UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 95-5883

CORTEZ DORIAN DOMINIE SUTTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Richard C. Erwin, Senior District Judge.
(CR-95-137)

Submitted: October 15, 1996

Decided: November 18, 1996

Before MURNAGHAN, HAMILTON, and WILLIAMS,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William E. Martin, Federal Public Defender, Gregory Davis, Assis-
tant Federal Public Defender, Greensboro, North Carolina, for Appel-
lant. Walter C. Holton, Jr., United States Attorney, Michael F. Joseph,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Cortez Dorian Dominie Sutton entered a conditional plea of guilty
to possession with intent to distribute cocaine base, reserving the right
to appeal from the district court's denial of his motion to suppress evi-
dence. After sentencing, Sutton timely noted his appeal. We now
affirm.

During the suppression hearing, Detective Piner of the Guilford
County Sheriff's Department testified that, while working as a mem-
ber of a drug interdiction team at the Amtrak Station in Greensboro,
North Carolina, he approached Sutton and identified himself to Sutton
as a police officer. After Sutton agreed to talk with Piner, Piner asked
whether Sutton was carrying any illegal drugs or weapons. Sutton
stated that he was not. Piner then requested Sutton's permission to
search his bag.

Piner testified that Sutton first asked whether Piner had a search
warrant, and, after Piner explained that he was asking for consent,
Sutton said, "Go ahead." Piner then patted down Sutton, and Agent
Kowalski searched Sutton's bag and discovered what later proved to
be cocaine base. Kowalski also testified that Sutton consented to the
search.

Sutton testified at the suppression hearing that he never gave his
consent. Rather, when asked for permission to search, he inquired,
"What if I say no." Piner then asked other questions, and Kowalski
proceeded to search Sutton's bag. However, Sutton did not object to
Kowalski's search of his bag.

The district court denied the motion to suppress, finding that con-
sent was clear and that Sutton's question was not a refusal of consent
to search. Sutton appeals from this ruling.

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Whether consent was freely and voluntarily given is determined
after considering the totality of the circumstances surrounding the
consent. United States v. Mendenhall, 446 U.S. 544, 557 (1980). In
viewing the totality of the circumstances, there does not need to be
evidence "that the defendant knew of his right to refuse consent to
prove that the consent was voluntary." United States v. Lattimore, 87
F.3d 647, 650 (4th Cir. 1996) (en banc). Because"the voluntariness
of consent to search is a factual question, we must affirm the determi-
nation of the district court unless its finding is clearly erroneous." Id.

Sutton contends that his consent was not voluntary because he
inquired about what would happen if he refused to consent. As we
have previously noted, the officers' failure to explain that he could
refuse the search does not negate Sutton's consent. See United States
v. Wilson, 895 F.2d 168, 172 (4th Cir. 1990) (noting that "proof of
knowledge of a right to refuse [is not] the sine qua non of an effective
consent to search"); see also Schneckloth v. Bustamonte, 412 U.S.
218, 248-49 (1973). We find no clear error in the district court's find-
ing that Sutton's inquiry concerning what happens if he withholds
consent did not amount to a refusal of consent.

Further, in light of the conflicting testimony concerning whether
consent was given, we defer to the district court's determination that
the officers' testimony (that Sutton said, "Go ahead") was more credi-
ble. See United States v. Taylor, 90 F.3d 903, 908 (4th Cir. 1996)
(deferring to a district court's factual determination unless clearly
erroneous). Also telling is Sutton's testimony that, although Sutton
saw Kowalski searching his bag, he did and said nothing to stop
Kowalski's search. Based on the totality of the circumstances, we find
that the district court's determination that Sutton consented to the
search was not clearly erroneous. Mendenhall, 446 U.S. at 557-58.

We therefore affirm the district court's order denying Sutton's
motion to suppress. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.

AFFIRMED

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