                   REVISED DECEMBER 17, 2001
            IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT
                                        _______________

                                          m 00-20407
                                        _______________



                                UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                            VERSUS

                                 MILTON TYRONE WATSON,

                                                           Defendant-Appellant.


                                 _________________________

                          Appeal from the United States District Court
                              for the Southern District of Texas
                               _________________________
                                     November 12, 2001



Before JONES, SMITH, and DEMOSS,                   occurred.
  Circuit Judges.
                                                                         I.
JERRY E. SMITH, Circuit Judge:                        Undercover officers de la Rosa and Lott
                                                   observed police informant Lee Addison paying
   Milton Watson appeals his conviction of il-     a sum of money to Watson in exchange for il-
legal possession of firearms. Concluding that      legal narcotics. Addison had agreed to at-
the conviction is based on evidence obtained       tempt to purchase drugs while under the offi-
in possible violation of the Fourth Amend-         cers’ surveillance.
ment, we vacate and remand for further pro-
ceedings to determine whether such a violation        After witnessing the transaction, the offi-
cers radioed their superior, Sergeant Williams,         in violation of 18 U.S.C. § 924(c). The dis-
who ordered the warrantless arrest of Addison           trict court denied Watson’s motion to suppress
and Watson. Officer Morse testified that he             the evidence found in the protective sweep and
arrested Watson on the porch of his house,              search of his house, finding that (1) Watson
outside the front door, and that Watson was             was inside the house when the officers arrived,
“coming toward the front door of the house              but they did not arrest him until he went out-
from the inside of the house” at the time of ar-        side, (2) the lawful arrest justified a subsequent
rest. Watson submitted an affidavit confirming          protective sweep, (3) the sweep revealed
his arrest on the front porch.                          narcotics in plain view and led the officers to
                                                        request permission to search the house further,
    Officer Coker arrested Addison on the               and (4) Watson consented to the second
porch. Officers also detained Roderick May-             search.
field, Watson’s friend, and Lincoln Streber, his
uncle, both of whom were in the vicinity of the             Watson pleaded guilty to illegal possession
house.                                                  of firearms, and the government agreed to dis-
                                                        miss the other charge. Watson reserved the
    Morse then made a protective sweep of the           right to appeal the denial of his motion to sup-
house to look for dangerous persons. Morse              press. He now challenges the constitutionality
testified that he lacked specific reason to be-         of his arrest, of the protective sweep, and of
lieve other individuals were in the house but           the more extensive later search.
that the possibility always exists. During the
sweep, Morse found boxes of Swisher cigars,                                     II.
commonly used to make marihuana cigars, and                The legality of the arrest turns in part on
gallon jugs of codeine syrup, an illegal nar-           the question whether Watson was arrested in-
cotic.                                                  side his house (as he claims) or outside (as
                                                        claimed by the government). Warrantless sei-
   After his arrest, Watson informed Williams           zures of a person inside his home are “pre-
that he lived in the house. Williams claims that        sumptively unreasonable.” Payton v. New
he requested Watson’s permission to “go into            York, 445 U.S. 573, 586 (1980). Only exigent
the bedroom and get the dope out.” Williams             circumstances or consent justify such an arrest.
told Watson that the officers had seen narcot-           Id. at 583. By contrast, an arrest outside a
ics and narcotics paraphernalia in the house.           suspect’s home is justified if the arresting of-
At the suppression hearing, Williams and the            ficers had “reasonable ground” to believe that
other officers testified that Watson had con-           he had committed a felony. United States v.
sented to the search. Streber and Mayfield              Watson, 423 U.S. 411, 417 (1976). “Probable
testified that they did not hear Williams ask for       cause for a warrantless arrest exists when the
consent, despite their close proximity to Wat-          totality of the facts and circumstances within a
son. The search uncovered crack cocaine,                police officer’s knowledge at the moment of
marihuana, and four illegal weapons.                    arrest are sufficient for a reasonable person to
                                                        conclude that the suspect had committed or
   A two-count indictment charged Watson                was committing an offense.” United States v.
with possession of firearms in violation of 18          Wadley, 59 F.3d 510, 512 (5th Cir. 1995).
U.S.C. § 922 (g)(1) and using those firearms


