             Case: 14-15719    Date Filed: 12/29/2015   Page: 1 of 7


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-15719
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 2:13-cr-00020-JES-DNF-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

JERRY WARD,

                                                            Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                              (December 29, 2015)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Jerry Ward appeals his conviction for possession of ammunition by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and (e)(1).

Specifically, he appeals the district court’s denial of his motion to suppress,
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arguing that: (1) the district court clearly erred in accepting the magistrate judge’s

determination that the testimony of Lee County Sheriff’s Deputy Bryson Clark was

more credible than Ward’s; (2) the deputy’s questioning of Ward was not a

consensual encounter; and (3) a search of his pillowcase was involuntary. After

careful review, we affirm.

      We review a district court’s denial of a motion to suppress evidence as a

mixed question of law and fact. United States v. Lewis, 674 F.3d 1298, 1302 (11th

Cir. 2012). Rulings of law are reviewed de novo, while the district court’s findings

of fact are reviewed for clear error, in the light most favorable to the prevailing

party below. Id. at 1302-03. Purely legal questions relating to a defendant’s claim

of a constitutional violation are reviewed de novo. United States v. Van De

Walker, 141 F.3d 1451, 1452 (11th Cir. 1998).             We review district court

determinations of voluntary consent for clear error. United States v. Zapata, 180

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

      First, we are unpersuaded by Ward’s challenge to the district court’s

assessment of witness credibility.     Determining the credibility of witnesses is

typically 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” it. United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002).

District courts are required to “conduct a proper credibility determination, which


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includes looking to the internal consistency of the [witness’s] testimony, or his

candor or demeanor on the stand.” Id. (quotation omitted). But we will defer to

the district court’s credibility determinations unless the evidence is “contrary to the

laws of nature, or is so inconsistent or improbable on its face that no reasonable

factfinder could accept it.” Id. (quotation omitted).

      Here, Ward has not met the burden of showing that the district court clearly

erred in adopting the magistrate judge’s credibility recommendation.               The

magistrate judge’s recommendation was based not only on Ward’s interest in the

case relative to Deputy Clark’s, but also on Clark’s calm and confident demeanor

when testifying. The magistrate judge expressly said that he had considered all the

testimony of the two witnesses in making the credibility recommendation. The

magistrate judge also noted that the differences in their testimony were material

and reasoned that, despite the plausibility and coherence of Ward’s version of

events, Clark’s version of events was more credible based on the other factors.

Thus, the determination was not so inconsistent or improbable on its face that a

reasonable fact finder could not accept it, nor was it contrary to the laws of nature.

      We also reject Ward’s claim that Deputy Clark’s questioning of Ward was

not a consensual encounter. The Fourth Amendment protects individuals from

unreasonable search and seizure. U.S. Const. Amend. IV. We have categorized

encounters between police and citizens into three broad types: “(1) police-citizen


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exchanges involving no coercion or detention; (2) brief seizures or investigatory

detentions; and (3) full-scale arrests.” United States v. Perez, 443 F.3d 772, 777

(11th Cir. 2006). The first type of encounter, often referred to as a consensual

encounter, does not implicate the Fourth Amendment at all. Id.

      The government bears the burden of proving a consensual encounter based

on a totality of circumstances. United States v. Jordan, 635 F.3d 1181, 1186 (11th

Cir. 2011). The Supreme Court has held that police officers may, without any

level of suspicion of criminal activity, pose questions, ask for identification, and

request consent to search luggage. United States v. Drayton, 536 U.S. 194, 201

(2002). Indeed, nothing in the Constitution “prevents a policeman from addressing

questions to anyone on the streets.” Jordan, 323 F.3d at 1186 (quotation omitted).

However, if the citizen’s cooperation is induced by “coercive means” or if a

reasonable person would not feel free to leave, then the encounter is no longer

consensual, a seizure has occurred, and the Fourth Amendment is implicated. Id.

      In determining whether a police-citizen encounter was consensual, we may

consider the following factors: (1) whether a suspect’s path is blocked or impeded;

(2) whether police retain his identification; (3) the suspect’s age, education and

intelligence; (4) how long he is detained and questioned; (5) how many officers

were present; (6) whether weapons were displayed; (7) whether there was any

physical touching of the citizen; and (8) the language and tone of voice used by


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police. Id. The ultimate inquiry remains whether a person’s freedom of movement

was restrained by physical force or a show of authority. Id.

      Here, Ward’s argument fails because the facts, when viewed in the light

most favorable to the government, show that the encounter was consensual.

Deputy Clark testified that he pulled up from behind and did not use his siren or

shout, but merely asked Ward a handful of questions. Moreover, Ward willingly

approached Clark and, when asked about the pillowcase, dumped its contents onto

the hood of Clark’s vehicle without being told to do so. His path was not blocked,

his identification was not retained, the questioning was brief, and Ward has

interacted with police in the past. Clark did not draw his weapon, nor did he

restrain Ward until he saw the magazine with the bullet visible at the top. Under

the government’s proof, the totality of the circumstances indicates that the

encounter was consensual until Clark spotted the magazine.        As a result, the

evidence was not tainted by an illegal encounter.

      Finally, we find no merit to Ward’s claim that the search of his pillowcase

was involuntary. Law enforcement officers may conduct a warrantless search

without probable cause if they first obtain voluntary consent. See United States v.

Blake, 888 F.2d 795, 798 (11th Cir. 1989). The government has the burden of

showing, by a preponderance of the evidence, both consent to search and that the

consent was voluntary. United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir.


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2004). The voluntariness of consent to law enforcement activity is judged in light

of the totality of the circumstances. United States v. Tobin, 923 F.2d 1506, 1512

(11th Cir. 1991) (en banc). “Whether consent is deemed involuntary depends upon

the amount of threat presented.” Id. This determination may encompass:

      [the] voluntariness of the defendant’s custodial status, the presence of
      coercive police procedure, the extent and level of the defendant’s
      cooperation with police, the defendant’s awareness of his right to refuse to
      consent to the search, the defendant’s education and intelligence, and,
      significantly, the defendant’s belief that no incriminating evidence will be
      found.

Blake, 888 F.2d at 798. Consent is voluntary if it is “the product of an essentially

free and unconstrained choice.” Zapata, 180 F.3d at 1241 (quotation omitted).

      Here again, the district court properly found that Ward’s actions were

voluntary. Deputy Clark did not ask to search the bag or view its contents in the

first instance. As Clark testified, Ward approached Clark when he pulled up

behind him, and when Clark questioned him, he unilaterally dumped the contents

of the pillowcase onto the police vehicle, putting them in Clark’s plain view. Clark

was alone, he did not use a weapon, and he did not shout or do anything else that

might be deemed threatening or coercive.         Moreover, Ward’s own attorney

conceded Ward is a “seasoned criminal,” so he likely has familiarity with police

procedure. And, his conversation from jail indicates he had forgotten he had the

bullets in his possession, thus it is plausible that he did not expect there to be

anything incriminating in the pillowcase when he overturned it. As we’ve already
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noted, the stop was properly deemed a consensual encounter; thus, there was no

illegal arrest to taint Ward’s voluntary conduct.

      AFFIRMED.




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