sergio Almeida was not

in fact an inmate of the house. It follows that the police reasonably relied on Sergio

Almeida's apparent authority to admit them to the house.

Once in the house, Ortiz's entry of the bedrooms poses a separate problem of

consent and authority to consent. Where a third party appears to have authority over

the entire premises, the police may rely on that person's consent to search throughout

the house, so long as the consent appeared to extend so far. See Florida v. Jimeno,

500 U.S. 248, 251-52 (1991). On the other hand, if part of a dwelling is appropriated

for the exclusive use of one occupant, other inmates of the house have no right to

consent to police entry of the space from which they themselves are excluded. "To

the extent a person wants to ensure that his possessions will be subject to a consent

search only due to his own consent, he is free to place these items in an area over

which others do not share access and control, be it a private room or a locked suitcase

under the bed." Randolph, 547 U.S. at 135 (Roberts, C.J., dissenting). Regardless of

whether the putative consenter actually has the right to enter an area within the house,

the police are allowed to rely on facts that would convince a person of reasonable

caution that the consenter has such authority. For instance, in United States v. Elam,

441 F.3d 601, 604 (8th Cir. 2006), police obtained consent to enter an apartment from

Squire, who rented the apartment, and then relied on her consent and the key she

supplied to search a locked cabinet. The police were entitled to rely on Squire's

apparent authority over the cabinet in accepting her consent to the search. They were

not obliged to inquire about who owned the cabinet or its contents. Id.; see also
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United States v. Hilliard, 490 F.3d 635, 639-40 (8th Cir. 2007); United States v.

Hinkle, 456 F.3d 836, 840-41 (8th Cir. 2006). But if the police encounter

circumstances that would put them on notice of limited authority, they may not ignore

such signals. See Randolph, 547 U.S. at 112 (a child of eight might have the power

to admit visitors to the family foyer, but obviously not to allow them to rummage

through his parents' bedroom).

In the same vein, certain relationships between the occupants may give rise to

the presumption that one has authority to consent to search of the other's property. For

instance, in United States v. Wright, 564 F.2d 785, 790 (8th Cir. 1977), where the

defendant was an adult living with his mother, the mother had authority to consent to

the search of his dresser. In United States v. Clark, 409 F.3d 1039, 1044 (8th Cir.

2005), police reasonably relied on a wife's permission to search a closet in which the

wife reported that the defendant often hid things; nothing in the circumstances showed

that the defendant had exclusive access to the closet. The Seventh Circuit has held

that "a spouse presumptively has authority to consent to a search of all areas of the

homestead; the nonconsenting spouse may rebut this presumption only by showing

that the consenting spouse was denied access to the particular area searched." United

States v. Duran, 957 F.2d 499, 505 (7th Cir. 1992). It would be more accurate to say

that the nonconsenting spouse must show that police had reason to know the area or

container was off-limits to the consenting spouse.

In this case, the testimony of Raggs supported the Magistrate Judge's finding

that Maria Juarez gave permission to enter the bedrooms. It was reasonable for Ortiz

to rely on the words and gesture of Maria Juarez, the proprietress of the house and the

wife of Porfirio, to conclude that he was authorized to push the doors open and step

in the rooms in order to communicate with the people inside. The district court's legal

conclusions in denying the suppression motion were sound.
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II.

The Almeidas attack not only the district court's legal conclusions about the

reasonableness of consent, but also the credibility determinations underlying the

Magistrate Judge's findings of historical fact. Where, as here, the district court

adopted the Magistrate Judge's findings, we review those findings for clear error.

United States v. Olivera-Mendez, 484 F.3d 505, 512 (8th Cir. 2007); United States v.

Spotts, 275 F.3d 714, 718 (8th Cir. 2002). 

Review for clear error requires a specific level of deference to the fact-finder's

views: where there are two permissible views of the evidence, the fact-finder's choice

between them cannot be clearly erroneous. United States v. Tucker, 243 F.3d 499,

506 (8th Cir. 2001) (discussing Anderson v. City of Bessemer City, 470 U.S. 564

(1985)). Credibility findings receive an even higher level of deference. Id.

Nevertheless, credibility findings can be clearly erroneous if they are internally

inconsistent. Id. 

The Almeidas argue that the Magistrate Judge's findings are internally

inconsistent because he discredited the testimony of the various members of the

Almeida family on the ground that their stories were inconsistent with each other, yet

he accepted as true some of their statements, such as Porfirio's statement to the police

that everyone in the house used cocaine. The Magistrate Judge was not obliged to

accept or reject each witness's testimony in its entirety, and the Almeidas do not

identify any instance in which the Magistrate Judge both accepted and rejected the

same statement. The Magistrate Judge did point to inconsistencies among witnesses'

testimony, which he concluded indicated generally that the Almeida family members

were gilding the lily in portraying an atmosphere of fear and coercion, but this does

not mean that he had to accept one particular witness's version in order to use it to

impeach the others. He simply concluded that significant variations in such details as

whether or not an officer was threatening the family by swinging a baseball bat in the
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small, crowded living room suggested fabrication of the episode. We see no internal

inconsistencies rendering the findings of fact clearly erroneous.

