                                                                [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                               No. 10-10327                       SEPT 28, 2010
                           Non-Argument Calendar                   JOHN LEY
                                                                     CLERK
                         ________________________

                 D.C. Docket No. 3:09-cr-00096-WKW-CSC-1

UNITED STATES OF AMERICA,

                                                 lllllllllllllllllllllPlaintiff - Appellee,

                                     versus

JAMES HAROLD GRIFFITH,

                                              lllllllllllllllllllllDefendant - Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Alabama
                        ________________________

                             (September 28, 2010)

Before CARNES, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

      James Harold Griffith appeals his convictions for manufacturing and

possessing methamphetamine and maintaining a place for the purpose of
manufacturing, distributing, or using methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), 844(a), and 856(a)(1), and for possessing a firearm in furtherance of

a drug trafficking crime and as a convicted felon, in violation of 18 U.S.C.

§§ 924(c)(1) and 922(g)(1). On appeal, Griffith argues that the district court

clearly erred in denying his motion to suppress evidence. After review, we affirm.

                               I. BACKGROUND

      A federal grand jury, in a superseding indictment, charged Griffith with (1)

manufacturing 50 grams or more of methamphetamine, (2) possessing firearms in

furtherance of a drug trafficking offense, (3) two counts of possessing firearms as

a convicted felon, (4) maintaining a place for the purpose of manufacturing,

distributing, and using methamphetamine, and (5) possessing methamphetamine.

      Before trial, Griffith moved to suppress evidence seized during a search of

his home, alleging his consent to search was coerced. The magistrate judge held a

hearing.

      The government called Josh McAlister, a narcotics investigator for the

Tallapoosa County Sheriff’s Office, who testified that his office received

information that Defendant Griffith was manufacturing methamphetamine and that

Griffith had an outstanding arrest warrant for failure to appear concerning child

support. Investigator McAlister and two other investigators, Fred White and Cliff

                                         2
Scott, went to Griffith’s home and knocked on the door. Griffith came outside the

house through a different door when the investigators knocked, and McAlister told

Griffith he was under arrest. McAlister searched Griffith’s person, finding a vial

that contained methamphetamine.

      Investigator McAlister told Griffith that the investigators had received

complaints about Griffith cooking methamphetamine and asked if they could go

inside. Griffith then “started explaining that he had items that he had cooked with,

but not presently.” Griffith “said there were items here and I will show them to

you or whatever. I knew this was coming. I’m glad this is over with, those types

of things.” McAlister testified Griffith “seemed relieved,” was “not defensive at

all,” and told McAlister “that he would be glad to show me whatever.”

      Investigator McAlister and Investigator White went inside the house with

Griffith. McAlister wanted to go inside to talk to Griffith and also because the

investigators had seen another man, Lewis Flowers, at the home when they arrived

and had information that Flowers had a gun. Once inside, Griffith pointed out the

room Flowers was in and called for Flowers to come out. Investigator White also

yelled for Flowers to come out. Flowers came out with his hands raised, and the

investigators handcuffed Flowers and took Griffith and Flowers outside.




                                         3
Investigator White read Griffith and Flowers their Miranda1 rights and both men

said they understood them.

      Investigator McAlister went back into the house with Griffith. McAlister

testified they went back inside because Griffith had consented and said he would

show McAlister where the methamphetamine paraphernalia was. Griffith “was

being very cooperative” and told McAlister “it had been stressing him because he

didn’t want to be manufacturing dope anymore.” Griffith led McAlister to the

back bathroom and a camper behind the house where methamphetamine and items

used in its manufacture were located and “told [the investigators] everything [they]

wanted to know about the manufacturing.”

