                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 04a0135n.06
                              Filed: November 30, 2004

                                          No. 03-6241


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                  ON APPEAL FROM THE UNITED
                                                    STATES DISTRICT COURT FOR THE
ERIC D. WALLS,                                      WESTERN DISTRICT OF TENNESSEE

      Defendant-Appellant.
________________________________/



BEFORE:        KEITH, CLAY and COOK, Circuit Judges.

       CLAY, Circuit Judge. Defendant Eric D. Walls appeals from the September 18, 2003

judgment of the United States District Court for the Western District of Tennessee, convicting him

of being a felon in possession of ammunition shipped in interstate commerce in violation of 18

U.S.C. § 922(g). For the reasons set forth below, we AFFIRM Defendant’s conviction.

                                       BACKGROUND

                                       Procedural History

       A federal grand jury indicted Defendant on February 24, 2003, on the charge of being a

felon in possession of ammunition shipped in interstate commerce in violation of 18 U.S.C. §

922(g). Defendant filed a motion to suppress evidence before the district court on May 22, 2003.

A suppression hearing was held on June 30, 2003, at which time the district court issued an oral
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ruling denying Defendant’s motion. Defendant subsequently pleaded guilty to the felon in

possession charge, but reserved his right to appeal the district court’s suppression ruling. On

September 17, 2003, the district court sentenced Defendant to 46 months imprisonment.

       Defendant timely appealed to this Court on September 19, 2003.

                                       Substantive Facts

       On August 16, 2002, Defendant was identified as a suspect in a residential burglary. Based

upon that identification, an investigator from the McNairy County Sheriff’s Department obtained

a warrant for Defendant’s arrest on August 22, 2002. Sergeant Jim Replogle of the Selmer Police

Department was notified of the warrant, and was asked to locate Defendant.1 Along with two other

officers, Replogle went to Defendant’s home armed with the arrest warrant.

       Replogle arrived at Defendant’s residence around 10:00 p.m. and knocked on the door.

Defendant answered, and was informed by Sergeant Replogle that he had a warrant for Defendant’s

arrest. Defendant was then arrested on the front porch. At the time of the arrest, Defendant was

barefoot, and he requested to return inside the house to get his shoes. Replogle consented, and

accompanied Defendant back into the house.

       Once inside Defendant’s home, the facts become disputed. Defendant claims that Sergeant

Replogle telephoned another officer, told that person that he had arrested Defendant, and asked

whether he should search Defendant’s home. Sergeant Replogle claimed that he did telephone his

colleague, Sergeant Weaver, to report on the situation at Defendant’s home and ask what action


       1
         Sergeant Replogle was familiar with Defendant due to a previous incident where Defendant
was the victim of a crime; consequently, Replogle had been to Defendant’s home, and could easily
identify him.

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should be taken next. However, Replogle maintained that he telephoned Weaver after Defendant

had consented to a search of his home, and after Replogle discovered contraband.

       The district court found that Sergeant Replogle’s version of the events was credible.

Replogle testified that shortly after he effectuated the arrest, he asked Defendant whether he “had

anything in the house that he shouldn’t have,” to which Defendant responded “no.” Replogle then

asked Defendant “do you mind if I take a look,” and Defendant said “go ahead.” It is undisputed

that during his search of Defendant’s home, Replogle discovered a box of CCI Blazer Ammunition,

containing sixteen .380 caliber rounds, on the dresser in Defendant’s bedroom. No gun or other

contraband was uncovered in Defendant’s home.

       Sergeant Replogle contended that he advised Defendant of his Miranda rights before leaving

Defendant’s home, and again after he took Defendant to the police station. See Miranda v. Arizona,

384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Defendant claims that he was not read his

rights before arriving at the police station, and although he concedes that he was given Miranda

warnings at the police station, he claims that the warnings came after he had already given an

incriminating statement. That statement reads, “The bullets that were found in my house I had

bought at a pawn shop across from Phillips 66. At the time I bought them I had been assaulted the

night before.”

       It is undisputed that Defendant gave the written statement and also signed a Miranda waiver

form, however the timing of the warnings, waiver and statement are disputed. Defendant’s written

statement is marked with a time of 22:25 hours; his waiver form is marked 22:30 hours. Defendant

argues that he first gave the written statement, then Sergeant Replogle read him his rights, and lastly,



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he executed the Miranda waiver. Replogle claimed that the sequence of events was first warning,

then statement, and lastly signing of waiver. The district court again credited Replogle’s version.

