                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0028n.06

                                            No. 08-6512                                   FILED
                                                                                       Jan 19, 2010
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


United States of America,                                  )
                                                           )
       Plaintiff-Appellee,                                 )        ON APPEAL FROM THE
                                                           )        UNITED STATES DISTRICT
                  v.                                       )        COURT FOR THE WESTERN
                                                           )        DISTRICT OF TENNESSEE
Frank Phillips,                                            )
                                                           )
       Defendant-Appellant.                                )
                                                           )



BEFORE: SILER, ROGERS, and MCKEAGUE, Circuit Judges.

       ROGERS, Circuit Judge. Frank Phillips, sentenced to 180 months’ imprisonment following

his guilty plea to being a felon in possession of a firearm, appeals the district court’s denial of his

motion to suppress evidence discovered by police after a warrantless entry into his hotel room. The

only issue presented by this appeal is whether Phillips voluntarily gave consent for police to enter

his hotel room. Detective Castillo, leader of the police team that visited Phillips’ hotel room for a

“knock and announce,” testified at the suppression hearing that Castillo asked for and received

permission to enter Phillips’ hotel room; Phillips testified that the police entered his hotel room

without asking for permission. The district court determined that Detective Castillo’s testimony was

more credible and denied the motion to suppress. Because nothing in the record compels the

conclusion that the district court’s credibility finding was clearly erroneous, Phillips’ conviction

must be upheld.
No. 08-6512
United States v. Phillips


       Frank Phillips was arrested in the hotel room where he lived on August 11, 2007, after police

found a small amount of crack cocaine, a crack pipe, and a gun next to his bed. Phillips’ attorney

filed a motion to suppress the evidence discovered in the hotel room, arguing that Phillips never

consented to the officers’ entering his room. Three witnesses who were present at the hotel room

testified at the suppression hearing: Phillips; Detective Castillo, the officer in charge of the

investigation; and Detective McMinn, a member of the investigative team. The district court held

that the evidence was admissible, and Phillips subsequently pleaded guilty to being a felon in

possession of a firearm and was sentenced to 180 months’ imprisonment. As part of the guilty plea,

Phillips reserved the right to appeal the denial of his motion to suppress.

       At the suppression hearing, Detective Castillo testified that he organized a four-person

investigative team in response to a report from a fellow officer stating that an individual had reported

that somebody was selling crack cocaine in room 222 of the King’s Court Motel. The arrest ticket,

written by Detective McMinn, also stated that the individual was armed, but Detective Castillo

testified that he had no knowledge of any firearm. Detective Castillo and other members of the team

were dressed in black “takedown gear” with the word “police” written across the chest. Upon

arriving at the King’s Court Motel, the officers proceeded directly to room 222, where Phillips was

living. The parties dispute what happened next.

       Detective Castillo testified that when the team arrived at Phillips’ room, Castillo knocked

on the door to conduct what is known as a “knock and talk.” Castillo stated that the “main purpose

of a knock and talk would be to let the person at that residence know that there has been a complaint,


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United States v. Phillips


and with their permission, if they would let us come in, we can take care of the complaint.”

According to Castillo, Phillips answered the door, and Castillo told Phillips about the investigation

and the information that led to the investigation. Castillo then stated that he asked Phillips “if he

minded if we stepped in.” Phillips said “no, come on in.” As soon as Castillo entered the room he

could see an object on the nightstand that he recognized immediately as a crack pipe based on his

experience with the police department. While Castillo spoke with Phillips, Detective McMinn

secured the crack pipe and located additional evidence. Castillo read Phillips his Miranda rights and

placed him under arrest. Castillo also testified that sometime prior to the arrest, Phillips stated,

without provocation, that he did not sell drugs, he just used them.

