                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                          FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                            ________________________ ELEVENTH CIRCUIT
                                                             SEPTEMBER 14, 2007
                                 No. 06-16595                 THOMAS K. KAHN
                             Non-Argument Calendar                CLERK
                           ________________________

                     D. C. Docket No. 04-00302-CR-WBH-1

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                     versus

VIRGIL BROWN,
a.k.a. Virgil A. Brown,

                                                       Defendant-Appellant.


                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________

                              (September 14, 2007)

Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Virgil Brown appeals his conviction for conspiracy to manufacture, deal in,
possess, and conceal counterfeit currency, in violation of 18 U.S.C. § 471; dealing

in counterfeit currency, in violation of 18 U.S.C. § 473; manufacturing counterfeit

currency, in violation of 18 U.S.C. § 471; possessing and concealing counterfeit

currency, in violation of 18 U.S.C. § 472; possession with intent to distribute

marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), and 851. On

appeal, Brown challenges the district court’s denial of his motion to suppress his

confession and certain evidence seized in the search of his residence. After review,

we affirm.

                                I. BACKGROUND

A.    Arrest

      Using a confidential informant, Secret Service agents arranged to purchase

counterfeit currency from Brown and his co-defendant, Steven Earl Thompson, in

a mall parking lot. Agents arrested Brown and Thompson. Brown was taken to

the mall’s security office in handcuffs, where he was asked some general

questions, but was not interrogated. At one point, Brown asked for a copy of the

federal sentencing guidelines. In response, Special Agent Scott Donovan used

profanity toward Brown and spoke in a loud, threatening tone.

      Brown had brought his baby with him to the mall. While Brown was held in

the mall security office, Special Agent Tammy McCravy took care of Brown’s



                                          2
baby. Agent McCravy asked Brown for the contact information for Mrs. Brown,

the baby’s mother, but Brown refused to provide it. Agent McCravy explained to

Brown that, if she could not reach Mrs. Brown to arrange to give her the baby,

Agent McCravy would have to call the Department of Family and Children

Services (“DFACS”), Georgia’s child protective services agency. Brown wanted

Agent McCravy to give the baby to Brown’s mother, but Agent McCravy

explained that she would release the baby only to the legal guardian. Brown

finally gave Agent McCravy Mrs. Brown’s telephone number. Agent McCravy

called Mrs. Brown and told her that agents were taking the baby to her residence

and that she needed to meet them at the house to take custody of the baby.

B.    Waiver of Miranda 1 Rights and Confession

      While Agent McCravy transported the baby to the Browns’ residence,

Special Agent Scott Gignilliat escorted Brown to the Secret Service office. On the

way, Agent Gignilliat told Brown that he had read Brown’s lips during the

surveillance and had seen Brown indicate that law enforcement was present. Agent

Gignilliat asked Brown why he went through with the deal. Brown responded that

he had seen agents following him throughout the day and that he wished he had

backed out of the deal. Agent Gignilliat told Brown that agents were attempting to



      1
          See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

                                                3
get a search warrant for Brown’s residence and asked Brown if there were any

firearms in his house. Brown assured Agent Gignilliat that there were no firearms.

      When Agent Gignilliat and Brown arrived at the Secret Service office

approximately 30 to 45 minutes later, another agent informed Agent Gignilliat that

Brown had not yet been mirandized. Up to this time, Agent Gignilliat believed that

another agent gave Brown his Miranda warnings at the mall. Agent Gignilliat

asked Brown if he had been read his Miranda rights, and Brown responded that he

had not. Agent Gignilliat then informed Brown that nothing Brown had said up to

that point could be used against him in court, but that his actions could be used

against him and could be used to help agents get a search warrant.

      Agent Gignilliat encouraged Brown to cooperate and read Brown his

Miranda rights. Agent Gignilliat also let Brown read the Miranda waiver form

several times. Brown debated to himself and discussed with the agents whether he

wanted to waive his Miranda rights. Ultimately, Brown signed the waiver of his

Miranda rights.

      During this discussion at the Secret Service office, Agent Gignilliat’s tone of

voice was non-threatening. No one raised their voice at Brown or threatened him.

Brown appeared to be in good physical condition and coherent. Brown did not

show signs of alcohol or drug use, understood what Agent Gignilliat said to him,



                                          4
and gave appropriate responses.

C.    Consent to Search

      After signing the Miranda waiver, Brown informed Agent Gignilliat that 100

pounds of marijuana were in his house. Brown also admitted that he had bought

fifty $5 bills and was bleaching them to make counterfeit money.

      Brown was primarily concerned that all the blame for the contraband in the

house should be laid at his feet and that his family should not be implicated. Agent

Gignilliat spoke with Agent McCravy, who indicated that Mrs. Brown was not a

target of the investigation. Agent Gignilliat conveyed this information to Brown.

