                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              Oct. 6, 2009
                              No. 09-11218                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 08-60206-CR-KAM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JOHN HANS THOMAS,
a.k.a. Jules Lucien,

                                                          Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                              (October 6, 2009)

Before BLACK, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

     Defendant-appellant John Hans Thomas appeals his conviction for
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). At

issue in this case is whether the district court properly denied the motion to

suppress evidence seized from Thomas’s home.1 Thomas contends that, in denying

his motion to suppress, the district court erred in finding (1) the government

witnesses more credible; (2) that probable cause and exigent circumstances

justified the officers’ warrantless entry into his home; and (3) that the consent

forms signed by Thomas and his girlfriend were signed voluntarily. After a

thorough review of the record and the briefs, we affirm.

       “A district court’s ruling on a motion to suppress presents mixed questions

of law and fact.” United States v. Ramirez-Chilel, 289 F.3d 744, 748-49 (11th Cir.

2002). We review “findings of fact for clear error and the application of the law to

those facts de novo.” United States v. Martinelli, 454 F.3d 1300, 1306 (11th Cir.

2006). In reviewing the district court’s ruling, we must construe the facts in the

light most favorable to the prevailing party below. United States v. Smith, 459

F.3d 1276, 1290 (11th Cir. 2006).

       Credibility determinations are within the province of the fact finder “because

the fact finder personally observes the testimony and is thus in a better position



       1
          Thomas entered a conditional plea and reserved the right to appeal the denial of his
motion to suppress. He was sentenced to 18 months’ imprisonment. He was released from
incarceration on July 31, 2009 and is currently serving his two-year term of supervised release.

                                                2
than a reviewing court to assess the credibility of witnesses.” Ramirez-Chilel, 289

F.3d at 749. Furthermore, if testimony presented by opposing witnesses at the

hearing are in “direct conflict,” the district court’s decision to lend credence to one

party’s version should be “conclusive” and warrants reversal only if the court

credits “exceedingly improbable” or even “unbelievable” testimony. Id.

(quotations omitted). Likewise, we “must accept the [district court’s interpretation

of the] evidence unless it 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).

      Thomas’s first challenge on appeal is to the district court’s credibility

determination.

      According to the testimony at the suppression hearing, Detective Osvaldo

Tianga and Detective Samuel Wagers were on patrol when they observed a known

drug user named Greg Saunders on a bicycle. They followed Saunders to

Thomas’s residence, where Saunders knocked on the door, spoke with Thomas,

and exchanged money for a “small item.” The detectives arrested Saunders a few

blocks from the house and, after the detectives found a “baggy” of cocaine on

Saunders, Saunders admitted that he had obtained the cocaine from Thomas for

$20 at Thomas’s residence.



                                            3
      Tianga initiated surveillance on Thomas’s residence, contacted the state

attorney’s office, and prepared an application for a search warrant. Wagers

continued the surveillance and Tianga left to e-mail the application to the state

attorney’s office and print out a warrant to be signed by a judge. Tianga was

scheduled to meet with the judge later that day.

      Before Tianga could obtain the warrant, a female, later identified as

Thomas’s girlfriend Angela McRae, arrived at the residence, entered through the

backdoor, came out several times, and then walked to the sidewalk and looked

directly at Wagers’ vehicle. Wagers radioed Tianga that McRae had compromised

the undercover surveillance. In order to avoid the destruction of evidence, and

because Tiago believed he had probable cause for an arrest, Tianga decided to

“seize” Thomas. Tianga obtained a house key from Thomas’s landlord and arrived

at the house within five minutes of the radio call from Wagers. Tianga noticed that

the backdoor was not completely shut and was “kind of” propped open. Tianga

entered the house and saw McRae, who shouted something to the effect of “the

police are here.” Tianga then observed Thomas exiting the bathroom. Tianga did

not know whether there were others in the house or if anyone was armed.

