                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1227n.06

                                           No. 11-6235                                  FILED
                                                                                     Nov 28, 2012
                            UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA                                 )
                                                         )
       Plaintiff-Appellee                                )        ON APPEAL FROM THE
                                                         )        UNITED STATES DISTRICT
               v.                                        )        COURT FOR THE MIDDLE
                                                         )        DISTRICT OF TENNESSEE
VERNON EARL OLDHAM                                       )
                                                         )
       Defendant-Appellant                               )
                                                         )



BEFORE: KEITH, MARTIN, and ROGERS, Circuit Judges.

       ROGERS, Circuit Judge. Vernon Earl Oldham pled guilty to being a felon in possession of

a firearm. He now appeals his conviction, challenging the district court’s denial of his motion to

suppress the weapon. The district court credited the testimony of two police officers that a search

of Oldham was consensual and that, even if were not, the officers had reasonable suspicion to stop,

and then to search Oldham. Nothing in the record casts significant doubt on the veracity of the

officers' testimony. The district court properly denied Oldham’s motion to suppress.

       On February 23, 2011, at approximately 5:00p.m., Metro Nashville Police Department

Officers Conrad Straub and Matthew Boguskie were investigating a vehicle accident when an elderly

man got their attention. The man informed the officers that there was an individual at a nearby

intersection flagging down cars and asking for money. The man stated that the individual “didn’t

look right” and had scared the man to the point where he rolled through the stop sign. A few minutes
No. 11-6235
United States of America v. Vernon Earl Oldham


later, Officer Straub traveled to the intersection and saw Oldham approaching cars stopped at a four-

way stop sign and knocking on their windows. Officer Straub parked his car at the intersection,

exited his vehicle, and approached Oldham. Officer Straub asked Oldham to walk across the street

to talk and Oldham complied. Officer Boguskie, arriving soon after, witnessed Officer Straub and

Oldham crossing the street together. The officers noticed that Oldham reached for his pants pockets

multiple times, and they repeatedly warned him not to do so. The officers asked for, and obtained,

Oldham’s consent to pat him down. In the course of the pat-down, Officer Boguskie discovered a

sawed-off 12-gauge Savage Arms shotgun concealed in Oldham’s waistband. At that point, the

officers took Oldham into custody. A criminal history check later revealed that Oldham had

previously been convicted of several felonies.

          Oldham was charged with being a felon in possession of a firearm in violation of 18 U.S.C.

§§ 922(g)(1), 924. Oldham moved to suppress all evidence found as a result of the encounter,

arguing that the officers found the evidence as a result of an illegal seizure and subsequent search.

Oldham claims that Officer Straub grabbed Oldham’s arm, forced it behind his back, and marched

him across the street to the officer’s patrol car. Oldham denies putting his hands in his pockets,

claiming that he was merely trying to hold up his baggy pants, and denies giving the officers

permission to pat him down. The district court held an evidentiary hearing on the motion, during

which Officers Straub and Boguskie testified for the Government and Oldham testified on his own

behalf.




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No. 11-6235
United States of America v. Vernon Earl Oldham


         The district court denied the motion to suppress. The district court credited the testimony

of the officers at the hearing and their police reports, finding that Oldham willingly crossed the street

with Officer Straub and consented to the pat-down search. The district court also found that the

officers had reasonable suspicion to detain and pat down Oldham. Oldham then entered a

conditional guilty plea, reserving the right to appeal the ruling on the motion to suppress. The

district court sentenced Oldham to 60 months in prison, three months of supervised release, and a

$100 assessment. Oldham now appeals the denial of his motion to suppress.

         The district court did not commit clear error in crediting the officers’ testimony that the

encounter and pat-down search were consensual. Nothing in the officers’ reports, in their testimony,

or in any evidence contradicts their version of the events.

         There ‘can virtually never be clear error’ where the ‘trial judge's finding is based on
         [her] decision to credit the testimony of one of two or more witnesses, each of whom
         has told a coherent and facially plausible story that is not contradicted by extrinsic
         evidence,’ and where that finding is ‘not internally inconsistent.’

Brooks v. Tennessee, 626 F.3d 878, 897 (6th Cir. 2010) (quoting Anderson v. City of Bessemer City,

N.C., 470 U.S. 564, 575 (1985)). The district judge credited the officers’ testimony, which is

uncontradicted by anything but Oldham’s testimony. That determination cannot constitute clear

error.

         Oldham notes several minor inconsistencies in Officer Straub’s testimony. However, they

concerned insignificant issues, and the district court was entitled to disregard them. Whether Officer

Straub questioned Oldham before they crossed the street or after has no bearing on whether Oldham

consented to crossing the street. Likewise, while the question of whether Oldham was blocking

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United States of America v. Vernon Earl Oldham


traffic may be relevant to whether the officers had reasonable suspicion, it is not relevant to the

consent issue. Furthermore, Officer Straub’s testimony on cross-examination that Oldham first

reached for his pockets before rather than after crossing the street is neither inconsistent with the rest

of his testimony, which does not specify the first time Oldham put his hands in his pockets, nor

relevant to the consent question. Finally, Officer Boguskie’s testimony confirms Officer Straub’s

testimony and Officer Boguskie’s testimony is unchallenged. There is not enough in the record to

cast serious doubt on either officer’s testimony.

        Accepting, as the district court properly did, the officers’ version of the facts, the officers did

not violate the Fourth Amendment. Oldham consented to crossing the street with the officers and

consented to the pat-down search. Voluntary consent is an exception to the Fourth Amendment’s

search warrant requirement. See Clemente v. Vaslo, 679 F.3d 482, 489 (6th Cir. 2012). Whether

consent was given voluntarily is determined by examining the totality of the circumstances, including

the consenting individual’s age, intelligence, and education; whether the individual understands his

constitutional rights; the length and nature of any detention; and whether the police used any

coercive or punishing conduct. U.S. v. Collins, 683 F.3d 697, 702 (6th Cir. 2012). In this case, the

officers did not coerce or threaten Oldham. They did not use physical force or make any show of

authority. Although Oldham has only an eighth-grade education, he is 27 years old and has had

several previous interactions with law enforcement. After accepting the officers’ testimony and

examining the totality of the circumstances, the district court could properly find that Oldham

voluntarily consented to the search.


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       For the foregoing reasons, we affirm the judgment of the district court.




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