     Case: 18-11458       Document: 00515122336         Page: 1     Date Filed: 09/18/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                     No. 18-11458                         September 18, 2019
                                   Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

NATHAN DELANEY STORM,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:18-CR-12-1


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Nathan Delaney Storm was convicted of possessing 500 grams or more
of methamphetamine, with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1); possessing firearms in furtherance of a drug-trafficking crime, in
violation of 18 U.S.C. § 924(c); and possessing firearms as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). He challenges the denial of his motion to
suppress evidence seized during a warrantless search of his apartment.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
    Case: 18-11458      Document: 00515122336     Page: 2    Date Filed: 09/18/2019


                                  No. 18-11458

      First, Storm contends coercive police procedures rendered his consent
involuntary. Second, he asserts a statement made after receiving warnings
required by Miranda v. Arizona, 384 U.S. 436, 444–45 (1966), should have been
suppressed, because the alleged coercive police procedures rendered the
warnings ineffective.
      When reviewing the denial of a suppression motion, our court reviews
questions of law de novo; factual findings, for clear error. United States v.
Santiago, 410 F.3d 193, 197 (5th Cir. 2005). Factual findings are “clearly
erroneous if the court is left with the definite and firm conviction that a
mistake has been committed”. United States v. Hernandez, 279 F.3d 302, 306
(5th Cir. 2002) (internal quotations and citation omitted). Where, as here, the
denial of a suppression motion is based on testimony at a hearing, “the clearly
erroneous standard is particularly strong because the judge had the
opportunity to observe the demeanor of the witnesses”. Santiago, 410 F.3d at
197 (citation omitted). Further, we “review the evidence in the light most
favorable to the prevailing party”, in this instance, the Government. Id.
      A warrantless search is presumptively unreasonable, subject to certain
exceptions, including voluntary consent. Id. at 198. “The voluntariness of
consent is a question of fact to be determined from a totality of the
circumstances.” Id. at 199 (citation omitted). To evaluate the voluntariness of
consent, this court considers the following six factors, “all of which are relevant,
but no one of which is dispositive or controlling”:
      (1) the voluntariness of the defendant’s custodial status; (2) the
      presence of coercive police procedures; (3) the extent and level of
      the defendant’s cooperation with the police; (4) the defendant’s
      awareness of his right to refuse to consent; (5) the defendant’s
      education and intelligence; and (6) the defendant’s belief that no
      incriminating evidence will be found.

Id. (citations omitted).


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                                   No. 18-11458

      Although the district court did not make express factual findings in
support of its finding Storm’s consent was voluntary, our court can
“independently review the record to determine whether any reasonable view of
the evidence supports” the denial of the motion to suppress. United States v.
Yeagin, 927 F.2d 798, 800 (5th Cir. 1991) (citation omitted). In doing so, we
conclude it was not clearly erroneous for the district court to find Storm
voluntarily consented to the search.
      Storm’s assertions to the contrary are unpersuasive. Testimony from the
suppression hearing shows: the police treated Storm fairly, were courteous,
and were nice to both Storm and his mother; Storm was calm and not
argumentative when he was arrested; he confirmed his consent more than
once; he was advised he did not have to consent and could withdraw his
consent; he was cooperative and pointed the officers to the drugs in his
bedroom; and there was no testimony that officers were pointing firearms at
Storm when he consented.         Further, the presentence investigation report
shows Storm was 42-years-old at the time of his arrest, had completed the
tenth grade and obtained his high school equivalency certificate, and had a
history in the criminal justice system.
      Regarding the Miranda issue, because Storm did not object in district
court to the effectiveness of the Miranda warnings, review of the issue is only
for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012). Under that standard, Storm must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
reversible plain error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.




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                                  No. 18-11458

      Concerning Storm’s post-Miranda statement, he challenges only
whether his waiver of Miranda rights and agreement to give a statement were
voluntary in the light of the alleged coercive police procedures. To prevail,
Storm must show, on plain-error review, that, under the totality of the
circumstances, it was reversible plain error to find his post-Miranda statement
to police resulted from a “free and deliberate choice”, instead of its being the
product of “intimidation, coercion, or deception”. United States v. Cardenas,
410 F.3d 287, 293 (5th Cir. 2005) (citations omitted).
      Based on the totality of the circumstances, it was not clear or obvious
error to find Storm made a free and deliberate choice to waive his rights and
make a statement to the police about his drug-trafficking activities. Along that
line, there is no evidence his statement was elicited through intimidation,
coercion, or deception. Storm’s Miranda warning, waiver, and statement were
all digitally recorded.    There is no indication he expressed either an
unwillingness to proceed with the interview or an interest in ending the
questioning.    Additionally, the presence of multiple police officers was
insufficient to create the requisite plain error. See id. at 296. The same is true
for the use of handcuffs to restrain Storm, without more. See id. at 295 & n.7.
      AFFIRMED.




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