                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0499n.06
                              Filed: June 10, 2005

                                             No. 04-5896

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
        Plaintiff-Appellee,                        )
                                                   )
v.                                                 )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
DARRELL CRAIG CLARK,                               )    EASTERN DISTRICT OF KENTUCKY
                                                   )
        Defendant-Appellant.                       )




        Before: SILER and SUTTON, Circuit Judges; O’MEARA, District Judge.*


        SUTTON, Circuit Judge. In pleading guilty to one count of possession of an unregistered

firearm, 26 U.S.C. § 5861(d), and two counts of possession of a firearm after being convicted of a

misdemeanor crime of violence, 18 U.S.C. § 922(g)(9), Darrell Craig Clark reserved the right to

appeal the denial of his motion to suppress evidence discovered when officers searched his home.

While Clark has properly retained the right to bring this Fourth Amendment challenge, it remains

a difficult hand to play. Clark must establish that the district court committed clear error in crediting

the testimony of three officers who all stated that Clark and his mother explicitly consented to the

search. As we find no clear error in this credibility determination, we affirm.



        *
       The Honorable John Corbett O’Meara, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 04-5896
United States v. Clark

                                                  I.


       The relevant facts were developed at Clark’s detention hearing (on March 11, 2004) and at

his motion-to-suppress hearing (on March 25, 2004). Acting on an informant’s tip, Officers Steven

Isaacs and Richard Muse, both of the Kentucky Department of Fish and Wildlife, sought to question

Clark about his involvement in a deer poaching incident. They encountered Clark at property owned

by his mother, Irene Clark, that contained two residences, one of which was occupied by Clark.

Upon driving their marked trucks onto the property, Clark did not greet them warmly. He drove his

truck toward Muse’s vehicle, eventually “scuffled” with Muse, JA 81, 85, then ran into the house,

all the while refusing commands to stop. After he emerged from the house, Clark told the officers

to leave the property. When that did not work, Clark tried to get into his truck to leave the property

himself, at which point the officers handcuffed him. Officers later found a loaded nine-millimeter

handgun on the passenger’s seat of Clark’s truck.


       Within ten to fifteen minutes after the officers handcuffed Clark, Clark’s mother, Irene,

arrived at the scene, as did additional officers responding to Isaacs’ request for assistance. The

officers moved Clark to the back of Kentucky State Trooper Ryan Loudermilk’s cruiser. Isaacs told

Clark’s mother that they were looking for a weapon that had been used in a poaching incident. She

responded that she owned the property and that she “didn’t have a problem” with the officers

searching the home. JA 132–33, 152. The officers then asked her to determine whether Clark

himself would permit them to search the home. In response, according to Isaacs, Clark said

something to the effect of “I don’t have anything to hide—yeah, go ahead.” JA 134, 152–53.

                                                -2-
No. 04-5896
United States v. Clark

       Another responding officer, Sergeant Joe Rush of the Rockcastle County Sheriff’s

Department, also testified about the Clarks’ consent to search. He testified that Clark’s mother said

that she “didn’t have a problem” with the officers searching the house. JA 160. And when Clark

was asked if the officers could search the house, Rush heard Clark say “I don’t have nothing to

hide.” Id.


       Special Agent Thomas Chittum of the Bureau of Alcohol, Tobacco, Firearms and Explosives,

who was not at the scene, testified that Isaacs and Muse “explained the whole scenario to [him],

including how consent was granted,” JA 166. Chittum stated that he asked Loudermilk whether

Clark gave consent, and Loudermilk responded that “he had heard Mr. Clark also grant consent to

search the residence.” Id.   See Fed. R. Evid. 104(a); United States v. Killebrew, 594 F.2d 1103,

1105 (6th Cir. 1979) (holding hearsay evidence admissible in a suppression hearing).


       Upon searching the house, the officers found an H&K 91 rifle that fit the caliber of shells

found at the scene of the poaching. They also found a “sawed-off” shotgun, a .22 caliber rifle with

an obliterated serial number and a derringer pistol. In addition to the guns, the officers found

marijuana in the kitchen. When the officers brought the marijuana out of the kitchen, Clark’s mother

asked the officers to leave, at which point they left “immediately.” JA 137.


       The officers later determined that Clark had a prior misdemeanor conviction for domestic

violence and accordingly obtained a warrant to arrest him. When Clark came to the Kentucky




                                                -3-
No. 04-5896
United States v. Clark

Department of Fish And Wildlife office to retrieve his firearms, officers arrested him. They also

found three additional firearms in the truck that he had driven to the office.


