UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4436

JOSE SANTIAGO CHAVEZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, Sr., District Judge.
(CR-97-234)

Submitted: December 15, 1998

Decided: January 6, 1999

Before HAMILTON and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis C. Allen III, Federal Public Defender, Gregory Davis, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Sandra J. Hairston,
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Unpublished opinions are not binding precedent in this circuit.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:

Jose Chavez appeals the district court's denial of his motion to sup-
press evidence seized during a consent search of his recreational vehi-
cle. Because we cannot conclude that the district court clearly erred
in finding that Chavez's consent to search was freely and voluntarily
given, we affirm.

I.

Chavez entered a conditional plea of guilty, allowing for an appeal
of the denial of his suppression motion, to possessing with the intent
to distribute more than 100 kilograms of marijuana. Around 12:15 in
the morning, Deputy Hasty of the Randolph County Sheriff's Depart-
ment spotted Chavez walking along a state road in close proximity to
a recreational vehicle that appeared to be broken down on the side of
the road. Chavez told Deputy Hasty that his R.V. was out of gas.
Hasty offered Chavez a ride to the gas station which Chavez accepted.
After obtaining some gasoline, they returned to the R.V. On their
return trip, Hasty asked Chavez, "Would you mind if I searched your
vehicle for drugs?" Hasty testified that Chavez said "no, sir" and
denied being involved with drugs. Hasty then asked him, "so you
don't mind if I search your vehicle?" to which Hasty testified Chavez
responded, "no, sir, I don't mind." After two back-up officers arrived,
Hasty once again asked Chavez "if he didn't mind if [he] searched his
vehicle." Chavez said "no, I don't mind." At no time was Chavez
restrained and none of the officers drew their weapons.

Chavez testified at the suppression hearing that he told Hasty that
"it was up to him," when asked for permission to search. Chavez now
challenges the denial of the suppression motion and asserts that he did
not voluntarily consent because his answer to Hasty"was not
unequivocal and specific and was not sufficient to constitute a consent
to the search of his vehicle."

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The district court concluded that Chavez was asked twice for per-
mission to search his vehicle and granted permission both times. The
court also made factual findings that Chavez graduated from high
school in Texas and that while Spanish was spoken in his home, Cha-
vez engaged in commercial and educational activities that made the
meaning of the English language clear to him. It therefore denied the
motion to suppress.

II.

When the subject of a search freely and voluntarily gives consent
for a search, the search is constitutionally permissible even without
probable cause or a warrant. See Schneckloth v. Bustamonte, 412 U.S.
218, 222 (1973). Whether consent to search was freely and voluntar-
ily given is a factual question to be determined by the totality of the
circumstances. See Schneckloth, 412 U.S. at 227. "In viewing the
totality of the circumstances, it is appropriate to consider the charac-
teristics of the accused (such as age, maturity, education, intelligence,
and experience) as well as the conditions under which the consent to
search was given (such as the officer's conduct; the number of offi-
cers present; and the duration, location, and time of the encounter)."
United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). Whether
Chavez knew that he possessed a right to refuse consent also is rele-
vant in determining the voluntariness of consent, although the Gov-
ernment need not demonstrate that Chavez knew of his right to refuse.
See id.

The voluntariness of consent to search is a factual question, and we
affirm the determination of the district court unless its finding is
clearly erroneous. See id. And, when the lower court bases its finding
of consent on the oral testimony at a suppression hearing, the clearly
erroneous standard is particularly strong since the court observed the
demeanor of the witnesses. See id. at 650-51.

Chavez's primary argument is that, as an American of Hispanic
descent, he did not understand the officer's requests for consent
phrased as "do you mind if" and "you don't mind if I." Chavez asks
this court to reverse the denial of his suppression motion because
"cultural and language barriers can result in a different interpretation

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being given to requests and responses to the requests which could
affect" the court's ruling on voluntariness.

Based on our review of the totality of the surrounding circum-
stances, we cannot say that the factual finding of the district court that
Chavez's consent was voluntary was clearly erroneous. The district
court's factual findings concerning Chavez's personal characteristics
and the conditions under which Chavez consented are well-supported
by the record. In addition, Chavez testified that he knew he had the
right to say no to the search and Chavez had prior experiences with
the police and criminal justice system. See Lattimore, 87 F.3d at 651.

Because we conclude that Chavez's claim is without merit, we
affirm. 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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