                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-3941
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

             Louis A. Hardison, also known as Mohammed L. Carrol

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                    Appeal from United States District Court
                   for the Western District of Missouri - Joplin
                                 ____________

                             Submitted: March 9, 2017
                               Filed: June 14, 2017
                                 ____________

Before RILEY,1 Chief Judge, GRUENDER, Circuit Judge, and SCHREIER,2
District Judge.
                              ____________

RILEY, Chief Judge.


      1
       The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
      2
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota, sitting by designation.
       Louis Hardison appeals his conviction for being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), arguing the district
court3 erred in combining an evidentiary hearing on his motion to suppress with his
bench trial and in not excluding all evidence obtained as a result of a search of his
home. We affirm, finding (1) no error in the procedure the district court used in this
case, and (2) Hardison voluntarily consented to the search. See 28 U.S.C. § 1291
(appellate jurisdiction).

I.      BACKGROUND
        In the early morning hours of November 27, 2013, Dushawnne Hoyt reported
a domestic disturbance involving a firearm. Officers from the Neosho Police
Department (Missouri) responded to the call. Hoyt told officers Hardison put a knife
to her throat, threatened to kill her, and then held a gun to her head, again threatening
to kill her. Officer Trent Gold approached Hardison, who was then standing inside
his residence at the front door, to ask Hardison if they could speak inside the home.
Hardison replied, “sure.”

       Another officer, Sergeant Brad Fienen, arrived on the scene later while Officer
Gold was inside the home with Hardison. Sergeant Fienen entered the residence and
asked Hardison if he had a gun inside the home. Hardison pointed to a green duffel
bag and told Sergeant Fienen, “The only gun I have is in there.” Sergeant Fienen
secured the gun from the bag and, because he observed it did not match Hoyt’s
description of the gun Hardison threatened her with, asked Hardison if he had another
firearm. After hesitating, Hardison told the officers there was another gun, led the
officers to the bedroom, and said while pointing in the room, “In the ductwork,
there’s a gun down there. You can go get it.” Sergeant Fienen removed the grate to
the air conditioning and retrieved a second firearm, which did match Hoyt’s


      3
      The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri.

                                          -2-
description. Hardison told the officers he knew he was not supposed to be in
possession of a firearm as a felon and he knew he was going to prison.

       The grand jury returned a one-count indictment charging Hardison with being
a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). The district court issued a scheduling and trial order on December 19,
2014, requiring the parties to file all pretrial motions on or before twenty days from
that date. Hardison’s bench trial was scheduled to begin June 15, 2015. On June 12,
2015, the Friday before Hardison’s Monday trial date and well-past the court’s
deadline for filing pretrial motions, Hardison filed a motion to suppress all evidence
obtained “as a result of the November 27, 2013, detention, seizure, arrest, and search
of [Hardison].” Hardison “request[ed] an evidentiary hearing be granted or that the
matter be permitted to be taken up with his bench trial.” (Emphasis added).

         Hardison’s bench trial commenced on schedule. Citing concerns for efficiency
and fairness “given the timing,” the district court “decided the best way to take
up . . . the propriety of the evidence is to simply receive evidence on the suppression
motion at the same time [it] hear[s] the evidence related to the trial and then the Court
will not consider that evidence that it believes should be suppressed if the Court
reaches that conclusion.” Neither party objected to proceeding in this manner, a
manner Hardison initially had proposed, and counsel for both parties explicitly agreed
to the procedure.

       The government introduced several exhibits of evidence obtained as a result
of the search of Hardison’s home, and the district court noted it would “assume that
[Hardison] ha[s] an objection to the exhibits and the testimony of what happened after
[the officer] goes in the home,” and would not “make any final ruling on the
admissibility of that evidence” until after the trial was completed. Hardison was the
only witness for the defense. Neither Hardison nor his attorney clarified that
Hardison intended his testimony to be limited to the issue of suppression. Hardison

                                          -3-
testified he did not consent to a search and he had sole dominion and control over the
residence. Hardison’s attorney objected to only one question—“Isn’t it true that the
officer found weapons and firearms at your home on November 27, 2013?”4—and the
district court accepted Hardison’s answer pending its decision as to the suppression
motion.

       Two weeks after the trial, the district court issued an order denying Hardison’s
motion to suppress, finding Hardison voluntarily consented to the search. In a
separate order, the district court found Hardison knowingly possessed firearms, as
evidenced by Hardison telling “the officers where in the residence the weapons could
be found. The firearms were found in [Hardison’s] home, he testified that he placed
them there, and he testified that he resides alone and exercises complete dominion
and control over his residence.” The district court found Hardison guilty of being a
felon in possession of a firearm. Hardison filed numerous pro se motions, including
a pro se motion for a new trial, all of which the district court denied. Hardison filed
a timely notice of appeal “from the judgement [sic] and sentence” of the district
court.

