                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 05a0271n.06
                                Filed: April 8, 2005

                                                          No. 04-5713

                                  UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                                )
                                                                         )
                 Plaintiff-Appellee,                                     )
                                                                         ) On Appeal from the United States
v.                                                                       ) District Court for the Eastern
                                                                         ) District of Tennessee
GARY W. HIGGINS,                                                         )
                                                                         )
                 Defendant-Appellant.                                    )


Before: BOGGS, Chief Judge; MARTIN, Circuit Judge; and WEBER, District Judge.1


PER CURIAM.

       Defendant-Appellant Gary W. Higgins brings this appeal from a district court order denying

his motion to suppress evidence seized from his residence, as well as his subsequent statements. For

the reasons stated below, we AFFIRM Higgins’s conviction.

                                                                  I.

       Pursuant to a plea agreement in the trial court, Defendant Higgins pleaded guilty to one count

of possession of a firearm by a convicted felon under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), but

reserved his right to appeal the denial of his motion to suppress. On appeal, he presents that single

issue, urging that the district court erred by failing to suppress evidence obtained by the government

through a warrantless search of his residence. A United States magistrate judge held an evidentiary


       1
        The Honorable Herman J. Weber, Senior United States District Judge for the Southern District of Ohio, sitting by designation.
hearing on Defendant’s motion to suppress, and issued a report and recommendation concluding that

Defendant’s signed consent to the search that yielded the guns in question “was voluntary and

knowing in all respects.” The district court adopted that conclusion in denying Higgins’s motion to

suppress. That court’s findings can be summarized as follows:

       On October 29, 2003, Deputy Tim Davis responded to a radio dispatch indicating a
       report of an individual firing a shot into a vehicle. In response to the call, Deputy
       Davis met the alleged victims, three male juveniles, at Chuckey Elementary School,
       which was near the site of the alleged shooting. The driver of the vehicle indicated
       to Deputy Davis that Gary Higgins had fired at his vehicle as they drove by Mr.
       Higgins’ residence on Stone Dam Road near its intersection with Milligan Road.
       Deputy Davis observed a hole of approximately .38 caliber size just behind the
       driver’s side door of the vehicle.

       Deputy Davis met up with Sergeant Milligan, who coincidentally resides on Milligan
       Road, knew the defendant, and was aware that the defendant was a convicted felon.
       Deputy Davis contacted Detective John Huffine, relayed the foregoing information,
       and sought instructions. As a result, Deputy Davis and Sergeant Milligan proceeded
       to the defendant’s residence, while the juveniles were told to report to the sheriff’s
       office in Greeneville.

       When Davis and Milligan arrived at the defendant’s residence, and began approaching
       the front door of the single-wide trailer, the defendant exited his home, and met the
       officers in the front yard.

       While the defendant maintains that Sergeant Milligan had his weapon drawn, the
       officers testified that he did not. Even so, the defendant acknowledged that he
       approached the officers despite Milligan having his pistol out, and that Milligan
       returned the pistol to its holster.

       Officer Davis inquired as to whether there had been any problems earlier in the day.
       The defendant indicated that he had experienced problems with some juveniles,
       indicating that they had broken into his trailer. He went on to name one of the boys
       with whom officer Davis had spoken earlier. The defendant denied shooting at the
       vehicle.

       Deputy Davis asked if the defendant had any weapons on his person, to which
       defendant responded no. Davis testified that the defendant consented to a
       precautionary pat down, which the defendant did not dispute. It is undisputed that
       Deputy Davis removed some .38 caliber ammunition from the defendant’s front
       pocket. What is disputed is whether Davis removed the shells before or after the

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defendant was handcuffed. However, it is undisputed that the pat down occurred
before the defendant was handcuffed, and Deputy Davis testified that he felt
ammunition in the defendant’s pocket during the pat down. According to Deputy
Davis, during the pat down, he asked the defendant whether those were bullets in his
pocket, to which the defendant responded yes.

Deputy Davis handcuffed the defendant and advised him of his Miranda rights. Davis
then asked the defendant for permission to search his home, which the defendant
refused to give. Davis then contacted Detective Huffine again to see if a search
warrant could be obtained. Davis was instructed to secure the house while Huffine
commenced obtaining a search warrant.

Davis then indicated to the defendant that a search warrant would be obtained, and
again requested permission to search the residence, but the defendant again refused.