       Phillips disputed much of Castillo’s testimony about the officers’ conduct. Phillips stated

that he was on the phone in his room when he heard a knock at the door. When he did not answer

immediately, he heard a second round of knocking and voices threatening to kick in the door if he

did not answer. According to Phillips, when Phillips opened the door, Castillo stated, “Where is the

pistol at? Because we don’t want to get harmed.” Castillo then began to conduct a pat-down search

on Phillips while Castillo was standing outside the hotel room and Phillips was standing just inside

the door. Phillips testified that, after the pat-down search, the officers came into the room without

asking permission and Phillips backed up toward the window. While Castillo spoke with Phillips,

the other members of the investigative team conducted a search of his hotel room. Upon finding $60

in a nightstand drawer, one of the police officers asked Phillips if that was all the money he made.

Phillips responded that he did not sell crack. As Castillo continued to ask Phillips about the pistol,


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No. 08-6512
United States v. Phillips


Detective McMinn located the crack and the firearm in a drawer by the nightstand. Phillips also

testified that no officer ever shined a flashlight inside the room while standing at the door. On-cross

examination, Phillips admitted that he had been smoking crack before the police arrived and that he

could not remember where the crack pipe was when the officers located it.

       Detective McMinn corroborated much of Castillo’s version of events, but McMinn was not

able to confirm or deny that Castillo asked for consent to enter the hotel room. McMinn testified

that he had prepared the arrest ticket for Phillips and that the ticket stated that an armed individual

was selling drugs at the King’s Court Motel. When the team arrived at room 222, McMinn testified

that he was standing about four or five feet away from Castillo when Castillo knocked on the door.

Phillips answered, and McMinn testified that before entering the room, Castillo introduced himself

as Detective Castillo of the Organized Crime Unit and asked if the officers could talk to Phillips.

McMinn testified that Phillips “stepped back and allowed us to come into the room,” but when asked

if Castillo actually requested consent to enter the hotel room, McMinn stated, “I don’t recall exactly

what Castillo said to Mr. Phillips.” On cross-examination, McMinn stated, “I don’t recall the words

that Castillo spoke at the door. I was off to the side. Instead of standing around in front of the door,

I was off to the side in front of the room next door to it.” Phillips’ counsel then asked, “You didn’t

hear Mr. Phillips say, y’all come on in, did you?” McMinn responded, “No.”

       McMinn described the interior of the hotel room as dimly lit and stated that there was a light

on in the area of the restroom that was part of the main living area. Once the officers were inside

the room, McMinn scanned the room using his flashlight to see if anybody else was inside the room.


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No. 08-6512
United States v. Phillips


When he scanned the bed area, he noticed a crack pipe, along with three white rocks. After seeing

the crack pipe, McMinn left the entrance area, walked to the bed, and shined his flashlight on the

pipe and what appeared to be rocks of crack cocaine. As he did this, the light from the flashlight

illuminated a drawer on the nightstand, and McMinn noticed what he identified immediately as the

grip of a handgun.

       Following the testimony of Castillo, Phillips, McMinn, and a fourth witness not relevant for

purposes of this appeal, the district court determined that because McMinn was unable to testify as

to the details of the conversation between Castillo and Phillips, the motion turned on a credibility

determination between Castillo and Phillips. After a thorough discussion of the different versions

of events given by the parties, the district court determined that Phillips’ version of events simply

was not credible. The court reasoned that Phillips’ clear recollection of certain events was

inconsistent with his inability to recall some of the salient points of what occurred that evening, such

as where the crack and the crack pipe were located. The court also noted that Phillips had a

checkered criminal history and had admitted to smoking crack cocaine shortly before the officers

arrived. The court credited Castillo’s testimony that Phillips voluntarily granted permission for the

officers to enter the hotel room. The court held that because the officers were entitled to scan the

room visually for safety, the evidence was discovered in plain view. The district court denied the

motion to suppress, and Phillips pleaded guilty to being a felon in possession of a firearm. Phillips

filed this timely appeal.




