                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0793n.06
                           Filed: October 24, 2006

                                            No. 05-6587

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                 )        UNITED STATES DISTRICT
                                                           )        COURT FOR THE MIDDLE
               v.                                          )        DISTRICT OF TENNESSEE
                                                           )
STEWART SIMMONS,                                           )
                                                           )
      Defendant-Appellant.                                 )
___________________________________________



BEFORE: MERRITT, SUTTON, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Defendant-appellant Stewart Simmons pleaded guilty to one count of possession with intent

to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). He now appeals

the order of the district court denying his motion to suppress evidence found in a vehicle after he was

stopped and ticketed for speeding. Defendant purportedly consented to a warrantless search of the

car, which yielded two kilograms of cocaine in a suitcase in the backseat of the car. Defendant does

not challenge the district court’s findings that there was probable cause for the traffic stop and that

the length of the stop was reasonable. Instead, defendant claims that his alleged “consent” was

ambiguous and equivocal and, thus, an invalid justification for the warrantless search. Further, he
No. 05-6587
United States v. Simmons


asserts that his alleged consent, if deemed legitimate, did not extend to a search of the closed

suitcase. For the reasons set forth below, we affirm.

                                                I.

       On February 17, 2005, at approximately 8:50 a.m., defendant, while traveling westbound in

a Ford Expedition on Interstate 24 in Rutherford County, Tennessee, passed an unmarked patrol car

at a speed in excess of 82 miles per hour, in violation of the 70 miles-per-hour speed limit.

Rutherford County Deputy Lee Young activated his lights and pulled defendant over to the side of

the highway. Deputy Young, who was trained in drug interdiction, was uniformed, armed, and

accompanied by a drug-detection dog. The patrol car was equipped with video and audio equipment

that Deputy Young activated prior to stopping defendant’s vehicle.

       Deputy Young approached the driver’s-side door. When defendant lowered the window,

Deputy Young was overwhelmed by the strong odor of air freshener and observed multiple air

fresheners hanging from the mirror. Deputy Young engaged in conversation with defendant, who

was the sole occupant of the vehicle, regarding the reason for the stop. Deputy Young explained the

violation and requested identification. Defendant produced his valid driver’s license and car

registration, which was in another person’s name. Defendant informed Deputy Young that he had

borrowed the vehicle from a friend to use for five or six days while visiting his daughter in

Kentucky.

       Several observations aroused Deputy Young’s suspicions that illegal activity might be afoot.

When defendant produced his driver’s license, he was, by Deputy Young’s account, nervous and


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shaking. The odor from the air fresheners was breathtaking and, in Deputy Young’s experience,

indicated that defendant might be attempting to disguise the odor of illegal narcotics. In the course

of looking for the registration, defendant pulled down the visor, which revealed a booking card from

Georgia with a photo of a black male on it. Deputy Young observed that defendant surreptitiously

closed the visor. Finally, Deputy Young found it unusual that such an immaculately-kept vehicle

would be loaned out to another individual for an extended period of time.

       Deputy Young retained defendant’s license and directed defendant to move his vehicle onto

the grass shoulder for safety reasons. He then had defendant stand between the two vehicles, in front

of the patrol car, where the video and audio recorded their images and conversation. Standing next

to defendant, Young wrote out a speeding citation.1 While doing so, he questioned defendant about

where he was going, why he was going there, who owned the vehicle, and what his employment was.

Deputy Young advised defendant that he not only enforced traffic violations, but also investigated

“secondary crimes” in vehicles and asked defendant if there was any illegal contraband in the car,

such as firearms, illegal drugs, or large sums of money. Defendant denied transporting such items.

Deputy Young next inquired whether defendant or anyone associated with the car used illegal drugs

that the deputy’s drug dog might “hit on,” and defendant answered “no.” Deputy Young then asked

defendant, “Do you have any problem with me searching?” Defendant responded that he had “no




       1
          It is undisputed that defendant admitted to Deputy Young that he exceeded the speed limit,
telling the deputy that he was traveling with his cruise control set at approximately 78 miles per hour.