      Tianga and Wagers placed Thomas under arrest and handcuffed him. They

then escorted Thomas, McRae, and two small children out of the residence and



                                           4
conducted a security sweep inside with their guns drawn. They did not conduct a

detailed search at that time. After the security sweep, the officers read Thomas his

Miranda2 rights, which Thomas agreed to waive. As Tianga was preparing to

leave, he informed the other officers on the scene that he still had to meet with the

judge to obtain a search warrant. Thomas and McRae overheard the conversation

and questioned Tianga about the search warrant. Tianga explained that he believed

there were narcotics inside the house, to which Thomas replied that “[t]here’s

nothing inside the house, only a couple bags of weed.” Thomas inquired about his

girlfriend and children, and Tianga informed him that Thomas was the only suspect

at the moment, but that if, after obtaining the search warrant, officers discovered

evidence inside the house implicating McRae, she would be “taken to jail” and

their children could possibly be “going to protective services.” Tianga testified,

however, that despite this statement he did not believe “in [his] gut” that McRae

was involved.

      At this point, Thomas confirmed that McRae was not involved and offered

to walk Tianga into the house to retrieve the marijuana. Thomas stated that he had

a gun inside as well. Tianga informed Thomas that he needed both Thomas and

McRae to sign a consent form and he read the forms out loud to Thomas and



      2
          Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                               5
McRae. The forms advised Thomas and McRae that they had the right to refuse

consent and that they could require police to obtain a warrant. After a private

discussion, Thomas and McRae signed the forms. Thomas then walked Tianga

into the house and produced two bags of marijuana in the bedroom, a gun inside

the closet, and $720 in “drug money” in a shirt pocket in the closet. Tianga

conducted a more detailed search afterward and discovered cocaine in the

bathroom.

      McRae testified that she arrived home and started to prepare dinner. Once

she got home, she stayed inside the house and did not go outside again. She

admitted that she looked out the window and noticed someone was parked across

the street, but claimed that she did not realize it was the police. While she was in

the kitchen, Tianga used a key to enter the house through the backdoor, ordered

everybody outside, and told her that if she did not sign a consent form, she would

be arrested and her children would go to “HRS.” She signed the consent form

because of the threats and because Tianga said he was going to get a warrant any

way. She denied any knowledge of the drugs.

      The government recalled Tianga, who testified that McRae had informed

him on the day of the incident that the drugs in the house belonged to Thomas and

that she had nothing to do with it. Tianga also stated that McRae lied about not



                                           6
noticing police surveillance because she also had revealed to him that Thomas had

spotted the police first and she went outside to investigate further.

      Based on this testimony, the district court found that the officers were more

credible than McRae. We conclude that this finding was not erroneous. The

district court observed the demeanor of each witness and was in the best position to

review credibility. On this basis, we accept the district court’s credibility

determination.

      We next turn to the issue of whether the police properly entered the home

based on probable cause and exigent circumstances.

      The Fourth Amendment protects the right of persons to be free from

unreasonable searches and seizures. U.S. Const. amend. IV. A “warrantless entry

into a suspect’s home to search the premises is presumed to be unreasonable.”

Ramirez-Chilel, 289 F.3d at 751. Nevertheless, there are exceptions to this general

rule, such as where the combination of probable cause and exigent circumstances

justifies a warrantless home intrusion. United States v. Tobin, 923 F.2d 1506,

1510 (11th Cir. 1991) (en banc). Probable cause exists when, under the totality of

the circumstances, there is a fair probability that contraband or evidence of a crime

will be discovered in a particular place. Id. Exigent circumstances exist when the

situation demands an immediate response from police officers. United States v.



                                           7
Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002). A warrantless search under

exigent circumstances must be “strictly circumscribed by the exigencies which

justified its initiation.” Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408,

2413, 57 L.Ed.2d 290 (1978) (quotation omitted). Likewise, an exigency only

excuses a “limited” intrusion and, once inside the residence, the officers may only

seize evidence “found within plain view.” Holloway, 290 F.3d at 1334.

