                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        March 22, 2006
                                   TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 05-7031
 v.                                               (D.C. No. 04-CR-104-W)
                                                        (E.D. Okla.)
 CHRISTOPHER DALE MASTERS,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and LUCERO, Circuit Judges. **


      Defendant-Appellant Christopher Dale Masters appeals the denial of his

motion to suppress evidence obtained during a search of his home. Mr. Masters

entered a conditional plea of guilty to one count of maintaining a place for the

purpose of manufacturing, distributing and using methamphetamine in violation

of 21 U.S.C. § 856(a)(1). Fed. R. Crim. P. 11(a)(2). After an evidentiary

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
hearing, the district court denied the motion to suppress in an oral ruling. The

district court held that Mr. Masters voluntarily consented to the search and was

not impaired at the time he gave his consent. The district court’s ruling rests

largely upon its determination of the credibility of the witnesses. Our jurisdiction

arises under 28 U.S.C. § 1291, and we affirm.



                                 Background

      On the evening of February 23, 2004, Bureau of Alcohol, Tobacco and

Firearms (“ATF”) Special Agent Knopp, two ATF Task Force Officers, and

McCurtain County, Oklahoma Sheriff Willeby visited Mr. Masters’ rural

residence located east of Broken Bow, Oklahoma. According to the officers, the

purpose of the visit was to interview Mr. Masters concerning his potential

association with and knowledge of drug trafficking activities. Upon arrival, the

officers noted several trailers, an outbuilding, boats, and vehicles surrounding the

house on Mr. Masters’ property.

      Agent Knopp informed Mr. Masters that he was in possession of

information linking Mr. Masters to illegal drug manufacturing, and he asked Mr.

Masters for permission to look around the house and outbuildings. Mr. Masters

agreed, and accompanied Agent Knopp, Sheriff Willeby, and one of the Task

Force Officers, Detective Park, on a walk through of the premises. The officers’


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first stop was an outbuilding. Upon their initial arrival at Mr. Masters’ property,

they had observed another person exiting from that same building. Upon

entering, Detective Park identified several items in plain view that were

consistent with the manufacture of methamphetamine. Mr. Masters claimed that

he had no knowledge of the items and stated that the man seen exiting the

building was most likely responsible.

      The officers next asked Mr. Masters for permission to enter his residence to

talk, and he assented. They entered the home and encountered several other

people in the living or dining room area. The agents secured a handgun in plain

view on a shelf. In order to obtain more privacy, Agent Knopp asked Mr. Masters

to lead them to his bedroom. Upon entering, the officers noted a video

surveillance monitor perched atop a gun safe. Detective Park asked to look

through some of Mr. Masters’ dresser drawers, but Mr. Masters objected and

Detective Park did not investigate the drawers. Agent Knopp asked Mr. Masters

if he could inspect the open gun safe, but Mr. Masters closed the door and spun

the combination dial. At that point, Agent Knopp noticed a handgun in a closet in

Mr. Masters bedroom. Later, Sheriff Willeby found another handgun in the

dining room. Agent Knopp advised Mr. Masters that it was his belief that the gun

safe contained either illegal drugs or firearms, or even both, and he asked for Mr.

Masters’ permission to search it.


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      At some point, Mr. Masters suggested he should talk with an attorney.

According to the government, Agent Knopp told Mr. Masters that he had a right

to do so. Mr. Masters apparently picked up his telephone and began to dial, but

for some reason did not complete the call. Mr. Masters contends that this was

only one of numerous instances where he indicated his desire to call his attorney.

He also contends that the law enforcement officers prevented him from calling his

attorney by suggesting that if he did so, they would force his friends and family,

including his one-year old daughter, to stand outside in the cold and rain while

they secured a search warrant.

      Agent Knopp prepared a consent to search form and read it to Mr. Masters.

Mr. Masters debated whether to sign the document and even suggested that the

officers search the outbuildings while he considered whether to consent to a

search of his home. After vacillating for a short time, Mr. Masters signed the

consent form. Thereafter, the officers found several guns, two large baggies

containing white powder (later determined to be methamphetamine), and cash in

Mr. Masters’ safe.

