                                                                     [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                            No. 11-14666                JUNE 19, 2012
                                        Non-Argument Calendar            JOHN LEY
                                      ________________________            CLERK


                                D.C. Docket No. 1:10-cr-20808-AJ-1


UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                               versus

DOUGLAS PUPO-REYNALDO,
a.k.a. Douglas Pupo,
a.k.a. Douglas Perez,
a.k.a. Reynaldo Pupo,
a.k.a. Juan Perez,

llllllllllllllllllllllllllllllllllllllll                             Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________
                                         (June 19, 2012)

Before HULL, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
       Douglas Pupo-Reynaldo appeals his conviction for possession of a firearm

by a convicted felon on the ground that the district court erred by denying his

motion to suppress the evidence seized from his home. After a thorough review of

the record, we affirm.

                                                I.

       Pupo-Reynaldo was indicted for possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g). The indictment identified four different

firearms and five different types of ammunition found in Pupo-Reynaldo’s

possession. Prior to trial, he moved to suppress the firearms and ammunition

seized from his house on the grounds that police entered his home without a

warrant, with no exigent circumstances, and without the voluntary consent of any

of the residents. He explained that the consent form signed by his common-law

wife, Iraime Baguet, was signed after the search and was not voluntarily given.1

       Several detectives testified at the suppression hearing about how an

investigation into a home-invasion scheme lead them to Pupo-Reynaldo.

Detective Joe Mendez testified that he was assigned as a task force officer with the

       1
           Pupo-Reynaldo also challenged the admission of the observations by officers stationed
on the roof during the search, arguing that the officers had trespassed onto his roof and thus had
no lawful vantage point to witness him allegedly throwing the firearms out a window. The
district court granted Pupo-Reynaldo’s motion to suppress this evidence, and the government
does not appeal. Therefore, we do not discuss this issue here.


                                                 2
DEA, and had worked on the home-invasion investigation, but was not directly

involved with Pupo-Reynaldo’s case. Mendez had received information about a

planned armed robbery from a source, and he passed the information on to the

police. He had no recollection of Pupo-Reynaldo’s case. During Mendez’s

testimony, defense counsel attempted to impeach Mendez with potentially

conflicting statements: Although he had stated earlier that he received information

about the home invasion from a confidential source, Mendez later denied that he

had obtained information from a registered confidential informant. He also denied

receiving an extra day of paid vacation for his participation in the home invasion

case, despite records showing that he was credited one vacation day during the

month of the investigation.

      Detective Yaniel Hernandez, an investigator with the Miami-Dade Police

Department’s robbery bureau, who was directly involved in Pupo-Reynaldo’s

case, testified that his unit was investigating the alleged home-invasion robbery in

October 2010. On the night of October 25, after officers exhausted all

investigative techniques, they decided to visit Pupo-Reynaldo’s house to conduct a

“knock and talk” consensual encounter. The plan was to make contact and either

dispel or confirm the allegation of a home invasion robbery.

      According to Hernandez, at approximately 11:00 p.m., Hernandez and


                                         3
Detective Scott Ogden knocked on the front door of Pupo-Reynaldo’s house.

They were dressed in tactical vests with “police” written in big letters on the front

and back. Iraime Baguet quickly opened the door and Hernandez, speaking to her

in Spanish, identified himself as a Miami-Dade police officer and asked to speak

to Pupo-Reynaldo. Baguet was very cooperative and immediately invited the

detectives into the house. She called for Pupo-Reynaldo, who appeared at the top

of the stairs naked. Hernandez identified himself and stated that he wished to

speak with him. Pupo-Reynaldo agreed, but asked to get dressed first. Seconds

later, Hernandez heard a metal cling and then heard over the radio, “[h]e’s coming

out of the house with guns.” Hernandez and Ogden went up the stairs and cleared

the upstairs rooms to make sure no one was hiding there. In one room, they found

a baby sleeping in a bed. Two other officers located Pupo-Reynaldo and took him

into custody.

      Hernandez went downstairs to speak to Baguet, who had become very

nervous and was crying. She expressed concern for her children in the house.

Hernandez explained to her that Pupo-Reynaldo had thrown guns out of the

second story window. Hernandez brought Baguet upstairs to see the baby

sleeping, after which she calmed down. Hernandez then brought Baguet back

downstairs and asked for consent to search the house. Baguet agreed, and


                                          4
Hernandez reviewed the written consent form with her in Spanish. Hernandez

confirmed that no one had their guns pointed at Baguet, no one threatened to do

anything with her children, and no one promised Baguet anything in exchange for

her consent. Once Baguet signed the form, police searched the house and found

bear spray, multiple masks, and gloves, along with the firearms and ammunition.