      Investigator McAlister testified he asked Griffith for permission to search

his property when they were inside the house. McAlister told Griffith that there

was an arrest warrant for him and that he would be arrested for the

methamphetamine, but the investigators did not have a search warrant and that was

why they were talking to him about consent. McAlister did not threaten or coerce

Griffith and made him no promises. When asked for consent to search, Griffith

said, “[y]es, he would take me to show me whatever.” Griffith placed no




      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

                                                4
limitations on the search. Griffith appeared to understand the investigators’

questions.

      The government’s next witness, Investigator White, gave similar testimony.

White testified he went into the house with Investigator McAlister and Griffith

and Griffith volunteered to call out to Flowers to come out of his room. When

Flowers came out of his room, all four men left the house and White read Griffith

and Flowers their Miranda rights. White did not threaten or coerce Griffith, and

Griffith seemed to understand his rights. Griffith waived his rights and said

something to the effect of “I just want to get this over with, man. I’m ready for

this to be over with.” White testified the investigators took Griffith and Flowers

outside for safety reasons, because they did not know where Flowers’s gun was

and they wanted to get him out of the house.

      After he waived his Miranda rights, Griffith took McAlister and White to

different places inside the house and to a camper behind the house and showed the

investigators drug paraphernalia and items used in the manufacture of

methamphetamine.

      Investigator White did not hear McAlister make any promises or threats to

Griffith or coerce Griffith in any way. White testified that when McAlister

searched Griffith and found the vial of methamphetamine, McAlister asked if

                                         5
Griffith had anything in relation to the methamphetamine in his pocket, and

Griffith said, “I got some old stuff. Come on, I want to show you.” McAlister

told Griffith the investigators did not have a search warrant, though they could

apply for one. Griffith was “very cooperative” and “very respectful” toward the

investigators, and they were respectful toward Griffith as well.

      The defense called Griffith, who testified that when the police arrived at his

house, he and Flowers had just finished smoking some methamphetamine.

Griffith went outside and asked McAlister what was going on. McAlister told him

he had a warrant for Griffith’s arrest for a child support violation. McAlister

handcuffed him.

      Griffith testified that McAlister did not ask to search the house and Griffith

did not give consent to search. McAlister asked Griffith who was in the house,

and Griffith told him Flowers was there. At that point the two investigators other

than McAlister went up to Griffith’s front porch, one of them opened the door, and

all four men went inside. The investigators asked Griffith to call Flowers out, and

he did so. McAlister then patted Griffith down inside the house and pulled out a

vial. McAlister looked at it and asked Griffith what he had in the bathroom.

Griffith said “whatever you find, take it all because I’m tired of this. Because I

was fed up with it, I mean the aggravation.”

                                          6
      One of the investigators took Flowers outside and the others, without asking

for Griffith’s consent, took Griffith back to the bathroom and started asking him

what everything was. Griffith explained what everything was. Griffith led the

investigators to the camper after McAlister asked about it, and Griffith unlocked it

for them. McAlister told Griffith he knew where everything was because Griffith’s

ex-girlfriend had already told the investigators. Griffith was “already inside” and

“already caught, so [he] wasn’t going to fight [the investigators],” but he never

gave them permission.

      Griffith testified the reason he went outside to meet the investigators was to

keep them out of the house because he knew what was in the house and that it was

illegal. However, the investigators “went ahead and pushed me inside anyway.”

When the investigators took Griffith inside the house, he did not believe he had a

choice in the matter. No one discussed consent to search the house. No one read

Griffith his Miranda rights until he got to the jail. Investigator White never spoke

to Griffith at the house.

      On cross-examination, Griffith testified that on the day after his arrest,

Griffith made a statement that McAlister typed up and Griffith signed. Griffith

acknowledged his statement said that he wanted the investigators to take

everything from the house so he could quit using methamphetamine.

