                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 03-4045
                               ________________

United States of America,               *
                                        *
            Plaintiff–Appellee,         *
                                        *      Appeal from the United States
      v.                                *      District Court for the
                                        *      Western District of Missouri
Timothy W. Hines,                       *
                                        *             [PUBLISHED]
            Defendant– Appellant.       *

                               ________________

                               Submitted: September 16, 2004
                                   Filed: November 1, 2004
                               ________________

Before COLLOTON, HEANEY, and HANSEN, Circuit Judges.
                       ________________

HANSEN, Circuit Judge.

      Timothy W. Hines was convicted of conspiracy to manufacture
methamphetamine in excess of 50 grams (Count One) and possession of
pseudoephedrine with the intent to manufacture a controlled substance (Count Two).
See 21 U.S.C. §§ 841 and 846 (2000). Because of his prior drug conviction, Hines
was sentenced to a mandatory statutory sentence of life in prison on Count One and
a concurrent sentence of 240 months in prison on Count Two. On appeal, Hines
argues that the district court1 erred when it denied his pretrial motions to suppress
evidence, statements, and a pre-trial identification. After careful review, we affirm
the judgment of the district court.

       On May 9, 2001, William Cummins, an employee of a Walgreens pharmacy in
Independence, Missouri, called the police. Mr. Cummins reported that a particular
customer had been in the store twice that day, each time purchasing ten boxes of cold
medicine containing pseudoephedrine, a compound used in the illicit manufacture of
methamphetamine. Mr. Cummins also reported that he had seen the customer in the
store on previous occasions making similar purchases. He described the customer as
a heavyset, balding white man, wearing an artificial leg with a Harley Davidson
emblem on it. From the description, Detective Bill Sweeney suspected Hines, who
had been named numerous times in other narcotics investigations as someone
involved in the manufacture of methamphetamine. Detective Sweeney interviewed
Mr. Cummins at Walgreens and showed him a single photograph of Hines, whom Mr.
Cummins immediately identified as the person who had purchased the cold medicine.
Mr. Cummins also gave a description of and the license plate number for the vehicle
that the customer had been driving. The vehicle was registered to Timothy Hines of
812 N. Woodland Road, Independence, Missouri.

       On June 12, 2001, officers from the Kansas City Metro Methamphetamine Task
Force and the Independence, Missouri, Police Department Drug Enforcement Unit
went to 812 N. Woodland. Hines shared the residence with 82-year-old Freda
Brummet, who owned the home. Hines did work on the property in exchange for a
room in the basement. Ms. Brummet signed a consent to search form giving the
officers permission to search the residence, listed on the form as “a single family

      1
       The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable John
T. Maughmer, Chief Magistrate Judge, United States District Court for the Western
District of Missouri.
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dwelling and one attached single garage/outbuilding.” In fact, the garage was not
attached to the house.

       Not long after the officers arrived, they seized a filled syringe from Hines’s
shirt pocket and placed Hines under arrest. Hines was given a written advisory of his
rights, pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), which he initialed. The
officers then questioned Hines, and Hines made several statements. Upon searching
the house and the garage, the officers found and seized numerous items associated
with the manufacture of methamphetamine.

      On August 23, 2001, Detective Steve Cook, of the Jackson County Drug Task
Force, presented Mr. Cummins (the Independence, Missouri, Walgreens employee)
with a six-person photo lineup. Mr. Cummins again identified Hines's picture and
described Hines as a white male wearing a prosthetic leg with a Harley Davidson
emblem on it.

       Hines filed a motion to suppress statements, evidence, and the one-person
photo identification that took place on May 9, 2001. Because the government
indicated that it was not going to use the one-person photo identification at trial, the
issue on the motion became whether the May 9, 2001, procedure was so suggestive
as to taint any later identification. The magistrate judge held a hearing and filed a
report recommending that the district court deny all of Hines’s motions.2 The district
court adopted the magistrate judge’s report and recommendation.

       We first consider whether the one-person photo lineup presented to Mr.
Cummins was so unduly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification that tainted the later photo identification on August 23,


      2
       Ms. Brummet did not testify because she passed away shortly before the
hearing.
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2001, and the in-court identification by Mr. Cummins. Because this claim implicates
a defendant’s constitutional right to procedural due process, we review de novo.
United States v. Williams, 340 F.3d 563, 567 (8th Cir. 2003); United States v. Davis,
103 F.3d 660, 669 (8th Cir. 1996).


       In this case, we assume, as did the district court, that the first identification
procedure used was impermissibly suggestive. Thus, we go on to “examine the
totality of the circumstances to determine whether the suggestive procedure[] created
‘a very substantial likelihood of irreparable misidentification.’” Williams, 340 F.3d
at 567 (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). We consider
“‘the opportunity of the witness to view the criminal at the time of the crime, the
witness’ degree of attention, the accuracy of his prior description of the criminal, the
level of certainty demonstrated at the confrontation, and the time between the crime
and the confrontation.’” Williams, 340 F.3d at 567 (quoting Manson v. Brathwaite,
432 U.S. 98, 114 (1977)). As the district court observed, the facts are undisputed that
Mr. Cummins saw Hines in the store twice on the day that the first identification was
made; Mr. Cummins remembered seeing Hines in the store previously; he was able
to give the police a reliable and distinct description of Hines; and he was able to
provide the police with a description of and a license plate number for Hines’s
vehicle. We agree with the magistrate judge and the district court that, even assuming
that the first identification procedure was impermissibly suggestive, the totality of the
circumstances indicate that it did not create a substantial likelihood of irreparable
misidentification that tainted any later identification. We hold that the district court
did not err in denying the motion to suppress based upon the one-photo identification
procedure used on May 9, 2001.