       At the motion-to-suppress hearing, Clark’s mother testified to a different sequence of events.

She said that she never gave the officers consent to search the house. And when she told Clark that

the officers wanted to search the house, she testified that Clark “screamed—said they are not to go

in my house, and there’s no way that nobody didn’t hear him. . . . [H]e said, would you tell them

SOB[s] to not go in my house. And I attempted to lock my door. . . . They was right behind me and

just went right in my house, and I couldn’t stop them.” JA 172.


       The magistrate concluded that the officers’ testimony was “fully credible,” JA 60, noting

that the testimony of Isaacs and Rush, who were at the scene, was “straightforward, detailed, and

consistent in all major respects.” Id. The magistrate also noted that Chittum “testified that [he] had

inquired about the incident and had personally spoken with at least three of the officers who were

present at the scene. He testified that all three officers had indicated to him that the defendant and

his mother had both verbally consented to a search of the residence.” Id. The magistrate found Mrs.

Clark’s testimony “highly improbable,” JA 61, noted her motive to help her son and found her

testimony “unclear or confused on many facts.” Id. In addition, the magistrate concluded that “it

reasonably appeared to the officers that [Mrs. Clark] had apparent authority to allow them to enter

the [residence],” JA 58–59, and “[t]here is no question that the defendant, as a current resident of

the [house], had authority to give consent to search.” JA 59.




                                                -4-
No. 04-5896
United States v. Clark

        On April 15, 2004, the district court adopted the magistrate’s report and recommendation,

giving “significant weight” to the magistrate’s credibility determinations because the magistrate had

“listened to the testimony presented at the hearing.” JA 68. On July 13, 2004, Clark pleaded guilty

to the charges against him, though he reserved the right to challenge the district court’s suppression

ruling. The district court sentenced him to 87 months of imprisonment and three years of supervised

release.


                                                   II.


        In examining a district court’s ruling on a motion to suppress, we review its legal

determinations de novo and its factual determinations for clear error. United States v. Galloway, 316

F.3d 624, 628 (6th Cir. 2003). Where the district court has denied the motion to suppress, “the

appellate court must consider the evidence in the light most favorable to the government.” United

States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc). “[F]indings of fact anchored in

credibility assessment[s] are generally not subject to reversal upon appellate review,” United States

v. Ivy, 165 F.3d 397, 401 (6th Cir. 1998), because “when there are two permissible views of the

evidence, the fact finder’s choice between them cannot be clearly erroneous,” id. at 401–02.

“Nonetheless, the court’s discretion is not unlimited.” United States v. Haynes, 301 F.3d 669,

679–80 (6th Cir. 2002). “A trial court’s decision to credit a witness’ testimony may be held

erroneous on review if . . . the witness’ story . . . itself is so internally inconsistent or implausible

on its face that a reasonable factfinder would not credit it.” Id. at 679–80 (quotations and brackets

omitted).

                                                  -5-
No. 04-5896
United States v. Clark

        On appeal, Clark does not challenge any of the district court’s legal determinations. He

instead brings a rifle-shot challenge to the court’s credibility determination. “The [d]istrict [c]ourt,”

he argues, “clearly erred in determining that the testimony of several police officers was more

credible than that of . . . Clark’s mother on the issue of whether Clark and/or his mother did or did

not give consent for a search of Clark’s residence.” Clark Br. at 12. We disagree.


        The magistrate, whose credibility determination the district court accepted, heard consistent

testimony from two officers (Isaacs and Rush) who each heard Clark and his mother give consent

to search the house. The magistrate also heard testimony from a federal agent who said that three

officers (Isaacs, Muse and Loudermilk) told him that consent was given to search the house. The

only conflicting testimony regarding the consent statements came from Clark’s mother, who had a

plausible reason for fabricating a different sequence of events in order to protect her son.


        In an attempt to establish that the officers’ testimony could not reasonably be credited, Clark

points to the following alleged inconsistencies in the testimony:


        * While Isaacs stated that he received a tip from a neighboring landowner, he could
        not remember the landowner’s name on cross examination, then later said that the
        landowner’s tenant actually gave him the tip.
        * At the detention hearing, Isaacs testified that he first went to Clark’s residence to
        avoid driving “to the other side of the county” to talk to another individual
        implicated by the tip, but on cross examination at the suppression hearing he stated
        that he tried to locate the other individual before talking to Clark.
        * At the detention hearing, Isaacs testified that he did not believe anyone was home
        at the first residence but that someone was performing interior work on the second
        residence. But at the suppression hearing, he said that he did not believe anyone was



