     Case: 11-41163     Document: 00511983130         Page: 1     Date Filed: 09/11/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 11, 2012
                                     No. 11-41163
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CHARLES WESLEY SNELLGROVE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-182-1


Before JONES, Chief Judge, and DAVIS and DENNIS, Circuit Judges.
PER CURIAM:*
        Charles Wesley Snellgrove appeals his conviction and sentence for being
a felon in possession of a firearm and possession of a firearm not registered in
the National Firearms Registration and Transfer Record. He was sentenced to
92 months of imprisonment on each count to be served concurrently and three
years of supervised release.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-41163   Document: 00511983130       Page: 2   Date Filed: 09/11/2012

                                  No. 11-41163

      He contends on appeal that the district court erred in denying his motion
to suppress evidence. He contends that the warrantless search of his residence
was illegal because he did not voluntarily consent to the search of the premises.
      This court “review[s] the denial of a motion to suppress in the light most
favorable to the prevailing party,” which in this case is the Government. United
States v. Garcia, 604 F.3d 186, 189-90 (5th Cir. 2010). The district court’s
factual findings, including its credibility choices, are reviewed for clear error,
and its legal conclusions are reviewed de novo. Id. at 190. A finding is clearly
erroneous “only when the reviewing court is left with the definite and firm
conviction that a mistake has been committed.”                 United States v.
Ornelas-Rodriguez, 12 F.3d 1339, 1347 (5th Cir. 1994) (internal citation and
quotation marks omitted). “Where a district court’s denial of a suppression
motion is based on live oral testimony, the clearly erroneous standard is
particularly strong because the judge had the opportunity to observe the
demeanor of the witnesses.” United States v. Santiago, 410 F.3d 193, 197 (5th
Cir. 2005).
      A search conducted pursuant to consent, as in the instant case, is a
“well-established exception to the Fourth Amendment’s warrant requirement.”
United States v. Mata, 517 F.3d 279, 290 (5th Cir. 2008). The consent exception
is satisfied if the consent to search was freely and voluntarily given. Id. The
voluntariness of consent is a question of fact that is reviewed for clear error.
United States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002).
      In determining whether a defendant has voluntarily consented to a search,
the court must look at the totality of the circumstances that surround the search.
This court has recognized six factors relevant to determining voluntariness:
      (1) the voluntariness of the defendant’s custodial status; (2) the
      presence of coercive police procedures; (3) the extent and level of the
      defendant’s cooperation with the police; (4) the defendant’s
      awareness of his right to refuse to consent; (5) the defendant’s



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                                  No. 11-41163

      education and intelligence; and (6) the defendant’s belief that no
      incriminating evidence will be found.
Mata, 517 F.3d at 290.
      Snellgrove’s argument that he did not voluntarily consent to the search of
his residence is based on the version of events as presented through Snellgrove’s
testimony and the testimony of Jacqueline O’Brien (O’Brien), and Amy Larrivee
(Larrivee). The district court, however, found the marshals’ testimony credible
and Snellgrove’s, O’Brien’s, and Larrivee’s testimony to be incredible. Snellgrove
fails to show that the district court erred in making its credibility
determinations. Snellgrove does not set forth and the record does not reveal any
evidence that establishes a definite and firm conviction that the district court’s
credibility determination was erroneous. See United States v. Garza, 118 F.3d
278, 283 (5th Cir. 1997). Accordingly, this court “will not second guess the
district court’s factual findings as to the credibility of witnesses.” Id.
      Given the version of events the district court found credible, the district
court did not clearly err in finding that the marshals obtained voluntary consent
to search Snellgrove’s residence. The facts establish that (1) Snellgrove and
O’Brien were not in custody at the time they consented to the search that
resulted in the discovery of the shotgun, (2) Snellgrove’s and O’Brien’s consent
was not the result of coercive procedures, (3) Snellgrove and O’Brien remained
cooperative throughout the search, (4) Snellgrove and O’Brien volunteered for
the officers to search the residence, (5) with Snellgrove’s prior experience with
the criminal justice system and O’Brien’s education, both should have known
that absent consent, a warrant would be needed to search the residence, and (6)
Snellgrove and O’Brien did not believe anything incriminating would be found.
Accordingly, under the totality of the circumstances, the district court’s finding
of voluntary consent is not clearly erroneous. See Mata, 517 F.3d at 290; Garza,
118 F.3d at 283.



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                                   No. 11-41163

      As for Snellgrove’s assertion that the marshals’ presence and authority
were coercive by nature, the credible facts show that his claim is unavailing. As
for Snellgrove’s argument that the officers exceeded the scope of the protective
sweep, the officers were not making a protective sweep. “A ‘protective sweep’ is
a quick and limited search of premises, incident to an arrest and conducted to
protect the safety of police officers or others. It is narrowly confined to a cursory
visual inspection of those places in which a person might be hiding.” Maryland
v. Buie, 494 U.S. 325, 327 (1990). As the officers informed Snellgrove and
O’Brien, the officers were searching for Frost, and Snellgrove and O’Brien
volunteered for the officers to search the residence to see that Frost was not in
the residence. There is no evidence in the record that Snellgrove or O’Brien
placed a limitation on the areas in the residence the officers could search.
      Accordingly, the search was constitutionally permissible, and the district
court did not err in denying Snellgrove’s motion to suppress.
      AFFIRMED.




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