       Before the district court, Defendant moved to suppress the bullets and his written statement,

claiming that the bullets were the fruit of an illegal search and the statement was given without the

benefit of Miranda warnings. After both Defendant and Sergeant Replogle testified, the district

court issued an oral ruling denying the motion to suppress evidence. The court based its ruling on

witness credibility, finding that Sergeant Replogle was simply a more believable witness.

                                           DISCUSSION

       The only issue presented for our review is whether the district court erred in denying

Defendant’s motion to suppress evidence. We review the district court’s factual findings on a

suppression issue for clear error, and its legal conclusions de novo. United States v. Stewart, 306

F.3d 295, 304 (6th Cir. 2002); United States v. Hill, 142 F.3d 305, 310 (6th Cir. 1998). Under the

clear error standard, we will accept the district court’s factual findings absent a “‘definite and firm

conviction that a mistake has been committed.’” United States v. Rodriguez, 301 F.3d 666, 668 (6th

Cir. 2002) (quoting United States v. Unites States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525,

92 L. Ed. 746 (1948)); accord United States v. Worley, 193 F.3d 380, 384 (6th Cir. 1999).

Additionally, when a district court denies a motion to suppress, “we consider the evidence in the

light most favorable to the government.” United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004)

(en banc).

       A.      Consent to Search




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       “It is well-settled that a person may waive his Fourth Amendment rights by consenting to

a search.” Carter, 378 F.3d at 587 (citing United States v. Davis, 328 U.S. 582, 593-94 (1946)).

In order for consent to be valid, the prosecution must show that it was “freely and voluntarily given.”

Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968); see also

Worley, 193 F.3d at 385 (“We note at the outset that ‘[i]t is the [g]overnment’s burden, by a

preponderance of the evidence, to show through clear and positive testimony’ that [defendant’s]

valid and voluntary consent to the search was obtained.”) (quoting United States v. Riascos-Suarez,

73 F.3d 616, 625 (6th Cir. 1996)). Whether consent was ‘freely and voluntarily given’ is “a question

of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412

U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); Carter, 378 F.3d at 587.

       We do not find that the district court’s decision on consent was clearly erroneous. The only

evidence on the question was the competing testimony offered by Defendant and Sergeant Replogle.

In weighing that evidence, the district court made a factual determination that Sergeant Replogle was

the more credible witness. We have previously noted that “findings of fact anchored in credibility

assessments are generally not subject to reversal upon appellate review.” United States v. Taylor,

956 F.2d 572, 576 (6th Cir. 1992) (en banc); see also United States v. Davis, 306 F.3d 398, 423 (6th

Cir. 2002) (noting that “appellate courts generally do not review the district court’s determinations

regarding witness credibility”).      Deference is afforded to the district court’s credibility

determinations because the district court “was in the best position to make such a determination.”

United States v. Hill, 195 F.3d 258, 264-65 (6th Cir. 1999); accord United States v. Lawrence, 308

F.3d 623, 627 (6th Cir. 2002); United States v. Ivy, 165 F.3d 397, 401 (6th Cir. 1998). “[P]recisely



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because testimony often becomes more ambiguous when reduced to toneless words on a page, we

defer to the district court’s factual finding.” Carter, 378 F.3d at 589.

       Defendant has not made any convincing arguments before this Court that would cause us to

take the unusual step of setting aside the district court’s credibility determination. Defendant argues

that Schneckloth stands for the proposition that the failure to advise a suspect of his constitutional

right to refuse a search should be taken into account in determining whether consent was freely and

voluntarily given. It is true that Schneckloth mentions failure to advise as a non-determinative factor

in the totality of the circumstances analysis, but “[w]hile knowledge of the right to refuse consent

is one factor to be taken into account, the government need not establish such knowledge as the sine

qua non of an effective consent.” Schneckloth, 412 U.S. at 227. Additionally, the Supreme Court’s

more recent holding in Ohio v. Robinette undercuts the notion that the failure of law enforcement

officers to advise a suspect of his right to refuse consent to search vitiates voluntariness. Ohio v.

Robinette, 519 U.S. 33, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996) (holding that the Fourth

Amendment does not require law enforcement officers to advise seized individuals that they are free

to leave prior to requesting consent to search).

       Defendant also argues that the government has not met its burden of proving free and

voluntary consent because acquiescence to an officer’s claim to lawful authority is not valid consent.

While that statement is legally correct, see, e.g., Bumper, 391 U.S. 543, the facts of this case do not

demonstrate mere acquiescence. We have previously characterized the government’s burden in this

regard as establishing that a suspect’s purported consent “was an unequivocal statement of free and

voluntary consent, not merely a response conveying an expression of futility in resistence to



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authority or acquiescing in the officers’ request.” Worley, 193 F.3d at 386 (citing United States v.

