                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                       FILED
                         ________________________           U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                 February 21, 2008
                                No. 07-11262                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                  D. C. Docket No. 06-00131-CR-RDP-HGD

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

PETER CHRISTIAN BOULETTE,

                                                             Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________

                              (February 21, 2008)

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Peter Christian Boulette appeals his convictions for possession with intent to
distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A),

possession with intent to distribute a substance containing methamphetamine, in

violation of § 841(a)(1) and (b)(1)(B), possession of a firearm in furtherance of a

drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), and possession of

a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal,

Boulette argues that the district court erred in finding that his girlfriend, Victoria

Thompson, voluntarily consented to a search of his apartment, and therefore, it

improperly denied Boulette’s motion to suppress evidence seized pursuant to that

search. Upon review of the record and the parties’ briefs, we discern no error.

Accordingly, we AFFIRM.

                                  I. BACKGROUND

      On March 31, 2005, agents of the Drug Enforcement Administration

(“DEA”) Task Force in Birmingham, Alabama arrested Boulette during a sting

operation in which Boulette gave a cooperating informant 220.7 grams of

methamphetamine in exchange for $7,750 in marked bills. Shortly after Boulette’s

arrest, Guy Warren, an agent with the Alabama Bureau of Investigation (“ABI”)

who was also assigned to the DEA Task Force in Birmingham, was dispatched to

Boulette’s apartment, where he was later joined by Agent Darryl Thistle. At

approximately 10:40 p.m., Agent Warren knocked on the door to Boulette’s



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apartment, and Thompson, Boulette’s live-in girlfriend, answered the door. Agent

Warren, who was wearing an ABI windbreaker, identified himself as a police

officer, and explained to Thompson that Boulette had just been arrested with a

large quantity of methamphetamine. Agent Warren told Thompson that while

conducting surveillance earlier that day, he had observed Boulette leaving the

apartment. Agent Warren asked Thompson if he could come in and talk to her, and

Thompson agreed.

      During their conversation, Agent Warren asked Thompson for her consent to

search the home. At the hearing on Boulette’s oral motion to suppress evidence

seized during the search of his apartment, Agent Warren testified that Thompson

initially was reluctant to consent to the search. Agent Warren told Thompson that

the authorities did not have any evidence that she was involved in Boulette’s drug-

related activities, but they wanted to search the apartment to remove any guns or

drugs that may be present. Thompson said that she did not believe that there were

any guns in the apartment and called her attorney in Mississippi. After speaking to

him for approximately ten minutes, Thompson gave the telephone to Agent

Warren, who explained the situation to Thompson’s attorney. After Thompson

again spoke to her attorney for about three minutes, she told Agent Warren, “you

can go ahead and search.” R2 at 61.



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      Agent Warren further testified that, notwithstanding her verbal consent to

search the apartment, Thompson declined to sign a consent form because she did

not want Boulette to know she had given consent. After Thompson again verbally

agreed to the search, Agent Warren noted Thompson’s verbal consent on the

consent form and signed it, with Agent Thistle witnessing the signature.

      At the suppression hearing, Thompson denied ever giving verbal consent to

the search. She stated that she told the agents that she did not feel comfortable

giving consent to the search because her name was not on the lease; she did agree

however, that she consented to a subsequent search of a storage unit in her name.

Thompson also testified that she called her attorney after telling the agents that she

did not feel comfortable. When asked by the district court why she called her

attorney, Thompson replied that the agents were very persistent and she felt as if

they were “backing [her] into a corner.” R2 at 84. When shown the consent form,

Thompson stated that she did not recognize it, and denied telling Agent Warren

that she did not want to sign the form for fear that Boulette would learn of her

consent. On rebuttal, Agent Warren denied doing anything to make Thompson feel

uncomfortable or backed into a corner, and that in fact, the two had discussed

Thompson’s ill father, whom she and Boulette were planning to visit in Texas.

      The court orally overruled Boulette’s motion to suppress, finding that



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Thompson had common authority to consent to the search of the apartment. The

court also found Agent Warren’s testimony credible and Thompson’s testimony

not credible, to the extent that it conflicted with Agent Warren’s version of the

facts. In doing so, the court relied on Thompson’s answers and body language, the

specificity of Agent Warren’s responses, and that Thompson called her attorney

and allowed Agent Warren to talk to him. The court concluded that Thompson

indeed gave Agent Warren consent after speaking to her attorney.

                           II. STANDARD OF REVIEW

      “Review of a district court’s denial of a motion to suppress is a mixed

question of law and fact.” United States v. Delancy, 502 F.3d 1297, 1304 (11th

Cir. 2007). Accordingly, we accept the district court’s factual findings as true

unless clearly erroneous, construing the evidence in the light most favorable to the

prevailing party below, and we review the district court’s interpretation and

application of the law de novo. Id.

                                 III. DISCUSSION

      Boulette maintains that Thompson did not voluntarily consent to the search,

and therefore, the search of the apartment was illegal, and the evidence derived

therefrom should have been suppressed.