III.

Embedded in the point on appeal concerning inconsistent findings of fact, we

find an additional argument in Porfirio Almeida's brief. He contends that the

Magistrate Judge exceeded the bounds of Federal Rule of Evidence 614(b) in

examining the witnesses and that he erred in taking into account the witnesses' illegal

immigration status in making credibility determinations. It is true that the Magistrate

Judge engaged in sometimes extensive examination of the witnesses, including asking

them about whether they entered this country legally or illegally. 

As a threshold matter, we observe that the defendants did not object on either

ground in the district court. While we recognize the difficulty for a litigant in

objecting to actions of the judge presiding over their proceedings, it is nevertheless

true that without a trial level objection, there was no opportunity for the Magistrate

Judge to address the issue or correct any error into which he may have fallen.

Therefore, we will review the Magistrate Judge's actions under the plain error

standard, Fed. R. Crim. P. 52(b). On plain error review, we may reverse only if there

is an error that is plain (meaning "obvious") which the defendant can show affected

his substantial rights. United States v. Olano, 507 U.S. 725, 732-34 (1993). Once

these three elements are established, we may exercise our discretion about whether to

notice the error, guided by our assessment of whether the error "seriously affect[ed]

the fairness, integrity or public reputation of judicial proceedings." Id. at 736 (internal

quotation omitted).
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Federal Rule of Evidence 614(b) provides, "The court may interrogate

witnesses, whether called by itself or by a party." The Advisory Committee notes

qualify the rule by stating, 

The authority [of the judge to question witnesses] is, of course, abused

when the judge abandons his proper role and assumes that of advocate,

but the manner in which interrogation should be conducted and the

proper extent of its exercise are not susceptible of formulation in a rule.

The omission in no sense precludes courts of review from continuing to

reverse for abuse. 

We have indeed reversed where the district court's questioning tended to give the jury

the impression that the court favored the government and placed the defense at a

disadvantage. See United States v. Singer, 710 F.2d 431, 436 (8th Cir. 1983) (en

banc). However, we recognized that the extent and manner of a judge's questioning

were "matters of judgment and degree." Id. at 437. "A balancing test is used to

evaluate whether in the context of the overall record the court's questions destroyed

the fairness of a trial." United States v. Flying By, 511 F.3d 773, 776-77 (8th Cir.

2007). In this case we cannot say that the Magistrate Judge's questioning, if it was

error, was plain error. Certainly, the fact that the suppression motion was tried to a

Magistrate Judge, rather than to a jury, decreases the danger of prejudice to the

defendants from the Magistrate Judge's questioning. See United States v. Blood, 435

F.3d 612, 629 (6th Cir. 2006) (judge's comment less inappropriate because made

outside presence of jury). We therefore find no basis to reverse on account of the

Magistrate Judge's interrogation of the witnesses.

Similarly, the Magistrate Judge's inquiry about the circumstances under which

the witnesses entered this country falls short of plain error. Federal Rule of Evidence

608(b) authorizes the use of specific instances of conduct of a witness for the purpose

of attacking the witness's character for truthfulness. We have found two cases in

which unlawful entry into the country or other violation of immigration laws was

considered admissible because relevant to truthfulness. United States v. Cardales, 168
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F.3d 548, 557 (1st Cir. 1999); United States v. Cambindo Valencia, 609 F.2d 603,

633-34 (2d Cir. 1979). At the same time, we must say that the use of such evidence

is fraught with the danger of prejudice to a defendant by introducing the possibility

of invidious discrimination on the basis of alienage. See Fed. R. Evid. 403.

Moreover, the relevance of an immigration violation to character for truthfulness is

at the least debatable and would depend on the facts of the particular violation since

many immigration violations do not involve a false statement. See Figeroa v. United

States INS, 886 F.2d 76, 79 (4th Cir. 1989) ("An individual's status as an alien, legal

or otherwise, does not entitle the [Board of Immigration Appeals] to brand him a

liar."); see generally 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal

Evidence § 6:33 (3d ed. 2007) (stating that Federal Rules of Evidence require link

between unconvicted conduct sought to be shown and truthfulness); United States v.

Ndiaye, 434 F.3d 1270, 1290 (11th Cir. 2006) (letter apparently proposing adulterous

liaison "does not directly relate to . . . truthfulness and honesty" and therefore should

not have been admitted). Again, we conclude that if the Magistrate Judge erred, it was

not plain error. Furthermore, the Magistrate Judge's findings concerning each witness

were lengthy and depended on far more than the witness's violation of the immigration

laws. We therefore cannot say that the Almeidas have shown their substantial rights

were affected by any error in this regard.

IV.

