                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-2468
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
     v.                                  * District Court for the
                                         * District of Nebraska.
Bryant Anthony Welerford,                *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: November 18, 2003

                                   Filed: January 30, 2004
                                    ___________

Before RILEY, BEAM, and SMITH, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

       Bryant Anthony Welerford (Welerford) was charged with possessing with
intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1) (2000),
and using and carrying a firearm during a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A)(i). Welerford moved to suppress the cocaine found in a search
of his car during the traffic stop. After the district court1 denied Welerford’s motion,


      1
       The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska, adopting the Report and Recommendation of the Honorable
David L. Piester, United States Magistrate Judge for the District of Nebraska.
Welerford entered a conditional guilty plea, reserving the right to appeal the denial
of his suppression motion. Welerford now exercises that right. We affirm.

I.     BACKGROUND
       While running stationary radar on Interstate 80 around 8:24 a.m., Nebraska
State Patrol Trooper Robert Pelster (Trooper Pelster) observed a speeding Pontiac.
Trooper Pelster, along with his passenger, South Dakota Highway Patrol Trooper
Jason Lurz (Trooper Lurz), began to follow the speeding Pontiac, which cut directly
in front of another vehicle. Trooper Pelster initiated a stop of the Pontiac for
speeding and making an improper pass. The stop was videotaped from Trooper
Pelster’s patrol car. Unfortunately, Trooper Pelster’s microphone only captured
intermittent statements. Trooper Pelster testified he did not know during the stop
that the microphone had malfunctioned. The malfunctioning microphone lies at the
heart of this appeal.

        During the initial phase of the stop, Trooper Pelster observed food wrappers,
trash and a pillow inside the Pontiac. Welerford was the Pontiac’s sole occupant.
Welerford produced a driver’s license, and a one-way rental agreement for the
Pontiac. Welerford told Trooper Pelster he was driving from Los Angeles, California
(a source state for drugs), to Chicago, Illinois, because his cousin was trying to sell
Welerford’s mother’s house. Trooper Pelster asked Welerford to step over to the
patrol car. In the patrol car, Welerford answered Trooper Pelster’s questions, and
Welerford contested the reasons for the stop. After issuing Welerford a warning
ticket, Trooper Pelster asked Welerford if he had ever been arrested, which Welerford
denied. A background check verified Welerford’s driver’s license, and also indicated
Welerford had a criminal history of narcotics sale and transportation, and concealed
weapon offenses.

      Welerford, Trooper Pelster, and Trooper Lurz then exited the patrol car.
Standing in front of the patrol car, Trooper Pelster asked Welerford if he would

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answer some questions. Welerford agreed, and in response to a question, denied
possessing illegal drugs. Trooper Pelster and Welerford disagree as to what happened
next. Even though the videotape visually captured what happened, Welerford and
Trooper Pelster disagree as to what was said.

       Welerford testified Trooper Pelster asked to search the vehicle, and Welerford
threw his hands up and said, “no.” Welerford says he then walked toward his vehicle
to leave, but Trooper Pelster followed. According to Welerford, Trooper Pelster
again asked to search the vehicle, motioning for Welerford to stand away from the
vehicle. Welerford claims, at that time, Trooper Pelster put his hand on Welerford’s
opened car door to prevent Welerford from leaving. Welerford claims he threw up
his hands and said, “hey, it seems like you’re going to do what you want to do
anyway.” Welerford testified he felt very intimidated by Trooper Pelster. Welerford
then walked back to the front of the patrol car and stood there while Trooper Pelster
searched the vehicle’s trunk.

      Trooper Pelster’s version of what transpired on the videotape differs from
Welerford’s version. Trooper Pelster testified he asked Welerford for consent to
search the vehicle, and Welerford said “go ahead” or “okay,” while gesturing with his
hands. As the two men walked toward the vehicle, Trooper Pelster again asked
Welerford for consent to search, and Welerford again gestured with his hands
indicating permission. Welerford opened the door to his vehicle, at which time
Trooper Pelster again asked whether Welerford consented to a search of the vehicle.
Trooper Pelster said Welerford again granted permission to search the vehicle, while
making the same hand gestures indicating permission. Trooper Pelster then asked
Welerford to stand in front of the patrol car, and Welerford complied.

