                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 11-12745         ELEVENTH CIRCUIT
                                                        MARCH 27, 2012
                            Non-Argument Calendar
                                                          JOHN LEY
                          ________________________
                                                           CLERK

                    Docket No. 3:10-cr-00156-MMH-TEM-1


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

      versus

PAUL MATTHEW SCHMITZ,

                                                   Defendant-Appellant.
               _________________________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
               _________________________________________

                                (March 27, 2012)

Before EDMONDSON, MARCUS, and MARTIN, Circuit Judges.


PER CURIAM:

      Paul Matthew Schmitz appeals his conviction for possession of a firearm by

a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e), for which he was
sentenced to 24 months’ imprisonment. No reversible error has been shown; we

affirm.

      On appeal, Schmitz challenges the district court’s denial of his motion to

suppress the gun and ammunition discovered during a search of his home. In

particular, Schmitz argues that the district court clearly erred in concluding that his

wife’s consent to search their home was voluntary. In considering the district

court’s denial of a motion to suppress, we review fact determinations for clear

error and application of law to the facts de novo. United States v. Boyce, 351 F.3d

1102, 1105 (11th Cir. 2003). And we construe all facts in the light most favorable

to the prevailing party below -- here, the government. Id.

      Police officers may conduct a warrantless search of a home if they first

obtain voluntary consent of a person “possessing ‘common authority’ over the

premises.” Bates v. Harvey, 518 F.3d 1233, 1244 (11th Cir. 2008). Whether

consent to a search is voluntary is a question of fact to be determined based on the

totality of the circumstances; and the government bears the burden of proving both

(1) that consent existed and (2) that the consent was voluntary and not an

acquiescence to a claim of lawful authority. United States v. Blake, 888 F.2d 795,

798 (11th Cir. 1989).




                                          2
        The record reveals that Deputy Robert Sands responded to a 911 call from

Schmitz’s neighbor accusing Schmitz of assaulting the neighbor with a gun.

When Deputy Sands ran Schmitz’s name through a computer database, he

discovered that Schmitz also had an outstanding arrest warrant for violating his

probation in connection with a previous conviction for being a felon in possession

of a firearm. Deputy Sands then knocked on the front and back doors of Schmitz’s

home and -- when no one answered -- had dispatch contact Schmitz’s wife to

determine Schmitz’s whereabouts and to ask her to come home.1 When Mrs.

Schmitz arrived home, she gave Deputy Sands permission to search the house.

After discovering ammunition, a gun holster, and marijuana seeds in the home,

Deputy Sands contacted the drug task force to continue the investigation. He also

provided information for a search warrant affidavit to conduct a more thorough

search of the house and to search a locked bunker in the back yard. While

executing the search warrant, officers found the gun at issue.

        That Mrs. Schmitz consented to a search of her home after arriving at the

scene -- including signing a permission-to-search form -- is undisputed. At the

suppression hearing, however, the magistrate judge heard conflicting testimony



    1
     Sometime after contacting Mrs. Schmitz -- but before she arrived home -- Deputy Sands
discovered Schmitz hiding at a neighbor’s house and arrested him.

                                            3
about whether her consent was indeed voluntary. According to Deputy Sands,

only two marked patrol cars were parked on the street when Mrs. Schmitz arrived

home and Deputy Sands was the only officer involved in obtaining her consent.

Deputy Sands treated Mrs. Schmitz politely, never raised his voice, kept his

weapons holstered, allowed her to use her phone to call family and friends, and

never threatened to arrest her. Although Mrs. Schmitz was crying and upset when

she first arrived home, she calmed down and stopped crying before consenting to

the search. Deputy Sands also testified unequivocally that he read the entire

consent form to Mrs. Schmitz, including informing her that she had a right to

refuse a search.

       Mrs. Schmitz, on the other hand, testified that 9 or 10 police cars were

parked in front of her home when she arrived. She stated that two uniformed

officers -- Deputy Sands and Officer Bunton2 -- spoke with her about consenting

to a search and that she believed that she had no choice but to consent because

Deputy Sands promised not to arrest her if she cooperated. She contended that she

was terrified, crying hysterically, and shaking so much when she signed the



  2
   Officer Ryan Bunton, a member of the drug task force, testified that he was wearing plain clothes
on the day of the search and that he was not present when Mrs. Schmitz consented to the search or
during the initial search of the home. In fact, Officer Bunton did not speak with Mrs. Schmitz until
after the task force had obtained and executed the search warrant.

                                                 4
consent form that she had to steady her right hand with her left just to sign her

name. On direct examination, Mrs. Schmitz testified that the officers never read

her the consent form, but later -- in response to the magistrate judge’s inquiry --

stated that she was not sure whether they read her the form or not.

      After considering the testimony of the witnesses, the magistrate judge

credited Deputy Sands’s version of the events over Mrs. Schmitz’s testimony and,

thus, concluded that Mrs. Schmitz’s consent was voluntarily obtained. In

particular, the magistrate decided not to credit Mrs. Schmitz’s testimony because

she could not recall the events at issue with precision, her testimony wavered, her

testimony was “not completely forthright,” and she had a personal interest in the

outcome of the case.

      “Credibility determinations are typically the province of the fact finder

because the fact finder personally observes the testimony and is thus in a better

position than a reviewing court to assess the credibility of witnesses.” United

States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). Where the

testimony of two witnesses is in “direct conflict,” the district court’s credibility

determination “is conclusive on the appellate court unless the judge credits

exceedingly improbable testimony.” Id. Thus, “we must accept the evidence




                                           5
unless it is contrary to the laws of nature, or is so inconsistent or improbable on its

face that no reasonable factfinder could accept it.” Id.

      In this case, Deputy Sands’s testimony conflicted directly with Mrs.

Schmitz’s testimony. Because we are unconvinced that Deputy Sands’s version of

the events was “exceedingly improbable” or “contrary to the laws of nature,” the

district court’s credibility determination is entitled to our deference. See id.

      We also reject Schmitz’s argument that Deputy Sands’s testimony was

inherently unreliable because he either knowingly allowed false information to be

included in a search warrant affidavit, or acted with reckless disregard for the truth

when he told the officer preparing the affidavit that Schmitz threatened his

neighbor with a gun. First, the search warrant affidavit reflected accurately that

the neighbor’s story was just an accusation and did not indicate that evidence

existed yet to corroborate that accusation.

      Second, we are unpersuaded that Deputy Sands should have realized that the

neighbor was allegedly lying after seeing the large opaque tarp that would have

blocked the neighbor’s view of Schmitz. As the magistrate judge noted, although

Deputy Sands noticed the tarp in Schmitz’s back yard as he approached Schmitz’s

back door, he was focused on searching for a man who “(1) was a convicted felon;

(2) had an outstanding felony warrant for his arrest . . . ; (3) may have just

                                           6
threatened to kill his neighbor with a handgun; and (4) was not answering his door

or otherwise presenting himself to law enforcement.” We agree that Deputy

Sands’s approach was reasonable and we will not second-guess decisions he made

in the field. See United States v. Sharpe, 105 S.Ct. 1568, 1575-76 (1985).

       Considering the totality of the circumstances and construing the evidence in

the light most favorable to the government, the district court did not clearly err in

concluding that Mrs. Schmitz’s consent was voluntary.3

       AFFIRMED.




  3
   Because we conclude that Mrs. Schmitz’s consent was obtained voluntarily, we need not address
Schmitz’s argument that -- absent the information gathered as a result of Mrs. Schmitz’s coerced
consent -- the search warrant affidavit failed to establish probable cause.

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