II.     DISCUSSION
        A.    Combined Evidentiary Hearing and Bench Trial
        Hardison asserts the combined evidentiary hearing and bench trial and the use
of his suppression testimony in assessing his guilt amount to constitutional, structural,
and plain error. Hardison first notes the district court erred in “failing to rule on
defendant[’s] pretrial Motion to Suppress before trial.” It is within the district court’s
discretion not to hold an evidentiary hearing at all, see United States v. Losing, 539
F.2d 1174, 1177 (8th Cir. 1976), and, while “[t]he court must decide every pretrial


      4
       This is a negative and confusing question for the witness and fact finder and
also invades the province of the fact finder as to what is true. A proper question
would be: “Did the officer find firearms at your home on November 27, 2013?”

                                           -4-
motion before trial unless it finds good cause to defer a ruling,” Fed. R. Crim. P.
12(d), there is certainly good cause to defer a ruling where the defendant files his
motion the Friday before his Monday bench trial. See United States v. Dittus, 453
F.2d 1335, 1336 (3d Cir. 1972) (finding good cause to disallow a suppression hearing
where an evidentiary hearing would have delayed the start of trial). Under the
circumstances of this case, the short time period before trial and the concern for
efficiency in presenting evidence support the district court’s decision to combine the
evidentiary hearing with Hardison’s bench trial, and to defer ruling on the motion to
suppress until all evidence had been presented.5

       We likewise find no structural error “undermining the fairness of a criminal
proceeding as a whole,” United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004),
as Hardison consented to, and indeed suggested, the specific procedure used by the
district court. This is not one of the “very limited class of cases” amounting to
structural error requiring automatic reversal. Johnson v. United States, 520 U.S. 461,
468 (1997); see also Neder v. United States, 527 U.S. 1, 8 (1999) (listing examples
of structural error, including “complete denial of counsel,” “racial discrimination in
selection of grand jury,” and “denial of public trial”).

       Hardison claims a constitutional error occurred when the district court
improperly considered his suppression testimony for the purpose of determining his
guilt. “[W]hen a defendant testifies in support of a motion to suppress evidence on

      5
        We note it would have been within the district court’s discretion to refuse to
consider Hardison’s motion to suppress because the motion was untimely, having
filed the motion five months after the deadline for filing pretrial motions. See Fed.
R. Crim. P. 12(c)(3) (“If a party does not meet the deadline for making a [pretrial]
motion, the motion is untimely. But a court may consider the defense, objection, or
request if the party shows good cause.”); see also United States v. Trancheff, 633
F.3d 696, 698 (8th Cir. 2011) (“The desire to suppress incriminating evidence and the
retention of new counsel are not by themselves sufficient to establish good cause to
justify relief from a waiver of a defense, objection, or request under Rule 12.”).

                                         -5-
Fourth Amendment grounds, his testimony may not thereafter be admitted against him
at trial on the issue of guilt unless he makes no objection.” Simmons v. United States,
390 U.S. 377, 394 (1968). Hardison expressly requested his motion to suppress “be
permitted to be taken up with his bench trial,” and Hardison’s attorney affirmatively
consented to the procedure on the day of trial. The district court did assume Hardison
had “an objection to the exhibits and the testimony of what happened after he goes
in the home” due to Hardison’s motion to suppress such evidence, and Hardison’s
attorney made a “limited objection” to the admissibility of Hardison’s answer to one
government question during cross-examination, because Hardison’s answer “may get
into evidence that would be suppressible.” It is not clear from the record whether the
“limited” objection was intended to limit Hardison’s testimony to the motion to
suppress, or whether the objection was merely preserving Hardison’s objection to the
use of any evidence obtained as a result of the search.

       Hardison contends this objection was an “attempt[] to limit the testimony for
the purpose of the suppression motion only,” but acknowledged at oral argument it
was not clear if this objection was based on the potential Simmons violation.
Hardison never clearly stated he was objecting to the potential use of Hardison’s
testimony to evaluate his guilt. Cf. United States v. Williams, 994 F.2d 1287, 1294
(8th Cir. 1993) (“‘Preserving an issue is a matter of . . . clearly stating the grounds for
the objection, so that the trial court has an opportunity to prevent or correct the error
in the first instance.’” (quoting United States v. Thornburg, 844 F.2d 573, 575 (8th
Cir. 1988))). At no point, either before or during Hardison’s testimony, did Hardison
or his attorney explicitly request Hardison’s testimony be limited only to the motion
to suppress.6 Simmons expressly allows a fact finder to consider testimony

      6
        Hardison asserted at oral argument the district court was obligated to warn him
the court would use his testimony to determine the merits of the case and, without
such a warning, any waiver was not fully knowing and voluntary. Hardison did not
fully raise and address this argument in his opening brief and was unable at oral
argument to cite to any support for the proposition Simmons requires a knowing

                                           -6-
introduced on a motion to suppress also during the merits of the case if the defendant
fails to object to such use. Simmons, 390 U.S. at 394; cf. United States v. Polk, 574
F.2d 964, 965 (8th Cir. 1978) (reasoning the defendant’s testimony at the suppression
hearing could be considered at the subsequent bench trial where “counsel had agreed
that evidence presented at the suppression hearing could be considered by the trial
court in deciding the merits”).

