[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 21, 2008
No. 07-11262 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00131-CR-RDP-HGD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PETER CHRISTIAN BOULETTE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(February 21, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Peter Christian Boulette appeals his convictions for possession with intent to
distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A),
possession with intent to distribute a substance containing methamphetamine, in
violation of § 841(a)(1) and (b)(1)(B), possession of a firearm in furtherance of a
drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), and possession of
a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal,
Boulette argues that the district court erred in finding that his girlfriend, Victoria
Thompson, voluntarily consented to a search of his apartment, and therefore, it
improperly denied Boulette’s motion to suppress evidence seized pursuant to that
search. Upon review of the record and the parties’ briefs, we discern no error.
Accordingly, we AFFIRM.
I. BACKGROUND
On March 31, 2005, agents of the Drug Enforcement Administration
(“DEA”) Task Force in Birmingham, Alabama arrested Boulette during a sting
operation in which Boulette gave a cooperating informant 220.7 grams of
methamphetamine in exchange for $7,750 in marked bills. Shortly after Boulette’s
arrest, Guy Warren, an agent with the Alabama Bureau of Investigation (“ABI”)
who was also assigned to the DEA Task Force in Birmingham, was dispatched to
Boulette’s apartment, where he was later joined by Agent Darryl Thistle. At
approximately 10:40 p.m., Agent Warren knocked on the door to Boulette’s
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apartment, and Thompson, Boulette’s live-in girlfriend, answered the door. Agent
Warren, who was wearing an ABI windbreaker, identified himself as a police
officer, and explained to Thompson that Boulette had just been arrested with a
large quantity of methamphetamine. Agent Warren told Thompson that while
conducting surveillance earlier that day, he had observed Boulette leaving the
apartment. Agent Warren asked Thompson if he could come in and talk to her, and
Thompson agreed.
During their conversation, Agent Warren asked Thompson for her consent to
search the home. At the hearing on Boulette’s oral motion to suppress evidence
seized during the search of his apartment, Agent Warren testified that Thompson
initially was reluctant to consent to the search. Agent Warren told Thompson that
the authorities did not have any evidence that she was involved in Boulette’s drug-
related activities, but they wanted to search the apartment to remove any guns or
drugs that may be present. Thompson said that she did not believe that there were
any guns in the apartment and called her attorney in Mississippi. After speaking to
him for approximately ten minutes, Thompson gave the telephone to Agent
Warren, who explained the situation to Thompson’s attorney. After Thompson
again spoke to her attorney for about three minutes, she told Agent Warren, “you
can go ahead and search.” R2 at 61.
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Agent Warren further testified that, notwithstanding her verbal consent to
search the apartment, Thompson declined to sign a consent form because she did
not want Boulette to know she had given consent. After Thompson again verbally
agreed to the search, Agent Warren noted Thompson’s verbal consent on the
consent form and signed it, with Agent Thistle witnessing the signature.
At the suppression hearing, Thompson denied ever giving verbal consent to
the search. She stated that she told the agents that she did not feel comfortable
giving consent to the search because her name was not on the lease; she did agree
however, that she consented to a subsequent search of a storage unit in her name.
Thompson also testified that she called her attorney after telling the agents that she
did not feel comfortable. When asked by the district court why she called her
attorney, Thompson replied that the agents were very persistent and she felt as if
they were “backing [her] into a corner.” R2 at 84. When shown the consent form,
Thompson stated that she did not recognize it, and denied telling Agent Warren
that she did not want to sign the form for fear that Boulette would learn of her
consent. On rebuttal, Agent Warren denied doing anything to make Thompson feel
uncomfortable or backed into a corner, and that in fact, the two had discussed
Thompson’s ill father, whom she and Boulette were planning to visit in Texas.
The court orally overruled Boulette’s motion to suppress, finding that
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Thompson had common authority to consent to the search of the apartment. The
court also found Agent Warren’s testimony credible and Thompson’s testimony
not credible, to the extent that it conflicted with Agent Warren’s version of the
facts. In doing so, the court relied on Thompson’s answers and body language, the
specificity of Agent Warren’s responses, and that Thompson called her attorney
and allowed Agent Warren to talk to him. The court concluded that Thompson
indeed gave Agent Warren consent after speaking to her attorney.
II. STANDARD OF REVIEW
“Review of a district court’s denial of a motion to suppress is a mixed
question of law and fact.” United States v. Delancy, 502 F.3d 1297, 1304 (11th
Cir. 2007). Accordingly, we accept the district court’s factual findings as true
unless clearly erroneous, construing the evidence in the light most favorable to the
prevailing party below, and we review the district court’s interpretation and
application of the law de novo. Id.
III. DISCUSSION
Boulette maintains that Thompson did not voluntarily consent to the search,
and therefore, the search of the apartment was illegal, and the evidence derived
therefrom should have been suppressed.
Although the Fourth Amendment shields one’s home from unreasonable
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searches and seizures by law enforcement officers, “because the ultimate
touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement
is subject to certain exceptions.” Brigham City, Utah v. Stuart, — U.S. — , 126 S.
