## 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. *-2- ___________ 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 tr ansported 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 e rred in finding that police reasonably relied on the real or apparent authority of their cousin Sergio Almeida-Alvarez to c onsent to police entry of the Almeida house. They also contend th at the district court erred in finding that the other occupants of their house consente d to police entering José's and Porfirio's bedrooms. They challenge the district c ourt's credibility determinations, which they contend rest on mutually inconsistent findi ngs. Finally, they challenge the district court's determination at sentencing that they possessed the firearms in connection with possession of cocaine. We affirm the distri ct court's denial of the suppression motion, but we remand for clarification of the findings at sentencing.

Our recitation of the facts is complicat ed 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 prosecuti on or defense. Therefore, we will tell the story several times in or der to fairly present the s cenario faced by the Magistrate Judge who heard the testimony in this case.-3- Kansas City, Missouri police detective Lu is Ortiz was the principal actor on the police side of this case by virtue of the f act 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 in formant that a Hispanic male called "Sinaloa" was selling drugs out of the hous e at 5115 East 22nd Street in Kansas City and that he had weapons. Ortiz had surv eilled the house on July 5 and 6 and had seen people going in and out of the house. Or tiz 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 i nvestigate 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 intr oduced himself and Raggs, explained that they were conducting a narcotics i nvestigation, 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 Se rgio whether he "had any interest in the house." According to Ortiz, Sergio "was very c ooperative, and he inv ited 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. Ra ggs testified that the person who answered this question was Maria Juarez-Galaviz, Porfi rio's wife, and that she said her husband Porfirio was in a bedroom, and she gestured to ward 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) we re 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-4- they said yes. Raggs, who s poke 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 himsel f 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, knoc ked, 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 Joséand 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 narc otics investigation and that Immigration and Customs Enforcement was involved becausethe police had information that there were illegal aliens there. He asked w ho 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 consen t to search form written in English and explained to the three of them in Spanis h that it was up to them whether to give permission to search the house. They all si gned the consent form. Ortiz testified that during this conversation, th e 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 we re any narcotics in the house and Porfirio answered that there was some cocaine. Porfirio looked around for some cocaine, but-5- 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 st ayed 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 a nd 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 alrea dy 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 th e 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 visiti ng 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 Pe rez, 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 thei r 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-6- it ahead of him. Sergio h eard 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 testif ied that the police came in and told the family that they had information that ther e were guerillas there. She said the police made them line up against the wall with th eir hands up. The police took their guns out and pointed them at the family. She said Ortiz and another offi cer entered Porfirio's bedroom without asking anyone's permissi on and that Ortiz had his gun drawn and pointed it at Porfirio. Maria Juarez said there were ten officer s in the house and that while the family were lined up in the livi ng room, one officer wa s 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 th ey began, but she signed a form after the police were done with the search because th e 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, Porfi rio and José's mother, was similar to Maria Juarez's story. Urbana testified th at 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 th ey 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-7- 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 Porfiri o's teenaged sister, told a somewhat different story. She said that she wokeup to see a black man with a gun waking up her brother. (She late r referred to Officer Raggs as "the black guy from immigration.") She said that Ortiz was also there and that he poi nted a gun at the bed where she was lying. She said she had ne ver seen the rifle inher 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 sa w 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 woul d 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 hi s room was not visible to anyone who was not standing inside the room. He said thatwhen 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. Porfiri o saw an officer with a bat, but he never saw him waving it. He said that the officer s 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 al so said that the next day when he was in custody, Ortiz threatened him that if hedid 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 testifie d that he assisted with the "knock and talk," and that he came into the house to a ssist Raggs and Ortiz in maintaining control.-8- He said the family were seated on a c ouch 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 hi m that they had permission to search. His best guess was that the family were insidethe 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 draw n, but it probably would have been pointed at the ground.

Porfirio and José both waived thei r Miranda rights in custody and gave statements. Porfirio admitted having provided the cocaine to his brother, and José admitted the cocaine belonged to him. Po rfirio 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 hi s room. Porfirio and José both said the guns were used for hunting rabbits ata ranch. Both admitted th at they were in the United States illegally. Both were charged with possession by an illegal a lien of firearms that have been transported in interstate commerce.