      Exigent circumstances can occur where the risk of removal or destruction of

narcotics exists. Tobin, 923 F.2d at 1510. We have held that narcotics cases can

present a “particularly compelling” need for the exigent circumstances doctrine

because “contraband and records can be easily and quickly destroyed while a

search is progressing.” United States v. Young, 909 F.2d 442, 446 (11th Cir.

1990). In determining whether agents reasonably feared imminent destruction of

evidence, the appropriate inquiry is whether a reasonable, experienced agent would

believe that, at the moment of entry, evidence might be destroyed before a warrant

could be secured. Id.

      Here, the district court properly concluded that probable cause and exigent

circumstances justified the warrantless intrusion into Thomas’s residence. The

officers reasonably believed that narcotics were present and might be destroyed

before a warrant could be secured, and their intrusion was limited and directly



                                          8
proportional to the exigency of this case. Accordingly, we conclude that probable

cause and exigent circumstances permitted the officers to enter the house.

         Finally, we turn to the issue of whether Thomas’s and McRae’s consents to

the subsequent search were voluntary. Thomas argues that both he and his

girlfriend only consented based on explicit threats to arrest his girlfriend and send

their children to social services if they did not cooperate.

         A person can consent to a search, but in order for a consensual search to be

constitutional, it must be voluntary. United States v. Acosta, 363 F.3d 1141, 1151

(11th Cir. 2004). Consent to a warrantless search is voluntary if it is “the product

of an essentially free and unconstrained choice.” United States v. Garcia, 890 F.2d

355, 360 (11th Cir. 1989). Voluntariness is a question of fact based on the totality

of the circumstances. Acosta, 363 F.3d at 1151. In evaluating voluntariness of

consent, a court “should look 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 incriminating

evidence will be found.” United States v. Simms, 385 F.3d 1347, 1355 (11th Cir.

2004).

         The facts of this case are similar to those of United States v. Delancy, 502



                                             9
F.3d 1297 (11th Cir. 2007). In that case, police sought to question Delancy as a

material witness. After being unable to find Delancy, they went to the home of his

girlfriend, LaSandra Godfrey. They approached the house with weapons drawn

and observed the door open and quickly close. When Delancy exited the house a

short time later, police handcuffed him and took him into custody. Police then

entered the house to conduct a protective sweep and found Godfrey and her

children inside. After speaking with police, Godfrey gave oral and written consent

to search the house. Delancy subsequently gave his consent. During the search

that followed, police found drugs and a firearm. 502 F.3d at 1301-04. Delancy

challenged the search and the consent given by both Godfrey and himself, claiming

that the police requested consent while their guns were drawn and after threatening

to take Godfrey’s children to protective services. Id. at 1302-03. The district court

found the testimony of the officers was more credible than that of Delancy and

Godfrey and therefore concluded the consent was voluntary. On appeal, this court

focused on Godfrey’s consent and concluded it was voluntary in light of the

officers’ credible testimony. Id. at 1308.

      We are persuaded by the court’s reasoning in Delancy to conclude the

consents given by Thomas and McRae were voluntary. The district court found the

testimony of the officers involved was more credible. Thus, we reject, as the



                                             10
district court did, Thomas’s and McRae’s claims of coercion.

      The remaining facts of the case do not establish that the consent was

involuntary. First, although Thomas was handcuffed and under arrest, McRae was

not. See Delancy, 502 F.3d at 1307. Additionally, Thomas initiated the

conversation with police; he was not subject to any questioning or coercion.

Moreover, the consent form advised Thomas and McRae of their right to refuse

consent. Simms, 385 F.3d at 1355. Under these facts, we conclude the consents

given by Thomas and McRae were voluntary.

      For the foregoing reasons, we affirm Thomas’s conviction.

      AFFIRMED.




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