                                                                           FILED
                           NOT FOR PUBLICATION                             NOV 10 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10144

              Plaintiff - Appellee,              D.C. No. 1:12-cr-00133-JMS-2

  v.
                                                 MEMORANDUM*
LARRY LEE,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Hawaii
                   J. Michael Seabright, District Judge, Presiding

                     Argued and Submitted October 8, 2014
            University of Hawaii William S. Richardson School of Law
                                Honolulu, Hawaii

Before: TASHIMA, RAWLINSON, and CLIFTON, Circuit Judges.

       Larry Lee appeals the district court’s order denying his motion to suppress

evidence found in his van and his conviction based upon that evidence. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       The district court, after considering the totality of the circumstances, found

that Lee voluntarily consented to the search of his van. That finding was not

clearly erroneous. The record supports the court’s findings that the officers were

not threatening throughout the interaction at Lee’s residence, the officers had told

Lee he could refuse to consent, and the officers did not threaten to obtain a

warrant. See United States v. Cormier, 220 F.3d 1103, 1113 (9th Cir. 2000),

United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1988), and United States v.

Alfonso, 759 F.2d 728, 741 (9th Cir. 1985).

      Additionally, the court did not err by considering Lee’s prior criminal

history and his exculpatory statements in its determination that Lee’s consent was

voluntary. See Cormier, 220 F.3d at 1113; Alfonso, 759 F.2d at 741. Lee’s

statements could be considered notwithstanding the officers’ failure to give him

any Miranda warnings. See United States v. Patane, 542 U.S. 630, 641-43 (2004).

      Although Lee argues that the district court erred by believing the officers’

testimony over Haas’s and Sablan’s testimony, the court of appeals gives “great[]

deference” to the district court’s credibility findings. See Nichols v. Azteca Rest.

Enter., 256 F.3d 864, 871 (9th Cir. 2001). The record does not indicate that the

district court clearly erred in its credibility determination. Because we conclude




                                           2
that Lee’s consent was voluntary, it is not necessary to examine the issue of the

automobile exception.

      AFFIRMED.




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