Porfirio and José moved to suppress the re sults 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 th e various members of the Almeida family. The Magistrate Judge found as follows: (1) When the officers approached Serg io, having seen him going in and out of the house during surveillance, they asked Se rgio to take them inside and "Sergio Almeida-Alvarez was very cooperative a nd he invited the officers inside the residence." Sergio entered the house without knocking. (2) When Ortiz and Raggs entered th e 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 w hy he was there. The family members "motioned towards the bedroom s" and said that Porfirio was in one and José and-9- Maria Almeida in the other. Ortiz aske d 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 th e living room. Only Ortiz proceeded to Porfirio's room, where he knocked and opene d 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 inves tigation. All the family we re 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, an d 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. Ho wever, 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 Mari a 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-10- the family members' version of events. Fo r 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 reas ons for rejecting the testimony of Urbana Perez. Some of these reas ons 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 residen ce, and therefore he recommended denial of their motion to suppress.

The district court reviewed the recordde novo and adopted and affirmed the Magistrate Judge's findings. In particular, the district court cite d the conflicts between the testimony offered by the de fendants, the internal inc onsistencies in particular witnesses' testimony, and the "general unr easonableness" of their testimony. The court rejected the story of coercion and threats: "In short, th e Court does not believe the officers implicitly threatened the occu pants 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 sp ecifically preserved the Almeidas' rights to appeal the denial of their suppression motion and certain sentencing issues,-11- including whether they should receive an e nhancement of their offense level under the Sentencing Guidelines for possessing the fir earms 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 unde r USSG § 2K2.1(b)(6) for possessing the firearms with knowledge, intent, or reason to believe th at they would be used or possessed in connection with another fe lony. 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, a nd particularly describing th e place to be searched, and the person or things to be seized. Generally, the Fourth Amendment require s 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 defe ndant'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 th ird 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 de fendant does not object, seeGeorgia v. Randolph , 547-12- U.S. 103, 122-23 (2006); United States v. Hudspeth , 518 F.3d 954, 960-61 (8th Cir. 2008) (en banc) (holding that defendant mustbe 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 havethe 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 Alme ida 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 Porfiri o 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 cont rol." United States v. James , 353 F.3d 606, 613 (8th Cir. 2003). However, whether th e 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 th e house because (1) they had seen him going in and out of the house during surveillance, (2) he was sitting on-13- 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 reas onable, even though the occupant did not consent to the search, if "the facts available to the officerat 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 exp licit 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 infere nces from what they see and hear, even though further inquiry might prove the infe rences 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 th ere, 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.-14- 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 he r 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 th ere; we held the po lice 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 th e house without knocking, gestured for the police to follow her in, and refe rred 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 Ci r. 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 helooked inside and found drugs. We held that the policeman was entitled to infer fro m 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 beproper for an occupant of the house, the police may draw the inference that the person is i ndeed an occupant unless there are other circumstances that would cause a reasonable man to doubt the validity of that inference. This precept is consis tent with the reasoning of Randolphand 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 ).-15- Here, the Magistrate Judge found that Sergio Almeida had been seen going into and out of the house without knocking, he wa s 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 ge stures would only be appropriate for someone who had been granted the freedom of the dw elling, 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 alerte d the police that Sergio Almeida was not in fact an inmate of the house. It follo ws 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 th e 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. SeeFlorida v. Jimeno , 500 U.S. 248, 251-52 (1991). On the other hand, if part of a dwe lling is appropriated for the exclusive use of one occupant, ot her inmates of the house have no right to consent to police entry of the space from wh ich 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 ownconsent, 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 th e right to enter an area within the house, the police are allowed to rely on facts th at 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 obtaine d consent to enter an apartment from Squire, who rented the apar tment, and then relied on her consent and the key she supplied to search a locked cabinet. Th e police were entitled to rely on Squire's apparent authority over the cabinet in accepti ng her consent to the search. They were not obliged to inquire about who owned the cabinet or its contents. Id. ; see also-16- 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 noti ce 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 cons ent 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 moth er, 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). Itwould be more accurate to say that the nonconsenting spouse must show th at 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 th e people inside. The district court's legal conclusions in denying the suppression motion were sound.-17- II.