Jones, 641 F.2d 425, 429 (6th Cir. 1981)). In Worley, this Court found that the government failed

to meet its burden of demonstrating that “you’ve got a badge, I guess you can [search]” equaled free

and voluntary consent. Id. By contrast, Defendant’s statement of “go ahead” is almost exactly the

same as the expression of consent deemed acceptable in Schneckloth. 412 U.S. at 220 (noting

expression of consent as “Sure, go ahead”). In addition, the district court here found that Defendant

consented to the search because in his mind the bullets were not going to be a problem. The court

opined that Defendant’s subsequent discovery that the bullets were a problem “brought about the

divergence in testimony about what happened.” This conclusion demonstrates that the district court

was satisfied the government met its burden of proving free and voluntary consent, and we do not

believe this conclusion was clearly erroneous.

       There is no evidence in the record that suggests to us that the district court erred in believing

Sergeant Replogle’s testimony over Defendant’s. Thus, we find no basis for reversing the district

court’s determination that Defendant freely and voluntarily consented to a search of his home.

       B.      Miranda Warnings

       It is without question that “incriminating statements elicited from suspects in custody cannot

be admitted at trial unless the suspect was first advised on his or her Miranda rights.” United States

v. Salvo, 133 F.3d 943, 948 (6th Cir. 1998) (citing Stansbury v. California, 511 U.S. 318, 322, 114

S. Ct. 1526, 128 L. Ed. 2d 293 (1994)). As with the waiver of consent to search, the government

has the burden of proving that a defendant validly waived his or her Miranda rights. See Seymour

v. Walker, 224 F.3d 542, 544 (6th Cir. 2000). In order for a Miranda waiver to be valid, it must be



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voluntary, knowing and intelligent, under the totality of the circumstances. See Moran v. Burbine,

475 U.S. 412, 421, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986); Machacek v. Hofbauer, 213 F.3d 947,

954 (6th Cir. 2000) (citing Pennsylvania v. Muniz, 496 U.S. 582, 589, 110 S. Ct. 2638, 110 L. Ed.

2d 528 (1990)). Additionally, “there must be an element of police coercion in order for a waiver to

be found involuntary.” Seymour, 224 F.3d at 554 (citing Colorado v. Connelly, 479 U.S. 157, 169-

70, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986)).

       Defendant does not appear to argue that he did not knowingly, intelligently and voluntarily

waive his Miranda rights, or that his statement was coerced in any way. Rather, he argues that the

government has failed to meet its burden of proving that Defendant received any Miranda warnings

at all prior to giving his statement. However, we think that it is clear from the district court’s

suppression ruling that the court was convinced, based on Sergeant Replogle’s testimony and the

waiver form with Defendant’s signature on it, that Defendant was duly informed of his rights and

validly waived them. As with the consent issue, Defendant’s argument boils down to a request that

this Court take the extraordinary step of setting aside the district court’s credibility determination.

However, there is nothing in the record to suggest that under the totality of the circumstances, the

district court’s ruling was clearly erroneous.

       We find further support for our decision here in one of our prior cases with very similar facts.

See United States v. Brown, 66 F.3d 124 (6th Cir. 1995). In Brown, the defendant claimed that she

signed a Miranda waiver after questioning, but the officer maintained that she was apprised of her

rights before being questioned, and that she understood, agreed to and signed a waiver at that time.

Consequently, this Court found that “the district court was not clearly erroneous in concluding that



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Miranda did not bar the admission of the statement.” Id. at 26. Likewise, the district court here was

not clearly erroneous in accepting Sergeant Replogle’s explanation over Defendant’s testimony.

       Further, although Sergeant Replogle conceded that Defendant did not sign the waiver form

until after questioning, there is “no authority . . . for the proposition that a written waiver is

necessary to establish a knowing, intelligent and voluntary waiver of Miranda rights.” United States

v. Miggins, 302 F.3d 384, 397 (6th Cir. 2002); cf. United States v. Eicher, 927 F.2d 605, 1991 WL

29199 at **2 (6th Cir. 1991) (unpublished table decision) (“We find the law to be clear that the

failure to sign a waiver after Miranda warnings have been given, does not render subsequent

statements inadmissible.”); United States v. Vaughn, 496 F.2d 622, 622 (6th Cir. 1974) (“[R]efusal

to sign a written waiver, standing alone, does not render inadmissible statements or evidence

voluntarily given after full warnings.”).

                                            CONCLUSION

       There is no basis in the record for us to find clear error in the district court’s ruling that

Defendant consented to the search of his home and was duly informed of, and voluntarily waived,

his Miranda rights. Therefore we AFFIRM Defendant’s conviction under 18 U.S.C. § 922(g).




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