                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 08 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    15-30259

              Plaintiff-Appellee,                D.C. No.
                                                 1:13-cr-00098-SPW-1
 v.

MACK EDWARD HARRIS,                              MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Susan P. Watters, District Judge, Presiding

                            Submitted March 6, 2017**
                               Seattle, Washington

Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.

      Mack Edward Harris appeals his conviction on firearms charges, challenging

the district court’s denial of his motion to suppress evidence obtained during a




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
search of his residence. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      The district court properly concluded that probable cause and exigent

circumstances justified the police officers’ warrantless entry into the apartment.

The officers heard Harris and Leanna Devad fighting; witnesses reported hearing

choking sounds and hearing Devad say that Harris had a firearm in the apartment.

Under these circumstances, (1) there was “a fair probability or substantial chance”

that a domestic violence incident had occurred, and (2) a reasonable person would

have believed that entry was necessary to prevent physical harm to Devad. See

United States v. Brooks, 367 F.3d 1128, 1134–35 (9th Cir. 2004).

      The district court did not clearly err in concluding that Devad consented to

the search of the apartment. Sergeant Curry’s testimony that Devad consented was

supported by the recording of Devad saying “yes, yes” around the time that

Sergeant Curry says he asked for her consent. Moreover, Devad’s credibility was

undermined by inconsistencies between her testimony and her previous statements.

      Finally, the district court did not clearly err in concluding that Devad

voluntarily consented to the search. Devad was treated like a victim rather than a

perpetrator, so there was no need to give her Miranda warnings. Nor was she

threatened by being told that a search warrant could be obtained if she did not


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consent to the search. Although the officers’ guns were drawn initially, they were

pointed at Harris, not at Devad. The totality of the circumstances supported a

finding of voluntariness. See United States v. Patayan Soriano, 361 F.3d 494, 502

(9th Cir. 2004).

      AFFIRMED.




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