The Almeidas attack not only the district court's legal conclusions about the reasonableness of consent, but also th e credibility determinations underlying the Magistrate Judge's findings of historical f act. 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 view s of the evidence, the fact-finder's choice between them cannot be clearly err oneous. United States v. Tucker , 243 F.3d 499, 506 (8th Cir. 2001) (discussing Ande rson 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 cl early 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 storie s 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 di d point to inconsiste ncies among witnesses' testimony, which he concluded indicated ge nerally that the Almeida family members were gilding the lily in portraying an atmos phere of fear and coercion, but this does not mean that he had to accept one particular witness's version inorder to use it to impeach the others. He simply concluded th at significant variations in such details as whether or not an officer was threatening the family by swinging a baseball bat in the-18- small, crowded living room suggested fabri cation of the episode. We see no internal inconsistencies rendering the findings of fact clearly erroneous.

III.

Embedded in the point on appeal concer ning 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 th at 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 thatthe defendants did not object on either ground in the district court. While werecognize the difficulty for a litigant in objecting to actions of the judge presidi ng 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 a ny error into which he may have fallen. Therefore, we will review the Magistra te Judge's actions under the plain error standard, Fed. R. Crim. P. 52(b). On plai n 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).-19- Federal Rule of Evidence 614(b) pr ovides, "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 questi on witnesses] is, of course, abused when the judge abandons his proper ro le 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 c ourts of review from continuing to reverse for abuse.

We have indeed reversed wh ere the district court's ques tioning tended to give the jury the impression that the court favored th e 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 recogni zed 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 factthat 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 co mment less inappropriate because made outside presence of jury). We therefore find no basis to reverse on account of the Magistrate Judge's interr ogation of the witnesses.

Similarly, the Magistrate Judge's inqui ry 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 instan ces 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 , 168-20- 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 us e 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 w ould 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 indi vidual'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 Fe deral Rules of Evidence require link between unconvicted conduct s ought to be shown and truthfulness); United States v. Ndiaye , 434 F.3d 1270, 1290 (11th Cir. 2006) (le tter apparently pr oposing adulterous liaison "does not directly relate to . . . truthfulness and honesty" and therefore should not have been admitted). Agai n, we conclude that if the Magistrate Judgeerred, it was not plain error. Furthermore, the Magistrate Judge's findings concerning each witness were lengthy and depende d 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 c onnection with another felony if it facilitates that felony or has the potentia l to facilitate it. USSG § 2K2.1, cmt. (n.14). The district court relied on our cas e law, stating, "Let me be gin 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 fac ilitate 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 deci ded United States v. Fuentes Torres , 529 F.3d 825 (8th Cir. 2008), in which we held th at 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 trafficki ng, the district court must apply the enhancement unless it is clearly impr obable that the guns were possessed in connection with the drug offense. The district court apparently relied on this mandatory rule, as would have been reasonabl e 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 de fendant] 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 fe lony is simple possession of drugs, the district court should apply the enhan cement 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 resi due that was actually found. United States v. Smith , 535 F.3d 883 (8th Cir. 2008).-22- In this case, the guns were found w ithin 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 distri ct court would have erred in applying the "clearly improbable standard."

In addition to the possession, the districtcourt stated that the large amount of cash seized was suggestive of drug trafficki ng, but the record is not clear that the district court actually made a finding that th e money established trafficking. Earlier, the court had stated, "I'm not sure it's necessa ry for me to find that it was, that there was drug trafficking going on . . . . I don't th ink 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 ba se 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 di d not appear to base a trafficking finding on the presence of cash in the house.

Only Porfirio was found to have distribut ed cocaine, which would mean that the "clearly improbable" standardwould 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 onl y 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 befo re 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 th e 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 clar ifications of our law, the district court erred in holding without the necessary predi cate findings that it was required to apply the enhancement unless a connection betw een the drugs and the guns was clearly improbable. Applying the enhancement requi res 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 th e 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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