      Mr. Masters then agreed to show the officers where in his home he kept

illegal drugs and informed them of where on the premises they could locate other

illegal drugs. The officers searched the premises for some time, and departed

without arresting Mr. Masters.


                                        -4-
                                 Discussion

      On appeal, Mr. Masters argues that the warrantless search of his home

violated the Fourth Amendment. He contends that his consent was not voluntary

because law enforcement disregarded his requests for counsel and threatened to

damage his home if he refused consent and made them obtain a warrant. He

further argues that any consent was preceded by an unlawful search and seizure

because he was not free to leave and law enforcement actually seized a weapon.

Mr. Masters also claims that he was in a state of diminished capacity–heavily

medicated, and compromised by various health conditions. He also maintains that

he acted out of concern for his guests and infant daughter at the home.

      Upon reviewing the denial of a motion to suppress, we view the evidence in

the light most favorable to the government. United States v. Rosborough, 366

F.3d 1145, 1148 (10th Cir. 2004). Determining credibility of witnesses and

assigning the weight to be given to evidence is the province of the district court,

and we accept the district court’s factual findings unless they are clearly

erroneous. Id. We review de novo though, the “ultimate determination of

reasonableness under the Fourth Amendment.” Id.

      As an initial matter, we note that the officers did not have a warrant to

search Mr. Masters’ home. While a warrantless search may in other

circumstances stand in violation of the Fourth Amendment, it is well settled that


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“one of the specifically established exceptions to the requirements of both a

warrant and probable cause is a search that is conducted pursuant to consent.”

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Valid consent is that

which is “freely and voluntarily given.” Id. at 222 (internal quotations omitted).

Whether a defendant has freely and voluntarily given his consent to a search is a

question of fact and is determined from the totality of the circumstances. United

States v. West, 219 F.3d 1171, 1177 (10th Cir. 2000).

      The district court determined that Mr. Masters consented to the search.

First, it determined that Mr. Masters was not suffering from diminished capacity

due to his intake of medication or his other claimed medical conditions. The

court took into account Mr. Masters’ intelligence, his strong memory of the

situation, repeated requests for counsel, and a review of his medical records. Mr.

Masters asked for counsel because he “knew what his rights were,” and he was

feeling threatened by events. Motion Hrg. Tr. at 205. Second, the district court

found that Mr. Masters failed to make a clear and unequivocal request for

counsel. We agree with the district court that the ATF was not required to

provide Mr. Masters with an attorney. The consent form that Mr. Masters signed

supports the district court’s conclusion that Mr. Masters at all times knew that he

could call an attorney, yet he did not do so. see id. at 186. Lastly, the district

court determined that Mr. Masters failed to show that the officers had coerced


                                          -6-
him into signing the consent form. The court noted that, unlike Mr. Masters’

witnesses’ testimony, Agent Knopp was “very believable,” and the “clear and

positive testimony” showed that “Mr. Masters’ consent was unequivocal, that it

was intelligently given, that it was specific, and it was freely given.” Id. at 208.

      The district court’s findings on consent are supported by the record. The

government met its burden to show that consent was voluntary. Mr. Masters

made the decision to cooperate with the agents and show them what they wanted

to see. We reject the notion that Mr. Masters’ consent was the product of an

unlawful seizure. Even though Mr. Masters was in his home, and five law

enforcement officers were present, the testimony credited by the district court

indicates that the situation was orderly and Mr. Masters was cooperative while

weighing his options, and then deciding to cooperate fully with law enforcement.

See United States v. Spence, 397 F.3d 1280, 1283-84 (10th Cir. 2005). Indeed,

Mr. Masters was not arrested after the discovery of incriminating evidence.

Consent is not rendered involuntary merely because Mr. Masters was told that if

he refused consent, law enforcement would have to seek a search warrant, and the

home’s occupants would have to be removed to ensure no destruction of evidence.

      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.

                                         -7-
Circuit Judge




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