                                                  -6-
No. 04-5896
United States v. Clark

       living at the first residence, and he did not think there were any lights on at the
       second residence.
       * Isaacs stated at the detention hearing that he arrested Clark for assaulting Muse, but
       the citation lists Muse as the arresting officer and Isaacs as a witness.
       * While Isaacs stated in the detention hearing that the assault charge was based on
       Muse’s allegation that Clark pushed him, the citation does not include any
       allegations of pushing but instead notes that Clark attempted to get back in his truck
       so that he could obtain his loaded nine-millimeter handgun.
       * At the suppression hearing, Isaacs first testified that he did not ask Clark to sign
       a consent-to-search form because he “didn’t think to do it,” JA 155, but then added
       that he had asked for consent to search from suspects in the past and that he did not
       know whether Loudermilk had any consent-to-search forms with him.
       * Isaacs testified at the detention hearing that he did not recognize Clark’s mother
       in the courtroom, explaining that it was dark at the scene and that he interacted with
       her only for a couple of minutes.
       * Isaacs repeatedly testified that the H&K 91 rifle found in Clark’s residence
       matched the 7.62-millimeter empty shell casings found at the deer poaching scene,
       but the caliber of the H&K 91 rifle is .308 inches.
       * Isaacs’ testimony conflicted with Rush’s testimony as to which officer was told by
       Clark’s mother to leave the house and which officer subsequently told the other
       officers to leave the house.
       * Chittum’s discussions with the other officers “has the appearance of a wonderful
       opportunity for all of the officers to make sure they all testified the same way.”
       Clark Br. at 21.
       Some of this, it may be true, establishes inconsistencies in Isaacs’ testimony. But the

inconsistencies relate to collateral facts; they do not undermine his consistently material

testimony—during both the detention and suppression hearings—that Clark and his mother gave

consent to search Clark’s house. The only alleged inconsistency relating to the consent statements

concerns Clark’s claim that Isaacs changed his story when asked why he did not ask Clark to sign

a consent-to-search form. But no change of testimony occurred. Isaacs first stated that he “didn’t

think to do it,” JA 155, then answered that he could not “speak for Officer Loudermilk” as to

                                                -7-
No. 04-5896
United States v. Clark

whether Loudermilk had any consent forms with him. But these two statements establish nothing

more than the fact that Isaacs, perhaps unwisely, simply “didn’t think to” ask Clark to sign a

consent-to-search form. One of the other allegations about Isaacs’ testimony, it bears adding, does

not even establish an inconsistency, material or not. As the government points out in its brief, 7.62

millimeters is essentially the equivalent of .308 inches, and many people use both calibers

interchangeably. United States Br. at 9. The magistrate in the end did not commit clear error in

choosing to credit Isaacs’ testimony as to the consent statements, and accordingly neither did the

district court.


        Even if we were to conclude that Isaacs’ testimony could not reasonably be credited,

however, we still would be left with the unchallenged testimony of two other officers: Rush, who

consistently stated that he heard both statements, and Chittum, who consistently stated that Isaacs,

Muse and Loudermilk all told him that they personally heard the Clarks give their consent to the

search. The only attempt to discredit Rush is the claim that his testimony and Isaacs’ differed over

which officer was told by Clark’s mother to leave the house and over which officer in turn told the

other officers to leave the house. Not only does this claim fail to establish an internal inconsistency

in Rush’s testimony but the alleged inconsistency is immaterial to boot. The salient point is that

Clark’s mother eventually told the officers to leave the house, and they in fact did so. Nor can we

accept Clark’s argument that the consistency of the three officers’ testimony is itself a liability

because it proves a conspiracy to lie about the encounter, as opposed to proving that the testimony

was more credible than the testimony of Clark’s mother. That of course could always be said of



                                                 -8-
No. 04-5896
United States v. Clark

consistent police officer testimony, and accordingly it generally will be the case that the first-hand

observer of that testimony rather than an appellate court reviewing a cold transcript of that testimony

is best positioned to credit it or call it into question. In the final analysis, because the testimony of

the three officers could reasonably be credited over the testimony of Clark’s mother, the district

court did not commit clear error in adopting the magistrate’s report and recommendation.


        In a supplemental letter, Clark challenges his sentence in light of United States v. Booker,

125 S. Ct. 738 (2005). Recognizing that the plea agreement waived his right to appeal his sentence

and recognizing that United States v. Bradley, 400 F.3d 459, 463–65 (6th Cir. 2005), prohibits

bringing appeals in the face of such a waiver, Clark’s counsel correctly withdrew this claim at oral

argument.


                                                  III.


        For these reasons, we affirm.




                                                  -9-
