                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT



       ________________

          No. 04-2098
       ________________

United States of America,                *
                                         *
            Appellee,                    *
                                         *
      v.                                 *
                                         *
Augustin Lopez-Rodriguez,                *
                                         *
            Appellant.                   *

       ________________
                                                Appeals from the United States
          No. 04-2149                           District Court for the
       ________________                         Southern District of Iowa.

United States of America,                *
                                         *
            Appellee,                    *
                                         *
      v.                                 *
                                         *
Janice Marie Bagley,                     *
                                         *
            Appellant.                   *

                               ________________

                        Submitted: November 16, 2004
                            Filed: February 3, 2005 (corrected February 4, 2005)
                               ________________
Before MURPHY, HANSEN, and MELLOY, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

       Following the district court’s1 denial of their joint motion to suppress evidence,
Augustin Lopez-Rodriguez conditionally pleaded guilty to Possessing with Intent to
Distribute Methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)
(2000), and Janice Marie Bagley conditionally pleaded guilty to Maintaining a Drug
House in violation of 21 U.S.C. § 856 (2000). Lopez received a 120-month sentence,
and Bagley received a 30-month sentence. They appeal the denial of their motion to
suppress, and we affirm.

                                           I.

       Narcotics detectives obtained records of a call placed to 2050 King Avenue,
Apartment #24, Des Moines, Iowa, from a cellular telephone that the detectives
recovered following the arrest of two individuals for drug-related activity. Special
Agents Ken Ardhuser and Pat Waymire of the Iowa Department of Public Safety,
Division of Narcotics, and Detective Curtis Pote of the Ankeny Police Department
went to the King Avenue address. Upon arriving about 4:20 p.m., Agent Ardhuser
knocked on the apartment door, identifying himself as a police officer and
announcing that he was following up on a drug investigation. After several moments,
Bagley opened the door. The testimony at the suppression hearing is contradicted as
to whether the officers asked permission to enter the apartment or whether Ardhuser
stepped inside the door without asking permission, but in any event, the officers
entered the apartment. The district court found that Bagley did not verbally invite the
officers into the apartment.

      1
        The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
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      Once inside, the officers explained to Bagley and Lopez that they had received
“complaints” of drug activity related to the apartment. Bagley admitted that there was
marijuana in the apartment. Ardhuser asked to see it, and Bagley verbally agreed to
a search of the apartment. Lopez showed Ardhuser to the bedroom where the
marijuana was located along with a small chunk of methamphetamine. Ardhuser
discovered a large amount of methamphetamine under a bag in a trash can in the
bedroom. Ardhuser immediately returned to the kitchen and informed Bagley and
Lopez of their Miranda rights. One of the officers obtained a consent-to-search form
from his car, and within ten minutes from when the officers first knocked on the door,
both defendants had signed a consent to search the apartment and Bagley’s car.

      The defendants moved to suppress the methamphetamine and statements made
by them on the basis that there was no search warrant and no valid consent given to
search the apartment. The district court denied the motion, and both defendants
conditionally pleaded guilty. Lopez and Bagley each appeal the denial of the motion
to suppress.

                                          II.

       Appellants argue that the officers violated their Fourth Amendment rights to
be free from unreasonable searches because the officers entered the apartment without
the appellants’ consent, and the officers searched the apartment without their
voluntary consent. The district court found that Bagley at least implicitly granted the
officers permission to enter the apartment. It also found that both appellants verbally
consented to the officers’ search of the apartment once inside. Whether consent is
voluntarily given is a fact-finding that we review for clear error. See United States
v. Sanders, 341 F.3d 809, 818 (8th Cir. 2003), cert. denied, 124 S. Ct. 1525 (2004).

    The Fourth Amendment (applicable to state actors by way of the Fourteenth
Amendment) protects individuals from unreasonable searches of their homes. Law

                                          -3-
enforcement officers generally must obtain a warrant, supported by probable cause,
before they can search an individual’s home. Neither a warrant nor probable cause
is needed, however, when the individual voluntarily consents to the search. See id.
The government must establish, by a preponderance of the evidence, that the consent
to the search was legally sufficient before the fruits of the search may be admitted
into evidence. See id.; United States v. Cedano-Medina, 366 F.3d 682, 684 (8th Cir.),
petition for cert. denied, __ U.S.L.W. __ (U.S. July 28, 2004) (No. 04-5708).
Because the Fourth Amendment protects against unreasonable searches, a search is
not unconstitutional as long as the officers reasonably believed that consent was
voluntarily given. See Cedano-Medina, 366 F.3d at 684. “In other words, a person
can render a search legal by behaving in a way that would cause a reasonable person
to believe that he or she has knowingly and voluntarily consented, whether or not the
person actually intends to consent.” Id. at 684-85.

       The appellants make much of the fact that Agent Ardhuser testified that his
normal procedure is to attempt to step inside the home once the door is opened
without requesting permission, if the occupant allows it. (See Suppression Tr. at 20.)
Although Agent Ardhuser testified that he did not request permission from Bagley to
enter the apartment when she opened the door, he did testify that Bagley “opened the
door and invited us in.” (Id. at 16.) Agent Waymire testified that Bagley agreed to
let them in after they identified themselves and asked if they could talk with her. (Id.
at 51.) Bagley was twice asked at the suppression hearing whether she gave the
officers permission to enter the apartment, and both times she responded vaguely that
she opened the door and the officers came in. (Id. at 78.) She never refuted the
officers’ testimony that she invited them in, nor did she testify that she asked them
to leave or stop their search. An occupant can grant permission for officers to enter
a home by his or her actions. See Cedano-Medina, 366 F.3d at 686 (finding officer’s
belief that consent was given to be reasonable where defendant opened the door to
his truck, stood back along the side of the road while the officer searched the truck,
and never attempted to stop the search, despite an apparent language barrier during

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the officer’s attempt to obtain oral consent to the search). Given the divergence of
the testimony, and the district court’s superior perspective in analyzing the credibility
of the witnesses, we cannot say that the district court clearly erred in determining that
the officers reasonably believed that Bagley gave them permission to enter the
apartment. See id. at 687 (affirming denial of suppression motion and noting that
while the appellate court may have had concerns with the evidence if it were
reviewing the case in the first instance, the district court’s conclusion was not clearly
erroneous); United States v. Boyd, 180 F.3d 967, 978 (8th Cir. 1999) (officers
reasonably believed that they had permission to enter a home when the person who
answered the door pointed up the stairs and stated that the defendant was “up in his
room”).

       Once inside, the officers asked Bagley if it was okay to search the apartment,
to which she responded “yes.” (Suppression Tr. at 80, 86.) Agent Waymire testified
that both Bagley and Lopez consented to the officers’ request to search the apartment.
(Id. at 42.) Prior to the officers beginning their search, Bagley offered the
information that there was marijuana in the apartment, and Lopez led Agent Ardhuser
to the bedroom to show him the drugs. Contrary to appellants’ contentions on appeal
that Bagley was intimidated by the officers and felt she had no choice but to consent
to a search, Bagley testified at the suppression hearing that the officers were in plain
clothes, she never saw any guns, and the officers were not threatening. (Id. at 87-88,
92.) Regardless of Bagley’s unvoiced, subjective feelings about whether she could
decline the officers’ request to search the apartment, the evidence establishes that the
officers reasonably believed that Bagley and Lopez voluntarily consented to the
search of the apartment. The district court did not clearly err in determining that the
officers searched the apartment pursuant to a valid consent.

                                          III.

      We affirm each of the district court’s judgments.
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