       It is uncontested Welerford made no objections to the search while standing in
front of the patrol car. Trooper Pelster took the keys from the ignition and opened the



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trunk, where he discovered cocaine. Based on the cocaine discovery, Trooper Pelster
arrested Welerford.

      The magistrate judge found Welerford consented to a search of his vehicle, and
Welerford’s consent was voluntary. Recognizing the evidence conflicted, the
magistrate judge found the evidence “preponderates barely in favor of the
government.” The magistrate judge directly confronted the ambiguous, non-verbal
communication depicted on the videotape. Comparing Welerford’s and Trooper
Pelster’s versions of events with the actions captured on the videotape, the magistrate
judge found Trooper Pelster’s testimony “provided a credible explanation of the
statements [Welerford] made and how they coincided with [Welerford]’s arm
movements and gestures depicted on the videotape.” The magistrate judge also
recognized Welerford had a “significant motive” to testify he did not consent to the
search, while Trooper Pelster believed, at the time, every word and action were being
videotaped and recorded. Thus, the magistrate judge found “a reasonable officer
would have interpreted [Welerford]’s words and gestures as a valid consent to search
the vehicle.”

        The magistrate judge then confronted whether Welerford’s consent was
voluntary, and found it was. In finding Welerford voluntarily consented to the search,
the magistrate judge relied on the following findings: Welerford was a thirty-three
year old who was familiar with the criminal justice system, based on several felony
arrests, including drugs found in a previous vehicle search; Welerford speaks English,
is a high school graduate, and has one and one-half years of junior college education;
Welerford has “the intellectual ability or maturity to understand Trooper Pelster’s
questions [and] withhold his consent”; Welerford never objected to the search as it
was being conducted; the roadside environment where the consent took place was not
coercive or intimidating; Trooper Pelster’s conduct, “while at times intimidating,”
did not overbear Welerford’s “will in any respect”; in the patrol car, when the
conversations were clearly recorded, Welerford showed a willingness to challenge

                                         -4-
Trooper Pelster on the reasons for the stop. Finding Welerford consented to the
search and his consent was voluntary, the magistrate judge recommended the district
court deny Welerford’s motion to suppress. The district court conducted a de novo
review of the magistrate judge’s Report and Recommendation, adopted it, and denied
Welerford’s motion to suppress.

      Welerford appeals, asking this court to conduct an “exacting examination of
the videotape” in context with the testimony of Welerford, Trooper Pelster, and
Trooper Lurz.2 Welerford contends such an exercise should convince us Welerford
did not consent to the search of his vehicle, but only acquiesced to Trooper Pelster’s
show of authority. The government contends the district court’s determination
Welerford voluntarily consented to the search was not clearly erroneous.

II.    DISCUSSION
       A.    Standard of Review
       We review the district court’s conclusions of law de novo and its factual
findings for clear error. United States v. Tirado, 313 F.3d 437, 439 (8th Cir. 2002).
We review the district court’s finding that Welerford consented to the search for clear
error. Id. We will affirm the district court’s order denying Welerford’s 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




      2
        For the most part, Trooper Lurz’s testimony supports Trooper Pelster’s
testimony. Trooper Lurz, who was simply observing without actively participating
in the stop, the questioning, or the search, testified he heard Trooper Pelster twice ask
Welerford for consent to search the vehicle, and Welerford twice consented to the
search. Welerford contends Trooper Lurz’s testimony conflicts with Trooper
Pelster’s testimony to such a degree as to call into question both troopers’ testimony.
We have reviewed the suppression hearing transcript, as well as the videotape, and
disagree.