    We next consider Hines’s argument that the search violated the Fourth
Amendment because the officers did not obtain valid consent to search the 812 N.
Woodland residence. We will affirm a district court’s order denying a defendant’s

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motion to suppress “‘unless the decision is unsupported by substantial evidence, is
based on an erroneous view of the applicable law, or in light of the entire record, we
are left with a firm and definite conviction that a mistake has been made.’” United
States v. Welerford, 356 F.3d 932, 935 (8th Cir. 2004) (quoting United States v.
Vanhorn, 296 F.3d 713, 717 (8th Cir. 2002), cert. denied, 537 U.S. 1167 (2003)). We
review the district court’s factual findings for clear error and review de novo the
ultimate question of whether there was a Fourth Amendment violation. United States
v. White, 356 F.3d 865, 868 (8th Cir. 2004). We hold that the officers obtained valid
consent to search and that neither a warrant nor exigent circumstances were
necessary. It is undisputed that the officers obtained the signed consent of Ms.
Brummet, the owner and a common occupant of the property, to search the residence.
“The Fourth Amendment’s general prohibition against warrantless searches does not
apply when officers obtain voluntary consent from the person whose property is
searched or from a third party with common authority over the property.” United
States v. Esparza, 162 F.3d 978, 980 (8th Cir. 1998) (citing Illinois v. Rodriguez, 497
U.S. 177, 181 (1990)).


       Hines argues that even if Ms. Brummet did consent, her consent was not
voluntary. “The voluntariness of a person’s consent to search is a question of fact
that we review under the clearly erroneous standard.” United States v. Carrate, 122
F.3d 666, 670 (8th Cir. 1997). The district court’s finding that Ms. Brummet’s
consent was voluntary was not clearly erroneous. The court weighed the hearsay
testimony of the defense counsel's investigator (who testified that Ms. Brummet had
told him shortly before her death that she felt that she had been coerced into signing
the consent form) against the direct testimony of the officers on the scene (that Ms.
Brummet had voluntarily signed the consent form, had not been coerced or
threatened, and that she never indicated that she did not understand her right to refuse
consent), and credited the police officers' recountings of the facts. “[W]hen a trial
judge’s finding is based on his decision to credit the testimony of one of two or more
witnesses, each of whom has told a coherent and facially plausible story that is not
                                          -5-
contradicted by extrinsic evidence, that finding, if not internally inconsistent, can
virtually never be clear error.” Welerford, 356 F.3d at 935-36 (internal quotations
omitted); see also United States v. Dupree, 202 F.3d 1046, 1049 (8th Cir. 2000).

       Hines also argues that the search exceeded the scope of the consent because the
consent form referred to an attached garage, while the residence had only an
unattached garage. We disagree. “The standard for measuring the scope of consent
under the Fourth Amendment is that of ‘objective’ reasonableness-what would the
typical reasonable person have understood by the exchange between the officer and
the individual?” United States v. Adams, 346 F.3d 1165, 1171 (8th Cir. 2003).
Under this standard, the fact that the garage was not, in fact, attached does not
invalidate the consent. The residence had only one garage, and it is thus objectively
reasonable to assume that the parties understood the consent form to refer to the only
garage on the property. Likewise, we reject Hines’s argument that Ms. Brummet did
not have the authority to consent to a search of the garage. The district court clearly
adopted the magistrate judge’s finding that Ms. Brummet had mutual use of and joint
access to the garage. We will not disturb the district court’s factual finding absent
clear error, United States v. Hyatt, 207 F.3d 1036, 1038 (8th Cir. 2000), and we find
no clear error here, especially as Hines admitted at the hearing that Ms. Brummet had
the right to enter the garage when and if she chose.

       Finally, we reject Hines’s argument that the district court erred in denying his
motion to suppress statements because the arresting officers failed to properly advise
him of his Miranda rights before questioning him. See United States v. Jones, 275
F.3d 673, 678-79 (8th Cir. 2001) (standard of review). At the suppression hearing,
the testimony indicated that Hines had read and initialed a written Miranda warning,
that the officers had also read the Miranda warning aloud, and that Hines did not say
anything to the officers to indicate that he did not understand his rights. The district
court determined that Hines was properly advised of his Miranda rights and that he
waived those rights intelligently and voluntarily. As it appears that “[t]here is nothing

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in the record before this Court to call into question the credibility determination made
by the district court,” Jones, 275 F.3d at 679, we affirm the district court's order
denying the motion to suppress Hines’s statements.

      For the reasons stated, we affirm the judgment of the district court.
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