      Hernandez later obtained a written statement from Baguet in which she

admitted that she gave police permission to enter and search the house. Baguet

further wrote that she had no idea there were guns in her house and that Pupo-

Reynaldo had only been living with her for one month. She also explained how

she met him and stated that Pupo-Reynaldo’s ex-girlfriend named DixMarie had

brought the boxes of ammunition when she delivered Pupo-Reynaldo’s

belongings.

      Miami-Dade Police Detective Scott Ogden testified that he was at the door

with Hernandez and did not remember Hernandez saying anything when he

knocked. Ogden confirmed that Baguet opened the door and let the officers enter.

After they spoke to Pupo-Reynaldo and allowed him to get dressed, Ogden heard a

metallic clanging sound and then heard over the radio that Pupo-Reynaldo was

going out a window. He then heard another communication that Pupo-Reynaldo

had thrown guns out the window.


                                        5
       The remaining officers involved in the October 25 encounter provided

testimonies that were largely consistent with those given by Hernandez and

Ogden.2

       Iraime Baguet provided conflicting testimony. She stated that on the night

of October 25, 2010, she and Pupo-Reynaldo went to bed before 11:00 p.m. At

some point, Baguet’s teenage son came into the room and told her that the police

were on the neighbor’s roof. Around 11:40 p.m., Baguet heard a hard knock on

the door and someone say, “open the door, police department.” By the time she

got down the stairs and into the living room, four or five police officers were

inside the house because her son had opened the door. Two of the officers spoke

Spanish and asked her if there were any weapons or drugs in the house.

       Baguet testified that the officers then called to Pupo-Reynaldo, who was

upstairs. Pupo-Reynaldo was wearing only his underwear and he asked to get

dressed before talking to police. Two or three officers ran upstairs and a little

while later, they came downstairs with Pupo-Reynaldo. Baguet asked about her

children and the police told her that they were fine. The police asked her to sign a

consent form to search the house before she could see her children. She signed the


       2
           There was conflicting testimony about the number of officers in the house and who was
involved in Pupo-Reynaldo’s arrest. These inconsistencies are not relevant to the validity of the
initial entry and the consent to search.

                                                6
form because the police were already inside the house and she did not have

anything to hide. Once she signed the form, she was allowed to see her children.

      According to Baguet, after she signed the consent form and came

downstairs, she was handcuffed. When police uncuffed her later, they asked her to

sign a written statement. The police told her they were going to give her another

chance and threatened to take her children away from her if she did not cooperate.

The police also called her brother to take the children. One of the officers told her

to write that the police had come to the house, she had opened the door, and she

had seen Pupo-Reynaldo throw the weapons out the window. She testified that

she complied because she was afraid for her children, but said the statement was

false and she did not see Pupo-Reynaldo with any guns. Baguet admitted that it

was her signature on the consent form and that the statement was in her

handwriting. But she explained that she lied for her children and would do it

again if she needed to, although she would not lie for Pupo-Reynaldo. And

although she visited him in jail regularly and spoke to him by phone everyday,

Pupo-Reynaldo did not ask her to lie for him.

      The magistrate judge recommended granting in part and denying in part the

motion to suppress. The magistrate judge found that Baguet’s testimony was not

credible because she had a motive to provide testimony favorable to the defense


                                          7
and because she stated that she would lie for her children. The magistrate judge

also found that, based on Hernandez’s and Ogden’s credible testimonies, the initial

entry onto Pupo-Reynaldo’s property was a permissible “knock and talk.” The

magistrate judge further found that the search of the house was permissible based

on Baguet’s voluntary consent. The magistrate judge declined to address

Mendez’s credibility, finding it was not relevant to the legality of the entry or the

voluntariness of the consent.

      The district court adopted the recommendation over all objections.

Following a three-day trial, the jury convicted Pupo-Reynaldo, and the district

court sentenced him to 78 months’ imprisonment. This is Pupo-Reynaldo’s

appeal.

                                          II.

      “A district court’s ruling on a motion to suppress presents mixed questions

of law and fact.” United States v. Ramirez-Chilel, 289 F.3d 744, 748-49 (11th Cir.

2002). We review “findings of fact for clear error and the application of the law to

those facts de novo.” United States v. Martinelli, 454 F.3d 1300, 1306 (11th Cir.