                                          -5-
a firm and definite conviction that a mistake has been made.” United States v.
Vanhorn, 296 F.3d 713, 717 (8th Cir. 2002), cert. denied, 537 U.S. 1167 (2003).

       B.     Consent to Search
       The Constitution guarantees the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV; see United States v. Ameling, 328 F.3d 443, 447 (8th Cir.),
cert. denied, 124 S. Ct. 422 (2003) (Fourth Amendment applies to the states through
the Fourteenth Amendment). “A consensual search does not violate the Fourth
Amendment if the consent was voluntarily given without coercion.” United States
v. White, 42 F.3d 457, 459 (8th Cir. 1994). The district court determined Welerford
consented to the search and the consent was voluntary.

       The first question we must ask is whether Welerford consented to a search of
his vehicle. “The precise question is not whether [Welerford] consented subjectively,
but whether his conduct would have caused a reasonable person to believe that he
consented.” United States v. Jones, 254 F.3d 692, 695 (8th Cir. 2001). Our review
of the videotape and the suppression hearing transcript does not lead to a strong
conviction that Welerford did–or did not–consent to the search. Welerford’s hand
gestures and demeanor, without reviewing any testimony, are inconclusive. Thus, we
must review the videotape in light of the testimony provided by Trooper Pelster,
Trooper Lurz, and Welerford. This review is limited, because a consent
determination must necessarily involve judging the credibility of witnesses, a task
generally left to the district court. The Supreme Court has stated that, “when 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
contradicted by extrinsic evidence, that finding, if not internally inconsistent, can
virtually never be clear error.” Anderson v. City of Bessemer City, 470 U.S. 564, 575
(1985); see United States v. Heath, 58 F.3d 1271, 1275 (8th Cir. 1995). Because the
district court’s decision to credit the testimony of the troopers was reasonable, and

                                         -6-
no extrinsic evidence contradicts the troopers’ testimony, we conclude the district
court’s determination that Welerford consented to the search was not clearly
erroneous.

      We next confront the district court’s determination that Welerford’s consent
was voluntary, reviewing whether this determination was clearly erroneous. Jones,
254 F.3d at 696. In deciding this question, we must consider the following factors:

      personal characteristics of the defendant, such as age, education,
      intelligence, sobriety, and experience with the law; and features of the
      context in which the consent was given, such as the length of detention
      or questioning, the substance of any discussion between the defendant
      and police preceding the consent, whether the defendant was free to
      leave or was subject to restraint, and whether the defendant’s
      contemporaneous reaction to the search was consistent with consent.

Id.; see United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990) (compiling
relevant characteristics). We earlier listed the findings on which the magistrate judge
and the district court relied in finding Welerford’s consent was voluntary. We see
little reason to expound on how the factors listed above support the district court’s
finding of voluntary consent. Suffice it to say, the district court faithfully followed
our precedent in determining Welerford’s consent was voluntary. Our review of the
videotape and the suppression hearing transcript convinces us the district court’s
determination that Welerford voluntarily consented to the search was not clearly
erroneous.

       This case boils down to our standard of review and the deference due the
district court’s factual findings. Cf. Anderson, 470 U.S. at 574 (“Where there are
two permissible views of the evidence, the [district court]’s choice between them
cannot be clearly erroneous.”). Because the district court’s suppression decision is
supported by substantial evidence, is not based on an erroneous view of the


                                         -7-
applicable law, and we are not left with a firm and definite conviction a mistake has
been made, we must affirm the denial of Welerford’s suppression motion.

III.   CONCLUSION
       The district court was confronted with a close issue on whether Welerford
voluntarily consented to the search of his vehicle. We are confronted with the same
close issue on appeal, but are guided by a deferential standard of review. Concluding
the district court’s determination that Welerford voluntarily consented to the search
of his vehicle was not clearly erroneous, we affirm the district court’s order denying
Welerford’s motion to suppress.
                         ______________________________




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