                                                    2
   We must defer to the district court’s factual            gality of the arrest must be upheld if the offi-
finding that Watson was arrested outside his                cers had probable cause to believe that he “had
house, on the porch,1 “unless [it is] clearly er-           committed or was committing an offense.”
roneous or influenced by an incorrect view of               Wadley, 59 F.3d at 512. The arresting officer
law.” United States v. Wilson, 36 F.3d 1298,                need only know with “fair probability” that the
1303 (5th Cir. 1994). Moreover, the facts                   defendant committed the felony, which re-
must be reviewed in the light most favorable to             quires more than a “bare suspicion” but less
the prevailing party. United States v. Gros-                than a preponderance of evidence. United
enheider, 200 F.3d 321, 326 (5th Cir. 2000).                States v. Garcia, 179 F.3d 265, 269 (5th Cir.
Under this deferential standard, there is little            1999).
doubt that the district court’s findings must be
accepted.                                                      The facts are almost identical to those of
                                                            United States v. Antone, 753 F.2d 1301, 1304
   Watson contends that he did not exit the                 (5th Cir. 1985), in which we found probable
house voluntarily and that he went onto the                 cause for an arrest that occurred after police
porch in response to an order by the arresting              had used surveillance to confirm the time,
officers. He claims that the order in itself                place, and mechanics of a drug transaction
constituted a seizure. The government, sup-                 about which they had been forewarned by an
ported by the testimony of the arresting offi-              informant.3 Similarly, the police observed
cers, claims that Watson voluntarily exited the             Watson and Addison exchanging money for a
house immediately before the arrest. Because                promised delivery of illegal drugs, and there is
Watson fails to offer independent corrobora-                no doubt that the evidence was “sufficient for
tion for his account, the district court’s deci-            a reasonable person to conclude that the sus-
sion to disbelieve it and accept that of the offi-          pect had committed or was committing an of-
cers is not clearly erroneous and therefore                 fense.” Wadley, 59 F.3d at 512.
must stand.
                                                                                      III.
   Assuming, as we must, that Watson was ar-                    Regarding the legality of the protective
rested outside the house on his porch,2 the le              sweep of Watson’s house, “as an incident to
                                                            . . . arrest . . . officers [may], as a precaution-
                                                            ary measure and without probable cause or
                                                            reasonable suspicion, look in closets and other
   1
     The district court found that “[a]t the time the       spaces immediately adjoining the place of ar-
officers moved in to arrest Defendant, he was in-           rest from which an attack could be immedi-
side the house. The officers brought Defendant              ately launched.” United States v. Buie, 494
outside to arrest him.” This is not inconsistent with       U.S. 325, 334 (1990). A protective sweep of
the government’s claim that Watson was taken
outside voluntarily or with the district court’s
ultimate conclusion that the arrest was constitu-
                                                               2
tional.                                                        (...continued)
                                                            1989).
   2
     An arrest on a porch is not considered “inside”
                                                               3
the house for purposes of determining its constitu-             Cf. Stansel v. United States, 473 F.2d 1045,
tionality under the Fourth Amendment. Kirkpat-              1046 (5th Cir. 1973) (holding that drug purchase
rick v. Butler, 870 F.2d 276, 280-81 (5th Cir.              by undercover officer created probable cause).

