                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-2313
                                     ___________

United States of America,                 *
                                          *
                    Appellee,             * Appeal from the United States
                                          * District Court for the District
      v.                                  * of Nebraska.
                                          *
Earl Mitchell,                            *      [UNPUBLISHED]
                                          *
                    Appellant.            *
                                     ___________

                                Submitted: December 14, 1999

                                    Filed: December 23, 1999
                                     ___________

Before WOLLMAN, Chief Judge, FAGG, Circuit Judge, and BATTEY,* District
      Judge.
                            ___________

PER CURIAM.

       When Earl Mitchell invited police officers into his home during the investigation
of a domestic dispute, the officers noticed a shotgun in plain view. After leaving
Mitchell's house, the officers confirmed their suspicion that Mitchell was a convicted
felon and verified that Mitchell purchased the shotgun. Later that day, as Mitchell
drove up to his house, the officers stopped him with their weapons drawn, ordered

      *
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota, sitting by designation.
Mitchell out of the car and onto the ground, handcuffed him, and arrested him on the
charge of being a felon in possession of a firearm. When the officers asked Mitchell
for permission to enter his home and get the gun, Mitchell said, "[Y]ou might as well."
The officers then removed the house key from Mitchell's pocket and retrieved the
shotgun.

      Mitchell appeals the district court's denial of his motion to suppress the shotgun,
arguing the Government did not establish by a preponderance of the evidence that
Mitchell voluntarily consented to the search of his residence and the retrieval of his
gun. We disagree. In concluding Mitchell's consent was voluntary, the district court
considered the totality of the circumstances, stating:

      [T]he evidence reflects that police noticed a smell of alcohol on
      [Mitchell], he was not given Miranda warnings prior to his consent, the
      arrest was intimidating, and he was under arrest when "consent" was
      given. However, [Mitchell] is not a minor, and appears to have general
      intelligence and education as demonstrated by his correspondences with
      the Court. [Mitchell] had been arrested and convicted previously, thus
      indicating he was not a novice in criminal matters. The record does not
      indicate [Mitchell] was detained for a long period of time nor made
      promises by the police. In addition, his "consent" was given in a public
      place and witnesses did not observe him protest the search and seizure.
      This Court finds that the totality of the circumstances indicate that consent
      was voluntarily given by [Mitchell] . . . .

Having carefully reviewed the record and the parties' briefs, we conclude the district
court did not commit clear error in finding Mitchell's consent was voluntary. See
Schneckloth v. Bustamonte, 412 U.S. 218, 232-34 (1973) (voluntariness of consent
determined by weighing totality of circumstances); United States v. Czeck, 105 F.3d
1235, 1239 (8th Cir. 1997) (same). We thus affirm the denial of Mitchell's motion to
suppress.



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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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