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problem” with such a search. Immediately thereafter, defendant consented to a body search, which

yielded no illegal items or weapons.

       Deputy Young searched the vehicle by first opening the driver’s door. Having found, in

previous instances, narcotics in vehicle doorways, Deputy Young sought to roll down the electric

windows, but had to return to defendant to retrieve the keys in order to start the car to open the

windows. Defendant gave him the keys without protest, and Deputy Young searched the front

compartment of the vehicle. He then turned his attention to the back seat area, where he found a

suitcase. He opened it up by undoing the zipper and found a variety of clothes and two taped

packages containing a compressed white powder, ultimately determined to be two kilograms of

cocaine.

       Deputy Young returned to defendant and placed him under arrest. While handcuffing

defendant, Deputy Young advised him of his Miranda rights and moved defendant off to the side

of the car beyond the visual range of the video. The deputy asked defendant whether he was carrying

the drugs for friends or family; defendant responded “no” and requested an attorney. Deputy Young

then asked two additional questions, to which defendant provided short answers and again requested

an attorney. At this time, all questioning ceased.

       Defendant was charged in federal court with one count of possession with the intent to

distribute more than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1). Defendant filed

a motion to suppress the evidence and statements obtained during the traffic stop, alleging that he

did not voluntarily consent to the search of the vehicle and suitcase.


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       On June 20, 2005, the district court held an evidentiary hearing on defendant’s motion. The

evidence presented at the hearing consisted of the testimony of Deputy Young and the videotape and

audio of the traffic stop, which was played during Deputy Young’s testimony.2 The videotape

displayed the continuous running time of the events in question. The district court found, consistent

with the times indicated on the video, that no more than five minutes passed between the time that

Deputy Young stopped defendant’s car and the time defendant gave his consent to search the vehicle.

       At the conclusion of the hearing, the district court denied defendant’s motion to suppress the

cocaine seized following the warrantless search of the car and the suitcase, but ordered that

defendant’s suppression motion be granted with regard to the statements made by defendant to

Deputy Young after he requested counsel.3 In its oral decision, the district court found there was

probable cause for the traffic stop. The court further found that the length of the stop was minimal

and reasonable and did not amount to a Fourth Amendment violation. The court further held that

defendant consented to the search – first verbally and then, after the search had commenced,

nonverbally by turning over the car keys. The court held that this consent was voluntary, noting that,

as reflected in the videotape, the questioning by Deputy Young was not coercive or overbearing, but

polite and business-like. The court further adjudged, from the totality of the circumstances, that “in


       2
        As the evidentiary hearing record indicates, the audio system apparently was not functioning
properly during the traffic stop. Although some of the conversation between Deputy Young and
defendant was comprehensible, the district court relied on Deputy Young’s testimony regarding the
dialogue.
       3
        The district court’s suppression of defendant’s statements is not an issue on appeal before
this court.

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the context of this case where the officer made it clear he wanted to search for drugs[,] that the

search of the suitcase was within the scope of the consent.”

       On July 18, 2005, defendant entered a plea of guilty to the indictment, reserving his right to

appeal the district court’s denial of his motion to suppress the evidence. On October 7, 2005, the

court sentenced defendant to a five-year term of imprisonment. Defendant now timely appeals.

                                                  II.

       Defendant first contends that the district court erred in denying his motion to suppress the

evidence because the government did not meet its burden of proving by clear and positive testimony

that defendant gave Deputy Young unequivocal and specific consent to search his vehicle.

       In reviewing the denial of a motion to suppress, this court reviews the district court’s factual

findings for clear error and its legal conclusions de novo. United States v. Carter, 378 F.3d 584, 587

(6th Cir. 2004) (en banc).4 In such a review, this court considers the evidence in the light most

favorable to the government. United States v. Caruthers, 458 F.3d 459, 464 (6th Cir. 2006). “‘A

factual finding will only be clearly erroneous when, although there may be evidence to support it,

the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake




       4
         Although defendant suggests that de novo review of both the factual findings and legal
conclusions is appropriate, we decline to deviate from the well-established “clearly erroneous”
standard in this case, where the central issue, the voluntariness of defendant’s consent to a search,
is a question of fact to be determined by the totality of the circumstances. United States v. Worley,
193 F.3d 380, 384-85 (6th Cir. 1999).