                                          7
      The magistrate judge issued a report and recommendation (the “report”)

recommending that Griffith’s motion to suppress be denied. In the report, the

magistrate judge stated that because the testimony of Griffith and McAlister

conflicted on whether Griffith gave the investigators consent to search, the court

had to determine the witnesses’ credibility. The magistrate judge found Griffith’s

testimony was not credible and Griffith consented to the search:

      The court recognizes that it is improper to determine credibility based
      on the “status” of a witness. United States v. Ramirez-Chilel, 289 F.3d
      744, 749 (11th Cir. 2002). Thus, McAllister’s [sic] status as a police
      officer is not determinative. Rather, the court must weigh the testimony
      of these two witnesses in light of all the facts, taking into account their
      interests, the consistencies or inconsistencies in their testimony, and
      their demeanor on the stand. Gallego v. United States, 174 F.3d 1196,
      1198 (11th Cir. 1999). When weighing the testimony of Griffith with
      the testimony of other witnesses, the court finds that Griffith’s testimony
      is not credible. As the defendant in this matter, his interest in the
      outcome of this case militates against his veracity in this regard.
      Moreover, Griffith testified that immediately before the officers arrived
      at the residence, he and Flowers were smoking methamphetamine which
      does not give the court any confidence in his recollection of the events.
      The court concludes that Griffith was not credible and, therefore,
      McAllister [sic] asked for and received consent from Griffith to search.

The magistrate judge also found that Griffith’s consent was voluntary. The

magistrate judge reasoned that Griffith’s presence in his own living room militated

against coercion, that his being arrested and handcuffed on the child support




                                          8
warrant was only one factor for the court’s consideration, and that there was no

evidence that the investigators used coercive or threatening tactics.

       The district court adopted the magistrate judge’s recommendation and

denied the motion to suppress. Griffith objected to the recommendation, arguing

the magistrate judge made an improper adverse inference based on his status as a

defendant, but the district court determined that the magistrate judge had merely

taken into account Griffith’s interest in assessing the credibility of his testimony.

       At trial, Griffith was convicted on all six counts of the superseding

indictment. Griffith was sentenced to 248 months’ imprisonment.2

                                       II. DISCUSSION

       Griffith argues the district court erred in denying his motion to suppress

because the district court’s denial of the motion was based on the magistrate

judge’s clearly erroneous determination that Griffith’s testimony was not credible.3




       2
        Griffith had a criminal history category of III and a total offense level of 34 for all counts
except Count 2 (firearm possession in furtherance of a drug trafficking offense), yielding an
advisory guidelines range of 188 to 235 months’ imprisonment. Griffith was subject to a
mandatory 5-year consecutive sentence on Count 2 pursuant to 18 U.S.C. § 924(c). Griffith does
not appeal his sentence.
       3
         “A district court’s ruling on a motion to suppress presents a mixed question of law and
fact.” United States v. Garcia-Bercovich, 582 F.3d 1234, 1238 (11th Cir. 2009), cert. denied, 130
S. Ct. 1562 (2010). We review the district court’s factual findings for clear error and its
application of law to the facts de novo. Id.

                                                  9
        “Credibility determinations are typically the province of the fact finder

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

position than a reviewing court to assess the credibility of witnesses.” United

States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). Therefore, “we

should defer to the magistrate judge’s determinations unless his understanding of

the facts appears to be ‘unbelievable.’” Id. “In other words, we must accept 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. (brackets

omitted).

        The magistrate judge’s determination that Investigators McAlister and

White’s version of events was more credible than Griffith’s is not clearly

erroneous. The investigators’ testimony was plausible, and it was reasonable for

the magistrate judge to conclude that the investigators’ testimony that they asked

for and obtained Griffith’s voluntary consent to enter and search his house was

true.

        Griffith contends that the magistrate judge improperly based his credibility

finding on Griffith’s status as a defendant. We disagree. The magistrate judge

expressly noted that status-based credibility determinations are improper, and

merely took into account Griffith’s interest as one factor in determining his

                                           10
credibility. The magistrate judge’s report, as a whole, does not support Griffith’s

claim that the district court decided credibility merely because Griffith was the

defendant and McAlister and White were law enforcement officers.

      AFFIRMED.




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