     Case: 13-10811      Document: 00512636683         Page: 1    Date Filed: 05/20/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                    No. 13-10811                                May 20, 2014
                                  Summary Calendar                             Lyle W. Cayce
                                                                                    Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee
v.

QUAYLAN ANDERSON,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                           U.S.D.C. No. 3:12-CR-234-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Quaylan Anderson (“Defendant”) pleaded guilty to one charge of
Producing Child Pornography in violation of 18 U.S.C. § 2251(a) and (e). He
challenges the denial of his motion for suppression of the evidence. We
AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 I. Background
      A thirteen-year-old girl known as “Jane Doe” (“Doe”) ran away from her
foster home.   Doe was accompanied by an eighteen-year-old female ward,
known as “RW.” Three days later, while attempting to locate Doe, Texas police
officers received information from RW leading them to believe that Doe was in
a home belonging to Defendant’s grandmother, Mamie Anderson (“Anderson”).
      Officers J. Acosta (“Acosta”) and A. Woods (“Woods”) asked Anderson for
permission to enter the home and search for Doe.            Anderson refused the
request, telling the officers that they would have to obtain a search warrant to
enter. She also insisted that Doe was not in the house. After Anderson refused
entry, Acosta and Woods left and called their duty supervisor, Officer C.
Huerta (“Huerta”), to assist them. In the meantime, RW told police that Doe
had engaged in sexual intercourse with the 24-year old Defendant earlier that
day. In light of this information, the officers again attempted to get consent
from Anderson to enter the home; she again refused. At this point, Acosta
handed Anderson a portable phone and had her speak with his supervisor,
Sergeant T.C. May (“May”). After speaking with May, Anderson allowed the
officers into her home to search for Doe.
      The officers located Doe in a locked bedroom with Defendant, who was
placed under arrest. Doe told the officers that Defendant had engaged in
intercourse with her and that he had recorded it on his cellular phone. The
officers sought, obtained, and executed a search warrant to return to the home
and collect and search the cellular phone. Defendant was charged with
Production of Child Pornography in violation of § 2251(a) and (e) and Sex
Trafficking of a Minor in violation of 18 U.S.C. § 1591(a), (b)(1), and (b)(2).
      Defendant moved to suppress the evidence obtained as a result of the
search of Anderson’s home as well as the evidence acquired from the
subsequent search warrant.       At the suppression hearing, there was some
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                                 No. 13-10811
dispute over what exactly May said to Anderson in order to obtain her consent.
Anderson’s side of the conversation was recorded by officers at the home, but
May’s side was not recorded. He testified that he attempted to gain Anderson’s
consent first by advising her that she could be arrested if Doe was found in the
house and Anderson knowingly concealed that information from the police.
After Anderson still refused to consent, May appealed to Anderson as a
grandmother, asking her whether she would want the police to do everything
they could to find her granddaughter. According to May and Huerta, it was
this appeal that led to Anderson’s consent, which was corroborated by the
recording reflecting her statement that “of course I would,” and then saying
“ok, I’m going to let them in and look ‘cause I haven’t seen nobody so I don’t
have anything to hide.” She then stepped aside and allowed the officers to
enter her house. Acosta also testified.
      Anderson, on the other hand, testified that she only consented because
May threatened to put her under arrest for refusing to consent to the search,
regardless of whether she knew of Doe’s whereabouts. Based on the evidence
presented, the trial court found the testimony of May and Huerta to be credible
and corroborated by the video evidence. It also found that Acosta’s testimony
supported May and Huerta’s testimony. Finally, the trial court did not find
Anderson to be a credible witness because the video evidence indicated that
she consented as a result of May’s appeal to Anderson’s emotions, rather than
his statements that she could be arrested for harboring Doe.
      After the trial court denied his motion to suppress the evidence,
Defendant pleaded guilty, pursuant to a plea agreement reserving his right to
appeal the suppression ruling, to one count of production of child pornography
and was sentenced. He now appeals the district court’s denial of the motion to
suppress the evidence, asserting that the police conducted an illegal search of


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                                  No. 13-10811
Anderson’s home and that the government failed to turn over Brady
information related to Acosta’s credibility.
                                  II. Discussion
A. Voluntariness of the Consent
      The district court found that Anderson’s consent was given voluntarily
and that, in the alternative, exigent circumstances existed to enter Anderson’s
home given RW’s indication that Defendant was engaging in sexual
intercourse with a minor, Doe. In reviewing a denial of a motion to suppress
the evidence, we review factual findings, including credibility choices, for clear
error. United States v. Solis, 299 F.3d 420, 435 (5th Cir. 2002). “A factual
finding is not clearly erroneous as long as it is plausible in light of the record
as a whole.” United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). We
view the evidence in the light most favorable to the prevailing party. Id.
      Warrantless searches are not considered per se unreasonable when the
search is conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S.
218, 219 (1973). Whether the consent was voluntary is a question of fact to be
determined by the totality of the circumstances.         Id. at 227.    Defendant
challenges the voluntariness of Anderson’s consent, arguing that the police
procedures were coercive because May threatened to arrest Anderson if she
refused consent. However, the district court found that May told Anderson she
would be arrested only if she knew Doe was in her house; the district court also
explicitly rejected Anderson’s testimony that May threatened to arrest her
regardless of her knowledge. There was no clear error in the district court’s
determination since it was a plausible credibility determination in light of the
evidence. See Jacquinot, 258 F.3d at 427. Furthermore, the evidence supports
the district court’s determination that Anderson’s will was not overborne by
May’s statement that she could be arrested if she was knowingly concealing
Doe because Anderson continued to refuse consent until May appealed to her
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                                       No. 13-10811
emotions. Because there is no clear error, we affirm the district court’s finding
that Anderson’s consent was voluntary. 1 See id.
B. Brady Claim
       Before the suppression hearing, the government received potential
Brady evidence regarding Acosta’s credibility. This information was submitted
to the district court at the suppression hearing, and after assessing the
information in camera, the district court concluded that the government had
no disclosure obligations. Defendant has requested that we independently
review the sealed materials to determine whether the district court clearly
erred in finding no disclosure obligations. See United States v. Scroggins, 485
F.3d 824, 836 (5th Cir. 2007) (conducting an independent review of information
that the district court reviewed in camera for Brady information). We review
a district court’s ruling that potential Brady material reviewed in camera is
not discoverable only for clear error. See United States v. Brown, 650 F.3d 581,
589 (5th Cir. 2011).
       To prevail, Defendant would need to show that the district court clearly
erred in concluding, inter alia, that the undisclosed evidence was material. See
United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006). “Evidence is
material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different.” Rector v. Johnson, 120 F.3d 551, 562 (5th Cir. 1997) (citation and
internal quotation marks omitted). Even if the evidence under seal affected
Acosta’s credibility generally, it would not have changed the district court’s
ruling because Acosta’s testimony, which did not address the contents of the




       1For this reason, we need not reach the issue of whether the district court erred in its
alternate finding that there were exigent circumstances.

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                                  No. 13-10811
critical May—Anderson conversation 2, played no material role in determining
whether Anderson voluntarily consented. See id. Furthermore, the record
shows that Acosta’s testimony did nothing more than corroborate the
testimony provided by Huerta and May, whom the court found independently
credible, and was corroborated by the videotape evidence.              Therefore,
Defendant’s ability to undermine Acosta’s credibility in general would not have
changed the district court’s ruling. See id. The district court did not clearly
err in determining that the prosecution was under no obligation to disclose the
information. See id.
      AFFIRMED.




      2    It appears that the defense called Acosta to rebut the claim of exigent
circumstances.
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