                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-1379
                                  ___________

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                                       * [UNPUBLISHED]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

                             Submitted: October 11, 2005
                                Filed: December 28, 2005
                                 ___________

Before LOKEN, Chief Judge, GRUENDER, and BENTON, Circuit Judges.
                              ___________

PER CURIAM.

       Mitchell Allen Cannon was convicted of being a felon in possession of a
firearm. The district court1 admitted evidence from a search of Cannon's apartment,
finding his consent was voluntary. Cannon appeals. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.




      1
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
                                          I.

        In February 2004, two law enforcement officers responded to an anonymous
phone call about strange odors coming from Cannon's apartment. The officers went
to the apartment, identified themselves, and explained they were there to investigate
odors in the area. One officer testified that Cannon said "come in." The other officer
testified that Cannon answered the door, spoke with them, turned and went inside,
leaving the door open for them to follow.

      Once inside, the officers noticed several car batteries being charged –
producing a very strong odor – as well as some ammunition on top of a television.
After Cannon and the officers removed the batteries from the apartment, one officer
asked if there were any guns there. Cannon replied he had hunting rifles, loaned to
him by the apartment complex owner, a hunting partner of his.

       During this investigation, one officer ran a record check on Cannon. It showed
an outstanding warrant, so the officer informed Cannon he was going to be arrested.
However, before being restrained, he asked to use the restroom. When he stood up,
a small bag containing methamphetamine fell out of his pocket and was seized by the
officers. Cannon was placed under arrest and asked if he would consent to a search
of the apartment. He consented. The officers then found two rifles, one shotgun, the
previously-seen ammunition, as well as a syringe, marijuana, and marijuana seeds.

       Cannon moved to suppress this evidence, asserting his consent was not
voluntary. He claims he was not "thinking clearly" because he had consumed alcohol
and felt intimidated and coerced by the officers. The district court denied the motion,
finding sufficient evidence that Cannon fully appreciated the consequences of his
actions.




                                         -2-
                                          II.

       Cannon attacks the district court's determination that he gave constitutionally
valid consent to the warrantless search of his apartment. In reviewing a denial of a
motion to suppress, this court reviews factual findings for clear error, and legal
conclusion de novo. See United States v. Huber, 404 F.3d 1047, 1053 (8th Cir. 2005).
Where the government relies on the defendant's consent to search, this court reviews
the determination of voluntariness for clear error. See United States v. White, 42 F.3d
457, 459 (8th Cir. 1994).

       A search conducted without a warrant is per se unreasonable subject only to
specifically established and well-delineated exceptions. See Katz v. United States,
389 U.S. 347, 357 (1967). One exception is a search conducted with valid consent.
See Davis v. United States, 328 U.S. 582, 593-594 (1946). The government "has the
burden of proving that the consent was, in fact, freely and voluntarily given." Bumper
v. North Carolina, 391U.S. 543, 548 (1968).

      Voluntariness is a question of fact determined by the totality of the
circumstances. See United States v. Mancias, 350 F.3d 800, 805 (8th Cir. 2003). This
includes "both the characteristics of the accused and the details of the interrogation."
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Threats, violence, or
promises are factors to be considered. See Simmons v. Bowersox, 235 F.3d 1124,
1132-1133 (8th Cir. 2001). In addition, a defendant's failure to protest is a factor in
determining valid consent. See United States v. White, 81 F.3d 775, 780 (8th Cir.
1996).

       At the time of the search, Cannon was 46 years old and living on his own.
Cannon does not suggest that his age or intelligence rendered him unable to give
consent. To the contrary, he acknowledged his prior felonies and experience with the
police from being "in jail so much." He did not protest or attempt to disrupt the search

                                          -3-
of his apartment. See United States v. White, 81 F.3d at 780. His claims of
involuntariness focus only on the armed officers' presence in his apartment and his
alleged intoxication.

       At the suppression hearing, Cannon testified he did not invite the police into his
apartment and did not feel free to leave once they were inside. In addition, he testified
he was intoxicated then. At no time during or before the search was Cannon advised
of his Miranda rights, or of any right to refuse consent to either the search or the
officers' entry into his apartment.

       For a search to be constitutionally valid, the totality of circumstances must
demonstrate that the police reasonably believe the search was consensual. See Illinois
v. Rodriguez, 497 U.S. 177, 185-186 (1990); United States v. Sanchez, 156 F.3d 875,
878 (8th Cir. 1998). As to the entry into the apartment, the district court believed the
officers' accounts. The officers also testified that only one partially-consumed beer
can was visible in the apartment, and Cannon did not appear intoxicated or impaired.
Although Cannon testified otherwise, the district court found "no evidence" of
intoxication, specifically ruling that the officers were more credible. Such credibility
determinations are "virtually unreviewable" on appeal. See United States v. Dishman,
377 F.3d 809, 811 (8th Cir. 2004); United States v. Harris, 352 F.3d 362 (8th Cir.
2003).

        The absence of Miranda warnings does not alone demonstrate involuntariness.
"While the state of the accused's mind, and the failure of the police to advise the
accused of his rights, were certainly factors to be evaluated in assessing the
'voluntariness' of an accused's responses, they are not in and of themselves
determinative." Schneckloth, 412 U.S. at 227. Most importantly, Cannon himself
testified that he knew he had the right to refuse consent for the officers to enter.




                                          -4-
      That Cannon was already in custody does not invalidate his consent. "[T]he
fact of custody alone has never been enough in itself to demonstrate a coerced
confession or consent to search." United States v. Watson, 423 U.S. 411, 424 (1976).
"Because even persons who have been arrested and are in custody can voluntarily
consent to a search," United States v. Chaidez, 906 F.2d 377, 382 (8th Cir. 1990),
Cannon's consent is not invalid for this reason.

      Based on the totality of the circumstances, the district court did not clearly err
in denying Cannon's motion to suppress.

                                          III.

      The judgment of the district court is affirmed.
                     ______________________________




                                          -5-