       Hardison further argues, even in the absence of any structural or constitutional
error, the district court’s use of his testimony to determine his guilt was plain error.
See United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc). Because
there was sufficient evidence to find Hardison guilty of the charged offense without
considering his testimony, there was no plain error “‘seriously affect[ing] the fairness,
integrity or public reputation of judicial proceedings.’” United States v. Olano, 507
U.S. 725, 732 (1993) (quoting United States v. Young, 470 U.S. 1, 15 (1985)).

      B.    Denial of Motion to Suppress and Motion for a New Trial
      Hardison next contends the evidence obtained during the search of his home
should have been suppressed because the officers did not have a warrant and
Hardison did not voluntarily consent to the search.

       Hardison claims his consent was limited to allowing Officer Gold inside his
home for a conversation, and the officers exceeded the scope of his consent when
they searched. Consent does not need to be explicit to be valid. See United States
v. Lakoskey, 462 F.3d 965, 973 (8th Cir. 2006). “The precise question is not whether
[the defendant] 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).



waiver of constitutional rights, and we decline to address this issue today.

                                          -7-
       Hardison replied “sure” to the officer’s request to speak with him inside the
home. When inside and asked if “there was a gun in the residence,” Hardison pointed
to a green duffel bag in the hallway and said, “The only gun I have is in there.”
Hardison did not object to a subsequent search of that bag. When the officer asked
about another gun, explaining the gun in the duffel bag was not the firearm Hoyt had
described, Hardison directed the officers to where he kept a second gun in his
bedroom air conditioning ductwork. Hardison told the officers they could “go get it.”
Even if Hardison never expressly consented to the search of his bag that uncovered
the first firearm, he was “present and fail[ed] to object to the continuation of a
search,” which is “circumstantial evidence [that] provide[s] proof that the search
conducted was within the scope of consent.” United States v. Beckmann, 786 F.3d
672, 678 (8th Cir. 2015). Hardison’s conduct would cause a reasonable person to
believe he consented to the search.

        This consent was also voluntary under the totality of the circumstances. See
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). Hardison notes the officers
never advised him he had the right to refuse consent, yet, “[w]hile knowledge of the
right to refuse consent is one factor to be taken into account, the government need not
establish such knowledge as the sine qua non of an effective consent.” Id. And
contrary to Hardison’s suggestion, the fact multiple officers were present when
Hardison consented does not, by itself, demonstrate Hardison was unduly coerced to
consent. See United States v. Drayton, 536 U.S. 194, 205 (2002). Officer Gold
testified he did not yell, draw his weapon, or otherwise threaten or intimidate
Hardison in any way, and Officer Gold described Hardison as polite and not agitated
during their conversation. The police report does note Hardison exhibited signs of
being intoxicated, but “the evidence does not suggest that he was so intoxicated that
he was not ‘competent to understand the nature of his acts.’” United States v. Willie,
462 F.3d 892, 896 (8th Cir. 2006) (quoting United States v. Rambo, 789 F.2d 1289,
1297 (8th Cir. 1986)). The remaining characteristics of Hardison and the
situation—Hardison’s age of 52 years, his prior experience with law enforcement,

                                         -8-
the fact Hardison was not restrained when he gave consent, and his intelligence
demonstrated by multiple pro se motions arguing Fourth Amendment issues—show
the district court did not clearly err in finding Hardison voluntarily consented.
See United States v. Garcia, 613 F.3d 749, 753 (8th Cir. 2010) (“Whether consent is
voluntary is a question of fact, reviewed for clear error.”). The district court properly
denied Hardison’s motion to suppress the evidence and did not abuse its discretion
in denying his motion for a new trial.7

III.   CONCLUSION
       Because the combined evidentiary suppression hearing and bench trial, under
the circumstances, was not error, structural or otherwise, and Hardison voluntarily
consented to the search of his home, we affirm.
                       ______________________________




       7
        On appeal, Hardison appears to argue the officers needed a warrant to enter
his house because, at the time of the search, they already had probable cause to arrest
Hardison. Hardison did not raise this argument in his suppression motion or motion
for a new trial, but, even if he had, the district court still would not have abused its
discretion in denying the motion because the officers were not entering Hardison’s
home to make an arrest and, as discussed above, Hardison voluntarily consented to
the search. See Payton v. New York, 445 U.S. 573, 576 (1980) (“[T]he Fourth
Amendment to the United States Constitution . . . prohibits the police from making
a warrantless and nonconsensual entry into a suspect’s home in order to make a
routine felony arrest.” (Emphasis added)).

                                          -9-
