                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 12-4138


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WILLIE MITCHELL,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:10-cr-00562-DCN-1)


Submitted:   November 1, 2012             Decided:   March 15, 2013


Before GREGORY, SHEDD, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Francis J. Cornely, CORNELY LAW FIRM, Charleston, South
Carolina, for Appellant. Robert Nicholas Bianchi, OFFICE OF THE
UNITED   STATES  ATTORNEY,  Charleston,  South   Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Willie    Mitchell        was    charged      in      a     three-count

indictment with:         (1) being a felon in possession of a firearm,

18    U.S.C.    §    922(g)(1)   (2006)    (Count    1);    (2)    possession     with

intent to distribute crack cocaine, 21 U.S.C. § 841(a) (2006)

(Count 2); and (3) possession of a firearm in furtherance of a

drug trafficking offense, 18 U.S.C. § 924(c)(1)(A) (2006) (Count

3).    Mitchell filed motions to suppress both his statements and

evidence seized at the time of his arrest.                    Following separate

hearings,      the    district     court   denied    both    motions.         Mitchell

subsequently entered into a plea agreement with the Government

in which he agreed to plead guilty to Counts 1 and 2.                         Mitchell

also agreed that the plea agreement constituted an Information

for purposes of 21 U.S.C. § 851 (2006), thereby subjecting him

to    increased       punishment     based     on   three    prior       felony   drug

offenses       identified   in     the   agreement.          The     district     court

sentenced       Mitchell    to   a   total     of   188     months       imprisonment.

Mitchell noted a timely appeal.

               Mitchell’s attorney has filed a brief in accordance

with Anders v. California, 386 U.S. 738 (1967), in which he

asserts that there are no meritorious issues for appeal, but

questions the district court’s rulings on Mitchell’s suppression

motions.        Mitchell has filed a supplemental pro se brief in

which he also challenges the denial of his suppression motions.

                                           2
Although the plea agreement makes no mention of the suppression

motions, we find that Mitchell arguably preserved those issues

for appeal.

            The facts underlying Mitchell’s arrest and indictment

are   as   follows.          In       December         2009,   North      Charleston       Police

narcotics detectives received a tip that illegal drug activity

was taking place at 2321 Kent Avenue; based on the tip, the

detectives    conducted           a    search      of    the     trash     can    at   the    curb

outside    the     residence           and    found       several        items    that     tested

positive    for    cocaine            and    marijuana.            A    search    warrant      was

obtained based on that evidence.

            When     the       warrant            was    executed,         detectives        found

Mitchell,     Kenyatta        Thompson,            and    five     juveniles       inside     the

residence.         Detectives           also       recovered       a     stolen    handgun,     a

quantity    of    both       cocaine         and   crack,      a       digital    scale,     pyrex

dishes containing cocaine residue, a microwave oven containing

cocaine    residue,      a    large         sum    of    cash,     and    documents      bearing

Mitchell’s name.             After being advised of his Miranda rights,

Mitchell signed a statement admitting ownership of the drugs and

guns.

            In his motion to suppress the evidence seized during

the search, Mitchell claimed that the search warrant was not

based on sufficient probable cause because the trash can was

accessible to passersby, and that the officers entered his home

                                                   3
without a warrant in hand (the warrant arrived approximately one

hour after the detectives began the search).

              At the hearing on Mitchell’s motion, Detective Jamel

Foster testified that the trash can was collected from outside

the fence surrounding the yard at 2321 Kent Avenue.                                Foster

stated that there was a garage in the back yard and that there

was a separate trash can alongside that building, inside the

fence.     That trash can was not searched.                 Prior to obtaining the

warrant, Foster checked the property tax records for 2321 Kent

Avenue   to    confirm     that    the   garage      did    not   have    a   different

address.        Along     with    the    items       that     tested     positive       for

marijuana and cocaine, Kenyatta Thompson’s mail was found in the

trash can that was searched.