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No. 08-6512
United States v. Phillips


       Because nothing in the record compels the conclusion that the district court’s credibility

determination was clearly erroneous, we uphold the district court’s decision to deny Phillips’ motion

to suppress the evidence discovered during the search of the hotel room. Phillips argues that because

he never gave Castillo and his team consent to enter the hotel room where Phillips had been living,

entry into his hotel room by the police and the subsequent discovery of the evidence against him

violated the Fourth Amendment. The Fourth Amendment “generally prohibits the warrantless entry

of law enforcement personnel into a person’s home.” United States v. Ivy, 165 F.3d 397, 401 (6th

Cir. 1998). However, the prohibition does not apply where consent to enter has been obtained

voluntarily. Id. In cases of warrantless entry or searches, “[t]he burden of proving that a search was

voluntary is on the government, and must be proved by clear and positive testimony.” United States

v. Moon, 513 F.3d 527, 537 (6th Cir. 2008).

       Here, Castillo’s clear and positive testimony establishes that the police received voluntary

consent to enter the hotel room. Castillo testified that the investigative team wore clothing that

clearly identified them as police, that Castillo knocked on Phillips’ door and informed Phillips of

the information leading to the investigation, and that Castillo asked for permission to enter the hotel

room, which Phillips verbally granted. When the officers entered the room, both Castillo and

McMinn immediately recognized a crack pipe inside the room while scanning the area for other

individuals. In moving to seize the crack pipe, McMinn discovered three rocks of crack cocaine and

the handgun. Although Phillips disputed this version of events at the suppression hearing, the

district court carefully weighed the evidence and made a determination that Castillo’s testimony was


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United States v. Phillips


more credible. “To attack a district court’s suppression hearing credibility determination, a

defendant must establish that the district court’s conclusion was clearly erroneous.” United States

v. McCauley, 548 F.3d 440, 447 (6th Cir. 2008).         A district court’s credibility finding carries

considerable weight, and “[f]indings of fact anchored in credibility assessment are generally not

subject to reversal upon appellate review.” Ivy, 165 F.3d at 401 (internal quotations omitted).

Because nothing in the record compels the conclusion that the district court’s decision to credit

Castillo’s version of events was clearly erroneous, affirmance of the district court’s decision to deny

the motion to suppress the evidence discovered in Phillips’ hotel room is required.

       Phillips argues that the district court’s credibility determination was clearly erroneous (1)

because the court determined incorrectly that Detective McMinn testified that he did not hear

whether Castillo asked for permission to enter the hotel room when McMinn actually testified that

he could not recall what Castillo said to Phillips; (2) because McMinn’s testimony failed to

corroborate Castillo’s version of events; and (3) because Phillips, who was familiar with the criminal

justice system through his many past arrests, would never have consented to police entry into a hotel

room with drugs and a weapon inside. These arguments fail, however, because the fact that Phillips

acted against his own self-interest is not sufficient to require a court to conclude that he did not

consent to entry, and because McMinn’s testimony is much more consistent with Castillo’s

testimony than with Phillips’ version of events. Phillips argues that because McMinn never

explicitly told the court that he could not hear what Castillo said to Phillips and because it would be

unreasonable for someone standing only four or five feet away from two people engaging in a


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United States v. Phillips


conversation to be unable to hear what was said between them, the district court’s conclusion was

clearly erroneous. McMinn’s testimony, however, was that he did not recall exactly what was said

because he was standing off to the side near the room next door. On cross-examination, when asked

whether he heard Castillo ask for permission to enter, McMinn said no. McMinn’s testimony

establishes only that, at a suppression hearing months after an arrest, McMinn could not recall the

exact details of a conversation between a Detective four or five feet away and a suspect inside a hotel

room. The only inconsistency between McMinn’s and Castillo’s versions of events was whether the

police knew before entering the room that the suspect was likely to be armed. However, this

difference had little to do with whether consent was voluntarily given. Moreover, McMinn’s

testimony is not at all consistent with Phillips’ version of events, which is that the police banged on

the door, threatened to break it down when Phillips did not answer at first, began physically

searching Phillips and asking where his gun was, and entered before Phillips stepped back or gave

verbal consent to entry. McMinn’s testimony does not help Phillips.

       AFFIRMED.




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