      Although the Fourth Amendment shields one’s home from unreasonable



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searches and seizures by law enforcement officers, “because the ultimate

touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement

is subject to certain exceptions.” Brigham City, Utah v. Stuart, — U.S. — , 126 S.

Ct. 1943, 1947, 164 L. Ed. 2d 650 (2006). One “specifically established and well-

delineated” exception is a warrantless search made pursuant to consent. Katz v.

United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967).

Specifically, a warrantless search does not violate the Fourth Amendment where

there voluntary consent is given by a person with authority. Illinois v. Rodriguez,

497 U.S. 177, 181, 110 S. Ct. 2793, 2797, 111 L. Ed. 2d 148 (1990).

      Consent to a search is voluntary “if it is the product of an “essentially free

and unconstrained choice.’” United States v. Purcell, 236 F.3d 1274, 1281 (11th

Cir. 2001) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041,

2047, 36 L. Ed. 2d 854 (1973)). The government bears the burden of proving the

existence of valid consent—that the consent was given voluntarily and not in

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

798 (11th Cir. 1989).

      Boulette argues that the testimony taken at the suppression hearing clearly

showed that Thompson gave neither written nor verbal consent to search the

apartment, and that Thompson’s testimony was credible because she gave specific



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information regarding her reaction to the presence of agents at her residence late at

night.

         We have recognized that consent “usually turns on credibility choices

resulting from conflicting testimony.” United States v. Gonzalez, 71 F.3d 819, 828

(11th Cir. 1996) (internal quotations marks omitted). Credibility determinations

are within 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). In our review, “‘[w]e must accept the evidence 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. (alteration in original) (quoting

United States v. Eddy, 8 F.3d 577, 580 (7th Cir. 1993)).

         We have instructed district courts to conduct a proper credibility

determination, which includes an examination of internal consistencies of a

witness’s testimony, as well as her candor or demeanor on the stand. Id.

Accordingly, in evaluating the factual versions of events between a law

enforcement officer and a witness, we should defer to a lower court’s

determinations “unless [its] understanding of the facts appears to be unbelievable.”

Id. (internal quotations marks omitted).



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      In denying Boulette’s motion to suppress, the district court determined, after

observing the body language and the specificity of the responses from both

witnesses, that Thompson’s testimony was not credible to the extent it conflicted

with Agent Warren’s testimony. We find that the district court examined the

witnesses’ testimony and made a proper credibility determination. Therefore, we

conclude that the court did not clearly err in finding that Thompson consented to

the agents’ search of the apartment.

      Boulette also argues that the agents’ entry into the residence was prompted

by a “show of authority” that negated any possible consent to search because it was

late at night, and Thompson, who was alone in the apartment, was in a “vulnerable

subjective state.” Whether an individual voluntarily consented to a warrantless

search is a question of fact that must be determined by the totality of the

circumstances. Purcell, 236 F.3d at 1281. We have identified the following

factors as relevant in determining whether consent was voluntarily given: (1)

whether the individual felt free to leave; (2) the exercise of coercive police

procedures; (3) the extent of the individual’s cooperation with the police; (4) the

individual’s awareness of her right to refuse consent, and whether the individual, in

fact, could refuse consent; (5) the individual’s education and intelligence; and (6)

the individual’s belief that no incriminating evidence will be found. Ramirez-



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Chilel, 289 F.3d at 752.

      Additionally, in evaluating the surrounding circumstances, we take account

of “‘subtly coercive police questions, as well as the possibly vulnerable subjective

state of the person who consents.’” United States v. Garcia, 890 F.2d 355, 360

(11th Cir. 1989) (quoting Bustamonte, 412 U.S. at 229, 93 S. Ct. at 2049). We also

have held that “[a] suspect does not consent to a search of his residence when his

consent to the entry into his residence is prompted by a show of official authority.”

Ramirez-Chilel, 289 F.3d at 751.

      Application of these factors support the district court’s finding that

Thompson’s consent was voluntarily given. Thompson spoke with Agent Warren

prior to his entry, and she permitted him to come inside to discuss the situation

further. After Agent Warren explained the circumstances of Boulette’s arrest to

Thompson, she called her attorney for advice and spoke with him for about ten

minutes. Moreover, she allowed Agent Warren to speak with her attorney prior to

giving consent. The testimony reflects that Thompson was aware of her right to

refuse consent, and only did so after careful consideration and upon the advice of

her attorney. Although we have deemed nighttime searches more intrusive than

daytime searches and have found that “the assemblage of law enforcement officers

at one’s door in the middle of the night has a tendency to be more coercive than



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during the day,” Ramirez-Chilel, 289 F.3d at 751, n.8, a search conducted late at

night does not, standing alone, negate the voluntariness of one’s consent to search

where the totality of the circumstances demonstrates that consent was voluntary.

See id.

                                IV. CONCLUSION

      Because the district court did not clearly err in finding that Thompson

consented to the search of their apartment, and that her consent was voluntary, the

district court properly denied Boulette’s motion to suppress. Accordingly, we

affirm his convictions.

      AFFIRMED.




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