Next the defendant’s sixteen-year-old son arrived, who was the only other resident of
the home. The son requested to enter the home to change into his work clothes, but
the officers refused. The son, perhaps with some encouragement from the officers,
encouraged his father to consent to the search, and even offered to enter the house and
bring the guns out, but the officers declined the offer. Thereafter the son left.

Deputy Davis acknowledged that he typically used language in such situations
suggesting that things could be done “the easy way or the hard way,” meaning that the
search could be done either by consent or by warrant. Davis explained to the
defendant that if he consented to the search, Davis would inform the federal
authorities of the defendant’s cooperation, to aid him in the federal prosecution that
was likely to follow.

The defendant complained that the handcuffs were too tight, and Deputy Davis
loosened them, though the defendant disputes when this was done. According to
Deputy Davis, the defendant indicated that if Davis would handcuff the defendant’s
hands in front, rather than behind his back, he would consent to the search. However,
the defendant testified that he consented to the search, and only then were his hands
cuffed in front in order to allow him to sign the consent form. Even the defendant
admitted that he commented on Deputy Davis’s honesty with him as a motivation for
signing the consent to search form. In fact, the defendant did not really point to any
coercive statements by the officers, only the defendant’s own subjective belief of what
the officers meant by statements to him.

After entering the house with the officers, the defendant was very cooperative. The
officers permitted him to sit on the couch, from where the defendant reached down
and picked up a shoe containing a handgun, which he handed to the officers. The
defendant also indicated that another weapon was located in the pocket of his jacket,
which was hanging in the front room.

                                          3
See United States v. Higgins, No. 2:03-CR-95 (E.D. Tenn. Feb. 3, 2004) (order adopting report and

recommendation and denying motion to suppress). At the sentencing on June 10, 2004, Higgins

admitted all facts alleged in the indictment and the statement of facts presented pursuant to Rule 11

of the Federal Rules of Criminal Procedure, as required by the terms of his plea agreement. The

district court sentenced Higgins under the Federal Sentencing Guidelines to a term of imprisonment

of 12 months and one day, followed by three years of supervised release.

                                                   II.

          In reviewing a district court’s decision relative to a motion to suppress, this Court reviews

findings of fact for clear error and conclusions of law de novo. United States v. Stewart, 306 F.3d

295, 304 (6th Cir. 2002). Where the district court has denied a motion to suppress, “the appellate

court must consider the evidence in the light most favorable to the government.” United States v.

Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc). A “factual finding is clearly erroneous when the

reviewing court is left with the definite and firm conviction that a mistake has been made.” United

States v. Smith, 263 F.3d 571, 581 (6th Cir. 2001).

          Although warrantless searches presumptively are illegal, Katz v. United States, 389 U.S. 347

(1967), an exception has been recognized where an individual voluntarily consents to a search.

United States v. Van Shutters, 163 F.3d 331, 335 (6th Cir. 1998). The government bears the burden

of demonstrating that the consent was given freely and voluntarily, not as the result of coercion or

duress. United States v. McCaleb, 552 F.2d 717, 720 (6th Cir. 1977). If a defendant claims that his

consent to a search was invalid, the court must ascertain from the “totality of all the circumstances”

whether his consent was knowing and voluntarily. United States v. Mendenhall, 446 U.S. 544, 557

(1980).


                                                    4
       Our de novo review confirms that the district court’s conclusion that Higgins voluntarily

consented to the search of his residence was based upon the court’s assessment of the credibility of

witnesses who gave conflicting testimony regarding the circumstances surrounding Higgins’s

consent. Aside from such credibility questions which the court reasonably determined against the

defendant, the only evidence offered by the defendant to suggest coercion or duress was his own

perception that Deputy Davis’s allusion to “the easy way or the hard way” might have meant

something other than with consent versus with a warrant. Under the law of this Circuit, however,

“the defendant must show more than a subjective belief of coercion, but also some objectively

improper action on the part of the police.” United States v. Crowder, 62 F.3d 782, 787 (6th Cir.

1995). We agree with the district court’s conclusion that the defendant failed do so in this particular

case. See United States v. Salvo, 133 F.3d 943, 953-54 (6th Cir. 1998). We therefore AFFIRM the

district court order denying Higgins’s motion to suppress.




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