2006). In reviewing the district court’s ruling, we must construe the facts in the

light most favorable to the prevailing party below. United States v. Smith, 459

F.3d 1276, 1290 (11th Cir. 2006). Whether an individual’s consent was voluntary


                                          8
is a factual finding that we review only for clear error. United States v. Zapata,

180 F.3d 1237, 1240-41 (11th Cir. 1999).

      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.” Ramirez-

Chilel, 289 F.3d at 749. Furthermore, if testimony presented by opposing

witnesses at a hearing is in “direct conflict,” the district court’s decision to lend

credence to one party’s version should be “conclusive” and warrants reversal only

if the court credits “exceedingly improbable” testimony. Id. (internal quotation

marks omitted). Likewise, we “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. (internal quotation marks omitted).

                                          III.

      The Fourth Amendment provides that: “The right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated . . .” U.S. Const. amend. IV. The Fourth

Amendment is not implicated by entry onto private land for legitimate police

purposes unconnected with a search of the premises. United States v. Taylor, 458

F.3d 1201, 1204 (11th Cir. 2006). “Absent express orders from the person in


                                           9
possession, an officer may walk up the steps and knock on the door of any man’s

castle, with the honest intent of asking questions of the occupant thereof.” Id.

(internal quotation marks omitted). We refer to this principle as the “knock and

talk” exception to the Fourth Amendment’s warrant requirement. See, e.g., id. at

1205.

        Additionally, a warrant is not required when a search is made pursuant to

voluntary consent. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). Consent 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) (internal quotation

marks omitted). The government bears the burden of proving the existence of

valid consent that is given freely and voluntarily. United States v. Blake, 888 F.2d

795, 798 (11th Cir. 1989). Our review of a consent determination usually turns on

“credibility choices resulting from conflicting testimony.” United States v.

Garcia, 890 F.2d 355, 359 (11th Cir. 1989).

        Pupo-Reynaldo argues that the magistrate judge failed to make proper

credibility determinations and disregarded inconsistencies in the officers’

testimony. He contends that the police intended to search his home when they

conducted the “knock and talk,” and that Baguet’s consent was not voluntary.

        After reviewing the record, we disagree. First, nothing in the record


                                          10
demonstrates that the magistrate judge made improper credibility determinations.

The magistrate judge did not credit the testimony of the law enforcement officers

simply because they were officers. Nor did he find Baguet’s testimony lacking in

credibility solely because of her relationship with Pupo-Reynaldo. Rather, the

magistrate judge explained that Baguet’s testimony was not credible because she

had demonstrated a willingness to lie, and he noted that her written statement

contained facts, such as the name of Pupo-Reynaldo’s ex-girlfriend, that law

enforcement would not have known. And the magistrate judge noted that Baguet’s

testimony was uncorroborated even though her teenage son, who was present

during the search, and her brother, who police allegedly called during the search,

could have testified.

      Additionally, there was no error in the magistrate judge’s decision not to

make a credibility determination about Mendez’s testimony. Mendez’s testimony

about how he learned of the alleged home invasion was not relevant to whether the

officers gained lawful entry into Pupo-Reynaldo’s house and whether Baguet

voluntarily consented to the search.

       Second, nothing in the record shows that the magistrate judge erred by

concluding that the officers intended to pursue a valid “knock and talk.” The

officers directly involved in making contact with Pupo-Reynaldo each testified


                                         11
that they did so to prevent the anticipated home invasion from occurring.

      Third, the magistrate judge properly determined that the officers’ entry into

the house was lawful. The officers’ testimony established that Hernandez knocked

on the door and Baguet opened it and invited the officers inside. There is nothing

in the record that demonstrates that Hernandez’s testimony was “exceedingly

improbable.” See Ramirez-Chilel, 289 F.3d at 749.

      Lastly, the magistrate judge did not clearly err in determining that Baguet

voluntarily consented to the search. In his role as fact-finder, the magistrate judge

found Baguet’s testimony not credible. See id. Although there were some

inconsistencies between the officers’ testimony with regard to the events relating

to Pupo-Reynaldo’s arrest, none of those inconsistencies made Hernandez’s

testimony about obtaining the written consent “exceedingly improbable.” Id.

Additionally, Baguet testified that she signed the consent form because she did not

have anything to hide. Based on this testimony, the magistrate judge properly

concluded that Baguet gave voluntary consent to the search.

      For the foregoing reasons, we affirm the district court’s denial of the motion

to suppress.

      AFFIRMED.




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