              Mitchell     argued   that       the    trash    can     pulled      by   the

detectives was located in a public place and was accessible to

people   at    a    nearby   bus    stop,      among       others.       According       to

Mitchell, that information should have been disclosed in the

application for a search warrant.                    However, we find that such

information        was   unnecessary.          Mitchell’s      reliance       on   United

States v. Tate, 524 F.3d 449 (4th Cir. 2008), is misplaced.                              In

Tate, the evidence suggested that the officer applying for the

search warrant intentionally omitted facts about the location of

the trash because the trash was not actually abandoned (i.e.,

placed at the curb, as in the instant case) but was located

                                           4
within the fenced-in backyard, near the home.                      This court found

that       Tate    made    a   “substantial        preliminary   showing    that   [the

officer] knowingly and intentionally, or with reckless disregard

for the truth, omitted a material statement in the affidavit he

offered in support of the warrant to search Tate’s residence.”

Id. at 457.             This court vacated Tate’s conviction and remanded

for a Franks * hearing.                By contrast,        Mitchell failed to show

that       the     officers       intentionally       or   recklessly      withheld   a

material fact — the proximity of a bus stop — when applying for

the warrant.

                  The district court also properly found that Mitchell’s

challenge to the execution of the warrant was without merit.

The Fourth Amendment does not require that a warrant be served

on the owner of the property prior to the search.                          See Groh v.

Ramirez, 540 U.S. 551, 562 n.5 (2004)                       (“[N]either the Fourth

Amendment         nor     [Fed.   R.   Crim.   P.    41]   requires   the    executing

officer to serve the warrant on the owner before commencing the

search”).



       *
       Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (holding
that, where “a defendant makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in
the warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth Amendment
requires that a hearing be held at the defendant’s request”).



                                               5
            Mitchell     also       filed      a     motion     to     suppress         his

statements made at the time of his arrest on the ground that the

statements were not made freely and voluntarily.                        Specifically,

Mitchell claimed that, at the time of the search, the officers

told him and Thompson (his girlfriend) that if he did not claim

responsibility for the drugs and gun, the Department of Social

Services    would     take    Thompson’s       children       from     her,   possibly

permanently.

            A    statement        will    be       deemed     involuntary     if        the

accused’s “will has been overborne or his capacity for self-

determination critically impaired.”                   United States v. Pelton,

835 F.2d 1067, 1071 (4th Cir. 1987) (internal quotation marks

and   citation      omitted).           “[C]oercive     police        activity     is    a

necessary    predicate       to   the    finding     that   a   confession       is     not

‘voluntary’ within the meaning of the Due Process Clause of the

Fourteenth Amendment.”            Colorado v. Connelly, 479 U.S. 157, 167

(1986).     Whether a confession is voluntary must be determined by

examining “the totality of all the surrounding circumstances —

both the characteristics of the accused and the details of the

interrogation.”        Schneckloth v. Bustamonte, 412 U.S. 218, 226

(1973).     Relevant considerations include the age, education, and

intelligence     of    the    accused,      the      length     and    conditions       of

detention, and the duration and frequency of questioning.                        Id.



                                           6
            Mitchell      was    thirty-five      years       old,    a    high      school

graduate,   and     had    a    lengthy    criminal      history       (his     criminal

history category, as determined in the presentence report, was

VI).      Although the officers present denied making any threats

to Mitchell or Thompson, even if they had, “[t]he mere existence

of threats . . . implied promises, improper influence, or other

coercive police activity . . . does not automatically render a

confession involuntary. . . . Truthful statements about [the

Defendant’s]      predicament       are    not   the    type    of     coercion       that

threatens to render a statement involuntary.”                        United States v.

Braxton, 112 F.3d 777, 780, 782 (4th Cir. 1997).                          Indeed, given

the    presence     of     drugs,      firearms,       and     evidence         of    drug

manufacturing in the home, Thompson could have lost custody of

her children had the activity been attributed to her.

            In light of the above, we conclude that the district

court did not err in denying Mitchell’s suppression motions.                            In

accordance with Anders, we have reviewed the entire record in

this case and have found no meritorious issues for appeal.                              We

therefore   affirm       the    district    court’s      judgment.          This     court

requires that counsel inform Mitchell, in writing, of his right

to petition the Supreme Court of the United States for further

review.     If Mitchell requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

counsel   may     move    in    this   court     at    that    time       for   leave   to

                                           7
withdraw from representation.       Counsel’s motion must state that

a copy thereof was served on Mitchell.           Finally, we dispense

with oral argument because the facts and legal contentions are

adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                                AFFIRMED




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