      Brown asked to speak with his wife. Agent Gignilliat gave Brown a cellular

phone and allowed him to call Mrs. Brown. Mrs. Brown indicated to her husband

that she was not going to be detained. After this telephone call, Brown signed a

consent to search his house. Agent Gignilliat told Brown he could refuse to sign

the consent form.

      Meanwhile, Agent McCravy and several other agents arrived at the Browns’

residence with the baby. Brown’s sister and mother arrived at the home and asked

for the baby. Agents refused, indicating that they would give the baby only to Mrs.

Brown.

      Because it was raining, Agent McCravy kept the baby in her vehicle while



                                         5
they waited for Mrs. Brown. Once Mrs. Brown arrived, Agent McCravy and Mrs.

Brown walked to Agent McCravy’s vehicle so Mrs. Brown could get the baby. As

they walked, they discussed whether Mrs. Brown would consent to a search of her

house. Then, Agent McCravy was advised that Brown wanted to speak to his wife

on the telephone. Agent McCravy handed the telephone to Mrs. Brown.

      Following the call, Mrs. Brown said she would sign the consent to search

form. When Mrs. Brown signed the form, the baby was still in the back of Agent

McCravy’s car. However, signing the consent form was not a condition of

releasing the baby to Mrs. Brown. Mrs. Brown appeared to have no problems

understanding the agents and did not appear to be under the influence of drugs or

alcohol. Agents did not get to the point of telling Mrs. Brown that she could refuse

to consent because, as soon as she finished her telephone conversation with Brown,

Mrs. Brown said she would sign the consent form.

      After signing the consent to search form, Mrs. Brown took possession of the

baby and opened the door to the house for the agents. Mrs. Brown then left with

her mother-in-law and sister-in-law. At the residence, agents found materials for

manufacturing counterfeit currency, marijuana plants and two marijuana grow

rooms.

D.    Motion to Suppress



                                         6
      Prior to trial, Brown moved to suppress his confession and the evidence

seized during the search of his house. Brown argued that his Miranda waiver and

consent to search were coerced. The magistrate judge’s report and

recommendation (“R&R”) recommended that the motion to suppress be denied.

The magistrate judge found that Brown’s wife voluntarily consented to the search

of the house, noting, inter alia, that: (1) Mrs. Brown was never detained; (2) no

violence or threats of violence were used against her; (3) she appeared mentally

capable of granting consent; (4) she was given an opportunity to speak with Brown

before giving consent; (5) her consent to search was never conditioned upon her

regaining possession of her baby; and (6) the consent to search was given in the

presence of family members.

      The magistrate judge also found that Brown’s consent to search was

voluntary, noting that: (1) no one threatened or touched Brown; (2) Brown was

mentally capable of providing consent; (3) Brown had prior experience with the

criminal justice system and even asked for a copy of the federal sentencing

guidelines; (4) the agents permitted Brown to speak with his wife upon his request,

and a phone call occurred while his wife was taking custody of the baby; and (5)

Brown was advised of his right to refuse consent. The magistrate judge also

concluded that, even absent the consent of Brown and his wife, the Secret Service



                                          7
would have inevitably discovered the items in the search given that there was

probable cause to obtain a search warrant based on the agents’ observations of

Brown’s conduct during the transactions at the mall.

      Finally, the magistrate judge found that Brown voluntarily waived his

Miranda rights, noting: (1) Brown was neither intoxicated nor mentally impaired;

(2) Brown was not handcuffed, and weapons had not been drawn; and (3) Brown

was informed of the consequences of waiving his rights. The magistrate judge also

concluded that Brown was not coerced into his Miranda waiver by the agents

informing him that his baby would be given to DFACS if they were unable to

contact his wife. The magistrate judge also concluded that Agent Gignilliat did not

act in bad faith when he elicited potentially incriminating pre-Miranda warning

statements from Brown.

      The district court, over Brown’s objections, adopted the R&R and denied

Brown’s motion to suppress. Following a jury trial, Brown was convicted on all

counts. Brown filed this appeal.

                                   II. DISCUSSION

A.    Waiver of Miranda Rights

      On appeal, Brown argues that the district court erred in denying his motion

to suppress his confession. Brown contends that his confession was coerced



                                         8
because: (1) Agent McCravy threatened to turn Brown’s baby over to DFACS, (2)

Agent Donovan yelled and cursed at Brown to urge him to cooperate, and (3)

Agent Gignilliat questioned Brown and obtained his confession before giving

Miranda warnings.