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has been committed.’” United States v. Pruitt, 458 F.3d 477, 480 (6th Cir. 2006) (quoting United

States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999)).

       As previously noted, defendant does not challenge the district court’s findings that there was

probable cause for the traffic stop and that the length of the stop was reasonable. Defendant’s

argument focuses solely on the viability of his consent to the search. As explained in United States

v. Erwin, 155 F.3d 818 (6th Cir. 1998) (en banc):

       A law enforcement officer does not violate the Fourth Amendment merely by
       approaching an individual, even when there is no reasonable suspicion that a crime
       has been committed, and asking him whether he is willing to answer some questions.
       This includes a request for consent to search the individual’s vehicle. . . . And, this
       consent is not vitiated merely because the valid suspicion of wrongdoing for which
       an individual has been stopped proves to be unfounded or does not result in
       prosecution and the individual is free to go before being asked. Of course, when a
       law enforcement officer no longer has any reasonable suspicion of criminal activity,
       the detained individual is constitutionally free to leave, and if the officer rejects the
       individual’s indication that he would like to leave, valid consent can no longer be
       obtained. The fruits of a search conducted under these circumstances would have to
       be suppressed.

Id. at 823 (citations omitted).

       Whether consent to a search was in fact voluntary or was the product of duress or coercion

is a question of fact to be determined from the totality of the circumstances. Id. This court will not

reverse the district court’s findings in this regard absent clear error. Worley, 193 F.3d at 384. In

order to justify a search by consent, the government must prove by “clear and positive testimony”

that the consent was voluntary and “unequivocally, specifically, and intelligently given,

uncontaminated by any duress and coercion.” Id. at 385-86 (internal citations omitted). Factors that

the court should consider in assessing the validity of consent include the age, intelligence, and

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education of the individual; whether the individual understands the right to refuse to consent;

whether the individual understands his constitutional rights; the length and nature of detention; and,

the use of coercive or punishing conduct by the police. Id. at 386. “The defendant’s knowledge of

his right to refuse to consent is a factor, but the government need not prove that the defendant had

such knowledge to establish that consent was voluntary.” Erwin, 155 F.3d at 823.

       The core of defendant’s argument is that Deputy Young’s series of investigatory questions

– (1) do you have drugs in the car?; (2) do you have reason to think there is a scent my dog would

“hit on”?; and, (3) do you have a problem with me searching? – were posed in such a manner that

they were ambiguous and generated an ambiguous response from defendant. According to

defendant, the second question indicated that Deputy Young wanted to conduct a sniff search using

his drug dog and, when this second query is considered in conjunction with the third question, it was

reasonable for defendant to believe that the term “searching” referred to a sniff search, not a full-

blown vehicle inspection. Defendant contends that his “no problem” reply is thus rendered

equivocal by the sequence of the questions and is open to several reasonable interpretations, none

of which demonstrate specific and unequivocal consent: either defendant had no problem with a

sniff search, he was denying guilt, or he simply was acceding to authority and “conveying an

expression of futility in resistance to authority or acquiescing in the officer[’s] request” because the

officer indicated that the search was ongoing. Worley, 193 F.3d at 386. Using the analogy of a

contractual agreement, defendant asserts that the verbal exchange does not demonstrate a meeting

of the minds regarding the intended action of the deputy and defendant’s concomitant acquiescence.


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It therefore does not constitute “clear and positive proof” of the voluntary consent necessary to

justify a warrantless search of the interior of the vehicle. Defendant adds that Deputy Young

dominated the physical situation – he was uniformed and armed, he asked and phrased all of the

questions, and he continued to detain defendant when he questioned him. Defendant notes that

Deputy Young neither informed defendant of his right to withhold consent nor utilized his

department’s preprinted consent form.

