                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                         _____________________

                                No. 01-31468
                           _____________________

                       UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                  versus

                             BERNARD FERGUSON,

                                                   Defendant-Appellant.


             Appeal from the United States District Court
                 for the Eastern District of Louisiana
                            (01-CR-43-ALL-J)

                            September 17, 2002

Before REAVLEY, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Bernard Ferguson appeals his guilty-plea conviction for being

a felon in possession of a firearm, claiming:       the district court

failed to address the voluntariness vel non of the implied consent

for the warrantless search that led to his arrest, and this court

should therefore remand for a determination on voluntariness; or,

alternatively, the implied consent for the search was involuntary,

and this court should reverse his conviction and render judgment in

his favor.     AFFIRMED.



     *
      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this opinion should not be published and is not precedent except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.
                                 I.

     Ferguson’s arrest arises out of members of a joint task force

of city, state, and federal law enforcement officers going to the

New Orleans apartment of Phyllis Terrell to execute an arrest

warrant (probation violations) for Terrell’s boyfriend, Charles

Dright.   They did not have a search warrant.

     At   Ferguson’s   suppression       hearing,   United   States   Deputy

Marshal Brouillett, a task force member, testified: in mid-January

2001, officers received a tip that Dright might be residing at

Terrell’s apartment; Deputy Brouillett and other officers arrived

there after midnight of 30 January 2001; four officers, including

Deputy Brouillett and New Orleans Police Officer Smith, approached

the front door while other officers stationed themselves around the

apartment’s perimeter; Deputy Brouillett and Officer Smith knocked,

heard a voice inside ask who it was, and replied they were police;

they knocked again, received no response, but heard the sound of

furniture being moved and people talking; they knocked a third

time, and Ferguson opened the door; while they spoke with Ferguson,

Terrell approached the door; Deputy Brouillett and Officer Smith

informed Terrell they were police officers, stated they had a

warrant for Dright’s arrest, and asked if he was inside the

apartment; Terrell responded that Dright was in the bedroom and

pointed to the rear of the apartment; Deputy Brouillett and Officer

Smith, believing Terrell had given them permission to enter the


                                     2
apartment to locate Dright, proceeded to the bedroom and found him

there.

     Deputy   Brouillett   further       testified:   while   the   above-

described events were taking place, officers positioned around the

apartment’s perimeter radioed that drugs had been tossed from one

of the apartment’s rear windows; Deputy Brouillett and Officer

Smith escorted Dright from the bedroom to the living room where

Ferguson and Terrell were located and advised them of their Miranda

rights; officers began searching the apartment; Deputy Brouillett

asked Terrell, Dright, and Ferguson if there were any weapons in

the apartment; and Ferguson replied affirmatively, directing Deputy

Brouillett to a desk drawer containing a semi-automatic pistol.

     Officer Smith also testified at the suppression hearing.           He

largely corroborated Deputy Brouillett’s testimony.

     On the other hand, Terrell testified to a materially different

course of events:   Ferguson, her brother, resided at the apartment

with her; at the time in question, she was in the bedroom with

Dright when she heard two knocks on her front door; after both

knocks, she heard Ferguson ask, “Who is it?”; at the third knock,

she sent Dright to answer the door; as Dright left the bedroom,

there was a kick at the door; she followed Dright, to find officers

already in her living room; she was handcuffed and, along with

Ferguson, taken outside into a hallway while officers searched the

apartment; at some point, they were brought back into the living


                                     3
room, while officers continued the search; the officers found a gun

in a desk drawer; and Dright, not Ferguson, claimed ownership of

it.

      Ferguson was indicted for being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).                   He

moved to suppress, citing United States v. Steagald, 451 U.S. 204

(1981),     for   the    proposition   that,   absent      consent    or   exigent

circumstances,      officers    may    not   enter   and    search    a    person’s

residence on the basis of an arrest warrant for another.                   Ferguson

claimed      a    lack     of   consent      and     exigent    circumstances.

Alternatively, and assuming the officers validly entered Terrell’s

apartment, Ferguson claimed the search exceeded that permitted

incident to arrest.

      The    Government     responded:       Ferguson      lacked    standing    to

challenge the search because he was neither the homeowner nor

recorded lessee; alternatively, the officers entered the apartment

only after they believed they had Terrell’s consent to enter; and

they inquired about, and discovered, the gun only after being

advised drugs had been thrown from the apartment.

      After conducting the suppression hearing, the district court

rendered a detailed order, stating its reasons for denying the

motion.     United States v. Ferguson, No. 01-43 (E.D. La. 12 Sept.

2001).      First, it held Ferguson had standing to challenge the

search because he had a reasonable expectation of privacy in the


                                         4
apartment, in that he was often an overnight guest, planned to

spend that night at the apartment, and kept clothes there.                 (On

appeal, the Government does not contest standing.)