       An accused effectively waives his Miranda rights if he: (1) voluntarily

relinquishes them as the product of a free and deliberate choice, rather than through

intimidation, coercion or deception; and (2) made his decision with the full

awareness of both the nature of the rights being abandoned and the consequences

of the decision to abandon them. United States v. Barbour, 70 F.3d 580, 585 (11th

Cir. 1995). A waiver is effective where the “totality of the circumstances

surrounding the interrogation reveal[s] both an uncoerced choice and the requisite

level of comprehension.” Id.2

       Here, the government presented evidence that Brown carefully read the

waiver form before signing it, debated with himself and discussed with agents

whether to waive his Miranda rights, and was told that nothing he had said prior to

the Miranda warnings could be used against him. There is no evidence in the

record that agents told Brown his baby would be turned over to DFACS if he did


       2
         A ruling on a motion to suppress presents a mixed question of law and fact. As such, we
review the district court’s factual findings for clear error and its application of the law to the
facts de novo. United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). We construe all
facts in favor of the prevailing party below. Id.

                                                9
not sign the waiver form. Agent McCravy testified that she merely explained to

Brown that she would have to call DFACS to take the baby if Brown did not

provide a telephone number for the baby’s mother. Brown himself did not testify

at the suppression hearing and no one contradicted the agents’ testimony.

Furthermore, although Agent Donovan initially yelled at Brown while he was held

in the mall security office, Brown’s decision to sign the waiver form was made

more than thirty minutes later, at the Secret Service office, during a nonthreatening

conversation with Agent Gignilliat.

      Finally, the existence of a statement made prior to receiving Miranda

warnings generally does not require suppression of a knowing and voluntary

statement made after the Miranda warnings have been given. Oregon v. Elstad,

470 U.S. 298, 309, 105 S. Ct. 1285, 1293 (1985); United States v. Street, 472 F.3d

1298, 1312 (11th Cir.), cert. denied, 127 S. Ct. 2988 (2007). We reject Brown’s

contention that he falls within the exception to this general rule first recognized in

Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601 (2004). No evidence was

presented to suggest that Brown’s first statement was the result of a deliberate

“question first” strategy by any agents. Indeed, the evidence indicated that Agent

Gignilliat mistakenly believed Brown had already been given his Miranda

warnings and that as soon as Agent Gignilliat learned the truth, Agent Gignilliat



                                          10
promptly explained to Brown that his previous statements to the agents could not

be used against him and gave Brown the full Miranda warnings. See Street, 472

F.3d at 1314 (concluding that second warned confession was admissible where

agent “messed up” and failed to give Miranda warnings before first confession).

      Given the totality of the circumstances, we cannot say the district court

clearly erred in finding that Brown knowingly and voluntarily waived his Miranda

rights. Accordingly, the district court did not err in denying Brown’s motion to

suppress his confession.

B.    Consent to Search

      We also conclude that the district court did not err in denying Brown’s

motion to suppress the evidence found during the search of his residence.

      Voluntary consent is a well-established exception to the Fourth

Amendment’s probable cause and warrant requirements. United States v. Garcia,

890 F.2d 355, 360 (11th Cir. 1989). In determining whether a defendant’s consent

to a search was voluntary, the district court examines the totality of the

circumstances, looking at “several indicators, including the presence of coercive

police procedures, the extent of the defendant’s cooperation with the officer, the

defendant’s awareness of his right to refuse consent, the defendant’s education and

intelligence, and the defendant’s belief that no incrimination evidence will be



                                          11
found.” United States v. Simms, 385 F.3d 1347, 1355 (11th Cir. 2004).3

       Here the evidence indicates that Agent Gignilliat asked Brown for his

consent in a non-threatening manner and advised Brown that he had the right to

refuse to consent. Again, although Agent Donovan had yelled at him at the mall

security office, that incident occurred over thirty minutes earlier in another

location, and there is no evidence that Agent Donovan was present when Agent

Gignilliat asked for Brown’s consent. There was also no evidence that the return

of Brown’s baby to Mrs. Brown was conditioned on Brown agreeing to the search.

Furthermore, agents permitted Brown to speak with his wife as she arrived at the

residence to take custody of their baby, which he did before giving his consent.

       Under the totality of the circumstances, we find no clear error in the district

court’s finding that Brown voluntarily consented to the search of his residence.4

       AFFIRMED.




       3
        We review the district court’s factual finding that consent was voluntary for clear error.
United States v. Zapata, 180 F.3d 1237, 1240-41 (11th Cir. 1999).
       4
         Because we affirm the district court’s finding that Brown voluntarily consented to the
search, we do not address the voluntariness of Mrs. Brown’s third-party consent or the district
court’s alternative application of the inevitable discovery doctrine.

                                                12