       Under the totality of the circumstances, however, the record reveals none of the ambiguities

suggested by defendant. Defendant, a middle-aged male, engaged in an intelligent conversation with

Deputy Young, describing, among other things, the location of his home, his health, the

circumstances of his speeding violation, as well as his outright denial of the possession of drugs or

large quantities of money in his vehicle. Deputy Young was in the process of completing the

warning citation for speeding and was four minutes into a conversation with defendant when

defendant consented to a search of the vehicle. There was no delay beyond the time necessary for

Deputy Young to complete the purpose for the traffic stop. In a straightforward and polite manner,

Deputy Young made clear, through his questions, that he was asking for defendant’s consent to

search the vehicle for illegal drugs. There was no equivocation in defendant’s “no problem”

response and no indication that defendant misunderstood the request.

       Defendant’s reliance on Worley is misplaced. This court in Worley held that the defendant’s

response to an officer’s request to search his bag was ambiguous under the totality of the

circumstances, when the defendant replied, “You’ve got the badge, I guess you can.” This response


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differs from the unequivocal and unambiguous exchange in the instant case. Here, when defendant

was asked if he had any objection to the search, he replied “no problem.” He then, upon request and

without hesitation, provided the deputy with the car keys so that Deputy Young could access the

interior of the car to roll down the windows and search that area for illegal contraband. Under these

circumstances, defendant’s consent is “an unequivocal statement of free and voluntary consent, not

merely a response conveying an expression of futility in resistance to authority or acquiescing in the

officer[’s] request.” Id. at 386.

       Given the district court’s opportunity to assess defendant’s consent by reviewing not only the

testimony of the deputy, but the videotape and audio as well, considerable deference should be

accorded to its factual findings. United States v. Lloyd, 10 F.3d 1197, 1209 (6th Cir. 1993).

Defendant’s argument that he was unfairly finessed into consenting by the verbal gamesmanship of

an experienced officer is therefore without merit.

                                                 III.

       Defendant next contends that the district court erred in determining that the scope of his

consent extended to the search of the suitcase located in the vehicle. We disagree.

       Both parties properly note that the review standard is one of objective reasonableness:

       “When law enforcement officers rely upon consent as the basis for a warrantless
       search, the scope of the consent given determines the permissible scope of the
       search.” United States v. Gant, 112 F.3d 239, 242 (6th Cir. 1997). “The standard for
       measuring the scope of a suspect’s consent under the Fourth Amendment is that of
       objective reasonableness . . . .” Florida v. Jimeno, 500 U.S. 248, 251 (1991). The
       proper question is “what would the typical reasonable person have understood by the
       exchange between the officer and the suspect.” Id. A reasonable person likely would
       have understood his consent to exclude a search that would damage his property. See

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       id. at 251-52. Generally, the expressed object of the search defines the scope of that
       search. Id. at 251.

United States v. Garrido-Santana, 360 F.3d 565, 575-76 (6th Cir. 2004).

       A defendant’s general consent to search a vehicle has been held to encompass the vehicle’s

gas tank, Garrido-Santana, 360 F.3d at 576, and Jimeno, 500 U.S. at 252; a vehicle’s vent panel,

United States v. Pena, 920 F.2d 1509, 1514-15 (10th Cir. 1990); the interior door panel of a car,

United States v. Zapata, 180 F.3d 1237, 1243 (11th Cir. 1999); and a closed, unlocked container

within another bag, Gant, 112 F.3d at 242.

       Here, the typical reasonable person would have understood defendant’s “no problem”

response to the deputy’s questions, coupled with the physical act of handing the car keys to the

deputy without protest, to constitute a consent to search the vehicle and any containers within the

vehicle that might hold illegal contraband.

       We therefore affirm the order of the district court denying defendant’s motion to suppress

evidence.




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