            Case: 12-13710   Date Filed: 02/27/2013   Page: 1 of 6

                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13710
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:11-cr-00340-CG-B-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

WALTER EUGENE STONE,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                             (February 27, 2013)

Before CARNES, HULL, and JORDAN, Circuit Judges.

PER CURIAM:
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      Walter Stone appeals his conviction for possession of an unregistered

firearm in violation of 26 U.S.C. § 5861(d). He contends that the firearm was

found during an illegal search of his home.

                                          I.

      On August 2, 2011 Baldwin County Sheriff’s Deputies Clarence Herring and

Jason Selph went to Stone’s home to execute an arrest warrant. The arrest warrant

was issued because Stone was having contact with minors in violation of

conditions imposed on his bond after he was charged with sexual abuse of a child

under the age of 12. When the deputies arrived at Stone’s home, they knocked on

the door and a boy who appeared to be about 8 years old opened the door. The boy

told Deputy Herring that Stone was his uncle and that he was living there. Deputy

Herring asked if Stone was in the house, and the boy indicated that he was. A girl

who appeared to be about 10 or 11 years old then appeared at the door, followed by

Stone. Deputy Herring asked Stone to step outside, and placed him into custody

and put him the back of his patrol car.

      Deputy Herring then called the Baldwin County District Attorney’s Office to

ask what he should do about the fact two children appeared to be living in Stone’s

home. An assistant district attorney told him to make sure the children had a safe

place to live. Deputy Herring went back to the front door and spoke with Mrs.




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Stone1 to ask permission to see where the children were staying. Mrs. Stone

consented and pointed to the children’s bedroom. According to Deputy Herring,

Mrs. Stone consented to his entering the bedroom to look around, but according to

her, she told him that he could only open the door and look inside.

      Deputy Herring then entered the bedroom, where he observed a gun rack

hanging on the wall. The gun rack was next to the doorway and would not have

been visible if Deputy Herring had not gone inside the room. On the gun rack

were four firearms, including a sawed-off shotgun that was not registered in the

National Firearms Registration Transfer Record. The children told the deputy that

the guns belonged to Stone, but Mrs. Stone claimed that they belonged to her son.

Deputy Herring obtained written consent from Mrs. Stone to search the entire

house, and then went to speak with Stone, who admitted that the firearms in the

bedroom belonged to him.

                                                II.

      Stone was indicted for possession of an unregistered firearm in violation of

26 U.S.C. § 5861(d). Stone moved to suppress the sawed-off shotgun, contending

that the search of the bedroom was unlawful because Deputy Herring exceeded the

scope of Mrs. Stone’s verbal consent. After conducting an evidentiary hearing and

hearing testimony from Mrs. Stone, Deputy Herring, and Deputy Selph, the court


      1
          To avoid confusion, we refer to the defendant as “Stone” and his wife as “Mrs. Stone.”
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denied the motion to suppress. Stone then pleaded guilty to the charged offense

but reserved the right to appeal the denial of the motion to suppress. This is his

appeal.

      The district court’s ruling on the motion to suppress presents a mixed

question of law and fact. United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir.

2009). We review its factual findings for clear error, viewing the facts in the light

most favorable to the prevailing party, which in this case is the government. Id.

We review de novo its conclusions of law. Id.

      The Fourth Amendment protects a person’s right to be free from

“unreasonable searches and seizures.” U.S. Const. Amend. IV. A search of a

person’s home is not unreasonable and does not violate the Fourth Amendment

when there is valid consent. Stone does not dispute that Mrs. Stone had the

authority to consent to the search of the home or the children’s bedroom. See

United States v. Backus, 349 F.3d 1298, 1299 (11th Cir. 2003) (“A spouse who

jointly owns and occupies the marital home with the defendant may consent to a

search of it with the same effect as if the defendant himself had done so.”). The

only issue before us is whether Deputy Herring’s entry into the bedroom exceeded

the scope of Mrs. Stone’s verbal consent.

      The district court heard conflicting testimony on that issue at the evidentiary

hearing. Mrs. Stone testified that Deputy Herring asked if he could “push the door


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open and look” inside the bedroom, and that she consented only to that. Deputy

Herring testified that Mrs. Stone never limited her permission to his standing at the

door and looking inside. He also testified that when he entered the bedroom she

did not object. The district court credited Deputy Herring’s testimony and

concluded that Mrs. Stone had consented to his entering the bedroom.

      The district court’s determination that Deputy Herring’s testimony was more

credible than Mrs. Stone’s is not “contrary to the laws of nature” or “so

inconsistent or improbable on its face that no reasonable factfinder could accept

it.” United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004); see also United

States v. Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012) (stating that “we afford

substantial deference to the factfinder’s credibility determinations”); Owens v.

Wainwright, 698 F.2d 1111, 1113 (11th Cir. 1983) (“Appellate courts reviewing a

cold record give particular deference to credibility determinations of a fact-finder

who had the opportunity to see live testimony.”). Accordingly, the district court

did not clearly err by finding that the deputy’s entry into the bedroom was within

the scope of Mrs. Stone’s consent. Pineiro, 389 F.3d at 1366; see also United

States v. Foster, 155 F.3d 1329, 1331 (11th Cir. 1998) (“Where the evidence has

two possible interpretations, the district court’s choice between them cannot be

clearly erroneous.”) Because the district court did not clearly err by concluding




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that Mrs. Stone consented to the search, we affirm its denial of the motion to

suppress and Stone’s conviction.

      AFFIRMED.




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