                                                        3
a suspect’s house may be made “even if the             undertook after discovering drugs during the
arrest is made near the door but outside the           protective sweep, the government argues that
lodging” if the arresting officers “have reason-       it was justified because Watson voluntarily
able grounds to believe that there are other           consented to it. Watson contends that he did
persons present inside who might present a se-         not consent and, in the alternative, claims that
curity risk.” United States v. Merritt, 882            any consent was involuntary.
F.2d 916, 921 (5th Cir. 1989) (internal citation
omitted); see also Kirkpatrick, 870 F.2d at                 The government bears the burden of prov-
282-83 (same).                                         ing the existence of voluntary consent to a
                                                       search; proof must be by a preponderance of
   The mere presence of illegal drugs and              evidence. United States v. Yeagin, 927 F.2d
weapons does not justify a protective sweep.           798, 800 (5th Cir. 1991). It is not enough to
United States v. Munoz-Guerra, 788 F.2d 295,           show the mere existence of consent; the gov-
298 (5th Cir. 1986). But a sweep is permissi-          ernment also must show that “consent was
ble where necessary to prevent the possible            freely and voluntarily given.” United States v.
destruction of the drugs, especially where this        Ponce, 8 F.3d 989, 997 (5th Cir. 1993). A
danger is combined with reasonable concern             finding of voluntary consent must be reversed
for the safety of officers or civilians. United        if it “was clearly erroneous or influenced by an
States v. Rico, 51 F.3d 495, 504 (5th Cir.             incorrect view of law.” United States v. Sha-
1995); United States v. Vasquez, 953 F.2d              bazz, 993 F.2d 431, 439 (5th Cir. 1993).
176, 180 (5th Cir. 1992). A district court’s
finding that there was sufficient danger to               The district court did not clearly err in find-
justify a protective sweep can be overturned           ing, by a preponderance of evidence, that Wat-
only if it is “clearly erroneous.” Kirkpatrick,        son consented, but the court did not consider
870 F.2d at 283.                                       voluntariness. Therefore, we cannot accept
                                                       the finding that there was a sufficient degree of
    The police knew that Watson and Addison            consent to justify the search.
likely had entered the house with drugs, and
thus there was a possibility that drugs would              With respect to the mere existence of con-
be destroyed if not seized quickly. Moreover,          sent, the court properly relied on the testimony
the officers believed that there was a possibil-       of the three officers present, all of whom stat-
ity that Watson might have additional accom-           ed that they saw Watson give consent. Al-
plices who were still inside the house and             though Watson’s witnesses disputed the offi-
could pose a threat to the officers’ safety. Al-       cers’ accounts, the court’s decision to accept
though the factual basis for these concerns is         the officers’ testimony in preference to that of
disputable, they are reasonable enough that we         the defense witnesses was not clearly errone-
cannot say that the district court was clearly         ous.
erroneous in upholding the validity of the
sweep.                                                    In this circuit, district courts must

                      IV.                                 focus on six factors in determining
    In response to Watson’s challenge to the              whether consent to a search was volun-
full-scale search of his house that the officers          tary:


                                                   4
                                                              In summary, because Watson’s conviction
          (1) the voluntariness of the de-                 for illegal firearms possession was based solely
          fendant’s custodial status;                      on evidence discovered during the full-scale
          (2) the presence of coercive                     search of his house, 6 we VACATE the
          police procedures; (3) the ex-                   conviction and REMAND for a determination
          tent and level of the                            of the question of voluntariness.
          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 belief that
          no incriminating evidence will
          be found.

Ponce, 8 F.3d at 997. Because the district
court apparently conflated the question of vol-
untariness with that of the mere existence of
consent, it did not apply this test.
Consequently, its finding that Watson
voluntarily consented to the search of his
house must be reversed on the ground that the
ruling was “influenced by an incorrect view of
law.” United States v. Shabazz, 993 F.2d 431,
439 (5th Cir. 1993).4

    On remand, the district court will have to
consider the evidence pertaining to each of the
six factors and weigh them against each other.
It should try to determine Watson’s age and
                                                              5
education level, which do not currently appear                  (...continued)
in the record.5                                            are to be weighed if they point in conflicting direc-
                                                           tions. One obvious way is to assume that, barring
                                                           unusual circumstances, the side supported by a
   4
     See also United States v. Holloway, 962 F.2d          majority of the factors should prevail. Cf. United
451, 454 (5th Cir. 1992) (holding that “in                 States v. Casas, No. EP-99-CR-1070-DB, 1999
reviewing a district court’s ruling on a motion to         WL 33290609, at *8-*9 (W.D. Tex. Nov. 10,
suppress based on live testimony at a suppression          1999) (holding that consent was voluntary because
hearing, we do not readily accept a district court’s       three of the five relevant factors weighed in favor
factual findings if they are influenced by an              of the government).
incorrect view of law”); United States v. Elwood,
                                                              6
993 F.2d 1146, 1151 (5th Cir. 1993) (same).                     Charges based on possession of the illegal
                                                           drugs found during the protective sweep were
   5
       This court has not opined on how the factors        dropped as one of the conditions of Watson’s plea
                                      (continued...)       agreement.

                                                       5