Both the Almeidas contend that the district court erred in applying the fourlevel enhancement under USSG § 2K2.1(b)(6) for possessing the firearms in

connection with the possession of cocaine. The Almeidas argue that there was no

sufficient nexus between the firearms and the drugs justifying application of the

enhancement. A firearm is possessed in connection with another felony if it facilitates

that felony or has the potential to facilitate it. USSG § 2K2.1, cmt. (n.14). The

district court relied on our case law, stating, "Let me begin by repeating the standard

and that is that I have to find that it is clearly improbable that the guns were used, used
-21-

in connection with or to facilitate another felony offense. That's a very tough standard

for defendants to meet." Later, the district court referred to this rule as "the law of this

circuit that I'm bound by my oath to follow." 

After the date of sentencing we decided United States v. Fuentes Torres, 529

F.3d 825 (8th Cir. 2008), in which we held that different rules govern the application

of § 2K2.1(b)(6) in drug trafficking cases and drug possession cases. In cases in

which the other felony is drug trafficking, the district court must apply the

enhancement unless it is clearly improbable that the guns were possessed in

connection with the drug offense. The district court apparently relied on this

mandatory rule, as would have been reasonable in light of such cases as United States

v. Agee, 333 F.3d 864, 866 (8th Cir. 2003) ("The enhancement must be imposed

unless it is clearly improbable that [the defendant] possessed the firearm in connection

with another felony offense," and saying in the same paragraph, "Regardless of

whether those activities were manufacturing or simple possession or consumption, the

enhancement was proper."), and United States v. Linson, 276 F.3d 1017, 1018 (8th

Cir. 2002) (enhancement required where gun found in proximity to personal-use

amount of marijuana and paraphernalia associated with drug trafficking). However,

in Fuentes-Torres, we held that where the other felony is simple possession of drugs,

the district court should apply the enhancement only if it finds the guns "facilitated"

or "had the potential of facilitating" the possession offense. Id. at 828 n.2 (citing §

2K2.1, cmt. 14(A)). 

Moreover, another panel of our court has recently held that the government did

not prove a gun facilitated possession of a de minimis quantity of drug residue, where

the defendant possessed both items within his home, rather than carrying a firearm and

drugs out into the public, and there was no proof he had the gun at the same time he

had a greater amount of drugs than the residue that was actually found. United States

v. Smith, 535 F.3d 883 (8th Cir. 2008). 
-22-

In this case, the guns were found within the defendants' home and only a

personal use amount of drugs was in the house. Counsel for the government argued

at sentencing that the "clearly improbable" standard should apply even where the other

felony was possession of "user amounts." (Sent. Tr. 24) In light of Fuentes-Torres,

if these were the only facts found, the district court would have erred in applying the

"clearly improbable standard." 

In addition to the possession, the district court stated that the large amount of

cash seized was suggestive of drug trafficking, but the record is not clear that the

district court actually made a finding that the money established trafficking. Earlier,

the court had stated, "I'm not sure it's necessary for me to find that it was, that there

was drug trafficking going on . . . . I don't think it's necessary for me to make that

finding." (Sent. Tr. 11) Later, the court stated that the cash "almost shouts drug

trafficking to me," but "notwithstanding that belief" he would base the sentence on the

fact that there were two felonies involved--Porfirio's distribution of the cocaine to José

and José's possession of the cocaine. Thus, the district court did not appear to base

a trafficking finding on the presence of cash in the house.

Only Porfirio was found to have distributed cocaine, which would mean that the

"clearly improbable" standard would not apply to José. Moreover, at sentencing, the

court asked the counsel for the government, "How do we know that [Porfirio] had a

weapon at the time he obtained the drugs?" Counsel for the government responded,

"Well, we don't." (Sent. Tr. 24) In this respect, this case is similar to Smith, in which

we held that the evidence failed to establish a temporal link between the firearms and

the drug offense because the evidence only established that the defendant had

possessed the drug at some point in the past, not that he had done so while in

possession of the guns: "We do not know if Smith used or possessed

methamphetamine in his home in the days before the search or if he did, whether the

firearms were present in his home at the time." 535 F.3d at 886. Here, the evidence
-23-

did not establish when Porfirio distributed the cocaine to José, and so did not establish

that the gun offense and drug offense had been contemporaneous.

Thus, in light of the important recent clarifications of our law, the district court

erred in holding without the necessary predicate findings that it was required to apply

the enhancement unless a connection between the drugs and the guns was clearly

improbable. Applying the enhancement requires a finding either that the defendants

were engaged in drug trafficking at the same time they possessed the guns or the more

general finding that the guns facilitated or had the potential for facilitating a drug

offense. Both findings are lacking on this record. Although the evidence in this case

would apparently support either finding, fact issues are for the district court to decide.

We must therefore remand the sentences for clarification of the findings.

. . .

We affirm the district court's denial of the suppression motion, but we remand

for resentencing in accordance with this opinion.

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