                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-3493
                                   ___________

United States of America,               *
                                        *
            Appellee,                   * Appeal from the United States
                                        * District Court for the
      v.                                * Western District of Missouri.
                                        *
Anthony Byers,                          *       [UNPUBLISHED]
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: February 12, 2002

                                 Filed: February 28, 2002
                                  ___________

Before BOWMAN, RICHARD S. ARNOLD, and WOLLMAN, Circuit Judges.
                          ___________

PER CURIAM.

      Charged with being a felon in possession of a firearm, Anthony Byers filed a
motion to suppress evidence. After an evidentiary hearing, a Magistrate Judge issued
a report recommending that the motion be denied. Adopting the report and
recommendation, the District Court1 denied Byers's motion. Byers then entered a


      1
        The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri, adopting the report and recommendation of the
Honorable John T. Maughmer, Chief Magistrate Judge, United States District Court
for the Western District of Missouri.
conditional guilty plea and was sentenced. He now appeals the denial of his
suppression motion. We affirm.

       The Magistrate Judge's proposed findings of fact, adopted by the District Court,
are as follows:

      1.     On December 8, 2000, Officers Cooley and Hayes
             responded to an armed robbery call at 1409 Admiral.
             When they arrived at the location, Officers Choate and
             Lein had already contacted the robbery victim and
             ascertained that, according to the victim, the armed robbery
             suspect was in apartment 216. (Tr. 10, 4, 21) Officers
             Cooley and Hayes knocked on the door of apartment 216
             and called "police." (Tr. 13-14) An individual later
             identified as the defendant opened the door a crack and
             peered outside. (Tr. 13-14, 21) Officer Hayes asked to see
             both his hands. Defendant Byers showed both his hands
             and then opened the door. (Tr. 13). Officer Hayes asked
             if the officers could come inside to talk about a robbery.
             (Tr. 14-15). The officers stepped inside the apartment (Tr.
             14-15) At Officer Hayes' request, defendant Byers
             provided his identification. (Tr. 15). Officer Hayes
             provided the information to the police dispatcher for a
             computer check. The dispatcher responded that there was
             a city warrant for defendant Byers' arrest. (Tr. 5)
             Defendant Byers was arrested pursuant to the city warrant.
             (Tr. 5)

      2.     Officer Hayes asked defendant Byers for consent to search
             the apartment. Defendant Byers agreed. (Tr. 17, 5, 19)
             Officer Hayes left the apartment to get the consent to
             search form from her vehicle and then returned to the
             apartment and provided the consent to search form to
             defendant Byers. (Tr. 17) As defendant Byers was signing
             the consent to search form, Officer Hayes observed three
             bullets behind the television (Tr. 17, 19) During the course

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             of the search a handgun was found underneath a bathroom
             counter. (Tr. 5)

Report & Recommendation at 2 (filed May 9, 2001).

       Having considered the briefs and record, we conclude that all of these findings
are supported by evidence given at the hearing on the suppression motion and are
therefore not clearly erroneous. From these findings, it is apparent that police contact
with Byers was justified by a reported armed robbery at 1409 Admiral and the
victim's statement that the robber was in apartment 216; that police entry into the
apartment was with Byers's consent; and that after Byers had been arrested pursuant
to a city warrant, he voluntarily gave his consent for a search of the apartment.
Accordingly, Byers's arguments for reversal are unavailing, including the argument
that because the police were aware of inconsistencies in the victim's story about the
armed robbery they lacked a reasonable, articulable basis for suspecting that Byers
had engaged in any criminal activity. The victim's report, which the victim did not
recant until sometime after the officers already had arrested Byers, provided an ample
basis for an objectively reasonable suspicion that the occupant of apartment 216 had
engaged in criminal activity, even though the officers may have been aware there
were inconsistencies in the victim's story. In any event, inasmuch as the encounter
was consensual, there was no seizure of Byers for Fourth Amendment purposes until
he was arrested on the city warrant, and therefore it is not necessary to justify the
encounter by establishing a reasonable suspicion on the part of the officers. See
United States v. Perez-Sosa, 164 F.3d 1082, 1084 (8th Cir. 1998) ("Although the
Fourth Amendment prevents police from seizing a person without a reasonable
suspicion of criminal activity, the Amendment is not triggered by a consensual
encounter between an officer and a private citizen."), cert. denied, 525 U.S. 1186
(1999).




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       There being no clearly erroneous findings of fact and no error of law, the order
of the District Court is AFFIRMED. See 8th Cir. R. 47B.

      A true copy.

             Attest:

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




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