     Case: 10-40417 Document: 00511435690 Page: 1 Date Filed: 04/05/2011




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

                                                 FILED
                                                                             April 5, 2011
                                     No. 10-40417
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

SHIRLEY ANNETTE MCMILLAN,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:09-CR-92-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Shirley Annette McMillan appeals her guilty plea conviction for being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). McMillan
contends that the district court erred in denying her motion to suppress a
firearm found in her home and statements made during an alleged “custodial”
interview because Constable Robert Strause failed to inform her of her rights
under Miranda v. Arizona, 384 U.S. 436, 479 (1966).
       In considering a ruling on a motion to suppress, we review a district
court’s conclusions on Fourth Amendment issues de novo and its factual findings


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                   No. 10-40417

for clear error. United States v. Gomez-Moreno, 479 F.3d 350, 354 (5th Cir.
2007). The evidence is considered in the light most favorable to the prevailing
party, which in this case is the Government. United States v. Jones, 239 F.3d
716, 719 (5th Cir. 2001). “A factual finding is not clearly erroneous as long as
it is plausible in light of the record as a whole.” United States v. Jacquinot, 258
F.3d 423, 427 (5th Cir. 2001). “Where a district court’s denial of a suppression
motion is based on live oral testimony, the clearly erroneous standard is
particularly strong because the judge had the opportunity to observe the
demeanor of the witnesses.” United States v. Santiago, 410 F.3d 193, 197 (5th
Cir. 2005).
      The district court denied the motion to suppress because it determined
that McMillan voluntarily consented to Strause’s entry into her home, that she
voluntarily consented to a search of her home, and that she was not in custody
and was therefore not entitled to Miranda warnings. These findings are not
clearly erroneous.
      First, the district court’s finding that McMillan consented to Strause’s
entry into her home was based on testimony at the suppression hearing. The
district court credited Strause’s testimony that he requested, and received,
consent from McMillan to enter her home; the district court discredited the
testimony of the defense witnesses who stated otherwise. Given that this court
“will not second guess the district court’s factual findings as to the credibility of
witnesses,” see United States v. Garza, 118 F.3d 278, 283 (5th Cir. 1997), the
district court did not clearly err in determining that McMillan voluntary
consented to Strause’s entry into her home. See id. Accordingly, the district
court did not err by denying McMillan’s motion to suppress on this basis.
      Second, the district court did not clearly err in determining that McMillan
voluntarily consented to Strause’s search of her home.           In evaluating the
voluntariness of McMillan’s consent, this court considers six factors:



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                                  No. 10-40417

      (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.
See Solis, 299 F.3d at 436 & n.21 (internal quotation marks and citation
omitted). No single factor is dispositive. Id. at 436.
      All these factors support a finding that McMillan voluntarily consented to
Strause’s search. The record reflects that McMillan voluntarily consented to
Strause’s entry into her home; she was not handcuffed, arrested, or taken from
her home. Additionally, Strause alone questioned her, and he was the only law
enforcement officer present in the home until backup arrived. There is no
evidence that Strause used coercive police tactics, and he did not brandish his
weapon. Further, the door to McMillan’s home remained open throughout the
questioning. Although Strause did not inform McMillan that she had the right
to withhold consent to a search of her home, McMillan is a convicted felon with
numerous arrests and convictions, which leads to the conclusion that she was
aware of her rights, including the right to withhold consent to the search.
Further, Strause requested McMillan’s consent two times before he began his
search, which implied that she had the right to not consent to the search. There
is no evidence that McMillan had below average intelligence or education level,
and the district court noted that during the hearing on the motion to suppress
“she appeared to understand the questions posed to her.” Finally, when Strause
asked McMillan if he could search her home, she replied that she had nothing
to hide, thus evidencing her belief that no incriminating evidence would be
found. Based on the totality of the circumstances, the district court did not err
by denying the motion to suppress on this basis. See Gomez-Moreno, 479 F.3d
at 354, 357.




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                                  No. 10-40417

      Third, the district court did not clearly err in determining that McMillan
was not in custody during Strause’s interrogation because McMillan has not
shown that a “reasonable person in [her] position would have understood the
situation to constitute a restraint on freedom of movement of the degree which
the law associates with formal arrest.” See United States v. Courtney, 463 F.3d
333, 337 (5th Cir. 2006) (internal quotation marks and citation omitted).
      McMillan was not handcuffed, arrested, or taken from her home. Only
Strause questioned her, and he did not brandish his weapon. Moreover, the
record is devoid of any evidence that McMillan asked to leave or asked for an
attorney or that Strause informed her that she was not free to leave. Based on
the foregoing, the district court did not clearly err in determining that McMillan
was not in custody during Strause’s interrogation and therefore that he was not
obligated to Mirandize her. See United States v. Pofahl, 990 F.2d 1456, 1487
(5th Cir. 1993) (determining that defendant was not in custody during an
interrogation because he voluntarily answered questions in his home, was not
arrested, and was not restrained). Consequently, the district court did not err
by denying the motion to suppress on this basis.
      AFFIRMED.




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