Ct. 1943, 1947, 164 L. Ed. 2d 650 (2006). One “specifically established and well-
delineated” exception is a warrantless search made pursuant to consent. Katz v.
United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967).
Specifically, a warrantless search does not violate the Fourth Amendment where
there voluntary consent is given by a person with authority. Illinois v. Rodriguez,
497 U.S. 177, 181, 110 S. Ct. 2793, 2797, 111 L. Ed. 2d 148 (1990).
Consent to a search is voluntary “if it is the product of an “essentially free
and unconstrained choice.’” United States v. Purcell, 236 F.3d 1274, 1281 (11th
Cir. 2001) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041,
2047, 36 L. Ed. 2d 854 (1973)). The government bears the burden of proving the
existence of valid consent—that the consent was given voluntarily and not in
acquiescence to a claim of lawful authority. United States v. Blake, 888 F.2d 795,
798 (11th Cir. 1989).
Boulette argues that the testimony taken at the suppression hearing clearly
showed that Thompson gave neither written nor verbal consent to search the
apartment, and that Thompson’s testimony was credible because she gave specific
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information regarding her reaction to the presence of agents at her residence late at
night.
We have recognized that consent “usually turns on credibility choices
resulting from conflicting testimony.” United States v. Gonzalez, 71 F.3d 819, 828
(11th Cir. 1996) (internal quotations marks omitted). Credibility determinations
are within the province of the fact finder “because the fact finder personally
observes the testimony and is thus in a better position than a reviewing court to
assess the credibility of witnesses.” United States v.Ramirez-Chilel, 289 F.3d
744, 749 (11th Cir. 2002). In our review, “‘[w]e must accept the evidence unless it
is contrary to the laws of nature, or is so inconsistent or improbable on its face that
no reasonable factfinder could accept it.’” Id. (alteration in original) (quoting
United States v. Eddy, 8 F.3d 577, 580 (7th Cir. 1993)).
We have instructed district courts to conduct a proper credibility
determination, which includes an examination of internal consistencies of a
witness’s testimony, as well as her candor or demeanor on the stand. Id.
Accordingly, in evaluating the factual versions of events between a law
enforcement officer and a witness, we should defer to a lower court’s
determinations “unless [its] understanding of the facts appears to be unbelievable.”
Id. (internal quotations marks omitted).
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In denying Boulette’s motion to suppress, the district court determined, after
observing the body language and the specificity of the responses from both
witnesses, that Thompson’s testimony was not credible to the extent it conflicted
with Agent Warren’s testimony. We find that the district court examined the
witnesses’ testimony and made a proper credibility determination. Therefore, we
conclude that the court did not clearly err in finding that Thompson consented to
the agents’ search of the apartment.
Boulette also argues that the agents’ entry into the residence was prompted
by a “show of authority” that negated any possible consent to search because it was
late at night, and Thompson, who was alone in the apartment, was in a “vulnerable
subjective state.” Whether an individual voluntarily consented to a warrantless
search is a question of fact that must be determined by the totality of the
circumstances. Purcell, 236 F.3d at 1281. We have identified the following
factors as relevant in determining whether consent was voluntarily given: (1)
whether the individual felt free to leave; (2) the exercise of coercive police
procedures; (3) the extent of the individual’s cooperation with the police; (4) the
individual’s awareness of her right to refuse consent, and whether the individual, in
fact, could refuse consent; (5) the individual’s education and intelligence; and (6)
the individual’s belief that no incriminating evidence will be found. Ramirez-
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Chilel, 289 F.3d at 752.
Additionally, in evaluating the surrounding circumstances, we take account
of “‘subtly coercive police questions, as well as the possibly vulnerable subjective
state of the person who consents.’” United States v. Garcia, 890 F.2d 355, 360
(11th Cir. 1989) (quoting Bustamonte, 412 U.S. at 229, 93 S. Ct. at 2049). We also
have held that “[a] suspect does not consent to a search of his residence when his
consent to the entry into his residence is prompted by a show of official authority.”
Ramirez-Chilel, 289 F.3d at 751.
Application of these factors support the district court’s finding that
Thompson’s consent was voluntarily given. Thompson spoke with Agent Warren
prior to his entry, and she permitted him to come inside to discuss the situation
further. After Agent Warren explained the circumstances of Boulette’s arrest to
Thompson, she called her attorney for advice and spoke with him for about ten
minutes. Moreover, she allowed Agent Warren to speak with her attorney prior to
giving consent. The testimony reflects that Thompson was aware of her right to
refuse consent, and only did so after careful consideration and upon the advice of
her attorney. Although we have deemed nighttime searches more intrusive than
daytime searches and have found that “the assemblage of law enforcement officers
at one’s door in the middle of the night has a tendency to be more coercive than
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during the day,” Ramirez-Chilel, 289 F.3d at 751, n.8, a search conducted late at
night does not, standing alone, negate the voluntariness of one’s consent to search
where the totality of the circumstances demonstrates that consent was voluntary.
See id.
IV. CONCLUSION
Because the district court did not clearly err in finding that Thompson
consented to the search of their apartment, and that her consent was voluntary, the
district court properly denied Boulette’s motion to suppress. Accordingly, we
affirm his convictions.
AFFIRMED.
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