     Concerning the conflicting testimony about the search, the

court found “the Government’s version of the events that transpired

on the night [Ferguson] was arrested is the most credible”.                It

concluded:       Terrell’s conduct (answering that Dright was in the

bedroom    and    pointing   in   that   direction)    “reasonably   led   the

officers to believe they had her consent to enter the apartment”.

In so concluding, it noted that Terrell “at no time objected or

attempted    to    stop   the     officers   once   they   were   inside   her

apartment”.

     “Under these circumstances”, it concluded “it was reasonable

for the officers to believe that ... Terrell had not just ‘merely

acquiesced’ to their entering her home, but had affirmatively

signaled that they had her permission to come inside and locate ...

Dright”.    (The court also concluded “the officers were reasonable

in inquiring whether any weapons were present in the home and in

seizing the weapon belonging to [Ferguson] upon learning he was a

convicted felon”.)

     Ferguson entered a conditional guilty plea (reserved right to

appeal denial of suppression motion).               He was sentenced, inter

alia, to 63 months imprisonment.




                                         5
                                        II.

     In reviewing the denial of a suppression motion, following an

evidentiary hearing, “findings of fact are accepted unless clearly

erroneous,        [and   the]     ultimate         conclusion     as      to     the

constitutionality of the law enforcement action is reviewed de

novo”.   United States v. Orozco, 191 F.3d 578, 581 (5th Cir. 1999),

cert. denied, 528 U.S. 1144 (2000).             “We view all of the evidence

introduced at the suppression hearing in the light most favorable

to the prevailing party, in this case the government.”                 Id.

     Ferguson neither contests the district court’s crediting the

Government’s version of events nor disputes that Terrell impliedly

consented    to    the   officers’      entering    her   apartment    when      she

responded that Dright was in the bedroom and pointed in that

direction.    Rather, citing United States v. Watson, 273 F.3d 599

(5th Cir. 2001), he emphasizes that valid consent to a search

involves    two    components:       the      existence   of    consent    and   of

voluntariness.       He claims, inter alia, his conviction must be

reversed and the case remanded because the district court erred as

a matter of law in not addressing the voluntariness vel non of

Terrell’s implied consent.        (In the alternative, Ferguson claims:

the implied consent was involuntary; therefore, his conviction

should be reversed and judgment rendered in his favor.                         This

alternative   claim      is   without    merit.      As   discussed    below,     we




                                         6
conclude the district court found the consent was voluntary.            That

finding was not clearly erroneous.)

     Watson, which also involved a guilty-plea conviction to §

922(g)(1) charges, explained:

          The government bears the burden of proving the
          existence of voluntary consent to a search;
          proof must be by a preponderance of evidence.
          It is not enough to show the mere existence of
          consent; the government also must show that
          consent was freely and voluntarily given.

Id. at 603-04 (internal quotation marks and citations omitted;

emphasis added).     Addressing the disposition of the suppression

motion, Watson noted:    “The district court did not clearly err in

finding ... that Watson consented, but the court did not consider

voluntariness”.     Id. at 604 (emphasis added).             Rather, it had

“apparently conflated the question of voluntariness with that of

the mere existence of consent”. Id.            “Therefore, [the Watson court

could not] accept the finding that there was a sufficient degree of

consent to justify the search.”          Id.    Accordingly, it vacated the

conviction   and   remanded   for   a       voluntariness   determination   in

accordance with the guiding factors stated in United States v.

Ponce, 8 F.3d 989 (5th Cir. 1993):

          (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 consent; (5) the defendant’s education
          and intelligence; and (6) the defendant’s


                                        7
              belief that no incriminating evidence will be
              found.

Id. at 997.

      Voluntariness vel non is a question of fact, reviewed only for

clear error.        United States v. Tompkins, 130 F.3d 117, 120 (5th

Cir. 1997), cert. denied, 523 U.S. 1036 (1998). Here, although the

district court did not expressly address the voluntariness factors,

it did note the voluntariness requirement in its order denying the

suppression motion:         “Consent to a warrantless search must be

voluntary and may be express or implied.... In determining whether

consent is voluntary, the Court looks to the totality of the

circumstances to assess whether the defendant has freely given

consent”.      (Emphasis added.)

      The order was attuned primarily to whether the existence of

consent was implied by Terrell’s conduct.            On the other hand, in

the   light    of    the   record,   the   careful   consideration   of   the

suppression motion by the district court, and its acknowledging the

voluntariness requirement, we are satisfied the district court

considered that requirement and found the consent was voluntary.

As noted supra, that finding was not clearly erroneous.

                                      III.

      For the foregoing reasons, the judgment is

                                                              AFFIRMED.




                                       8
