                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0236n.06
                            Filed: March 30, 2009

                                          No. 07-6066

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                       )
                                                )
       Plaintiff-Appellee,                      )
                                                )
v.                                              )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR THE
CHARLES EDDIE YOUNG,                            )    WESTERN DISTRICT OF TENNESSEE
                                                )
       Defendant-Appellant.                     )




       Before: MARTIN and COOK, Circuit Judges; and WATSON, District Judge*


       MICHAEL H. WATSON, District Judge. This is a dispute about whether the district court

properly denied Defendant Charles Young’s motion to suppress evidence gathered during a

warrantless search of his property. We hold that the district court did not err in finding that

Defendant freely and voluntarily gave consent and affirm the judgment of the district court.


                                                I.


       On July 17, 2006, Charles Young was indicted by a grand jury of the United States District

Court for the Western District of Tennessee, Eastern Division for one count of being a felon in



       *
        The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
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United States v. Young

possession of a firearm, in violation of 18 U.S.C. § 922(g), and one count of being a felon in

possession of ammunition, in violation of 18 U.S.C. § 922(g).


       The district court held a hearing on Defendant’s motion to suppress evidence on December

20, 2006. Special agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), an

investigator, and Defendant, among others, testified. In denying Defendant’s motion to suppress,

the district court discussed a substantial number of reasons why it found his consent was freely and

voluntarily given.


       On February 8, 2007, Defendant entered a conditional plea pursuant to Rule 11(a)(2) of the

Federal Rules of Criminal Procedure reserving his right to appeal the district court’s order denying

the motion to suppress. This appeal followed.


                                                II.


       On March 8, 2006, Defendant was summoned to the Carroll County, Tennessee, Sheriff’s

Department by ATF agents as a ruse to allow agents to execute an arrest warrant in a controlled

environment.1 A call was placed to Defendant informing him he could come to the Sheriff’s

Department to claim guns previously seized from him.




       1
       An agent testified that, during a previous arrest, Defendant attempted to flee law
enforcement on an all-terrain vehicle with a small child on his lap.

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       Defendant arrived at the Sheriff’s Department with his wife, Tammy Young, and their young

daughter. Sheriff’s deputies greeted Defendant and took him to a back room separate from his wife

and daughter. In the room, three ATF special agents, Agents Lane, Allen, and Estevan, were in plain

clothes with holstered guns and displayed badges. These agents informed Defendant they had a

federal arrest warrant for him and placed him under arrest. After securing Defendant, Agent Lane

read Defendant his Miranda rights. The agents explained to Defendant that he was under arrest for

being a felon in possession of a firearm. Immediately upon conclusion of his Miranda rights,

Defendant asserted that he was not a drug dealer and repeated this statement throughout the

questioning with the agents.


       At some point during this questioning, Defendant was asked by the agents for consent to

search his house for drugs. Defendant allegedly verbally consented. He was then asked if any

firearms were present on the property. Defendant allegedly told the agents there was a firearm in the

truck on his property and consented to allow the agents to retrieve it.


       The agents further advised Defendant they planned to take him to his house to retrieve the

gun and his prescription medications, and then take him before a magistrate judge in Memphis. The

agents informed Defendant’s wife of what was happening. Defendant repeatedly asked to not have

his daughter see him in handcuffs and the agents agreed to try to facilitate this request.


       The agents then retrieved a consent form and filled it in. Defendant signed the consent form

prior to the search of his house. The entirety of the discussion at the Sheriff’s Department lasted


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United States v. Young

approximately thirty minutes. The three agents and Defendant then followed Tammy Young to the

house. In the driveway of the property, the address on the consent form was modified and the

numbers of the address were darkened or bolded. At the property, the gun was recovered from the

truck. The agents also retrieved Defendant’s prescription medications. The house was searched; no

drugs were found, but ammunition was discovered on the property.


       Defendant testified he was surprised by his arrest and confused by the many agents and

deputies coming in and out of the room. He states he was upset by his daughter being at the Sheriff’s

Department. Although he does not recall being read his Miranda rights, he maintains he was told

by Agent Allen he was going to prison for fifteen years to life and that he could help himself by

telling agents information. He also alleges the agent said that he would not be charged if he told the

agents where any guns were. He further stated he had no recollection of giving verbal consent or

signing a consent form, but admitted it was his signature on the form. Defendant went on to discuss

his limited ninth grade education and his medical conditions, specifically an aneurysm that allegedly

makes him forgetful and confused.


                                                 III.


       In reviewing the district court’s denial of a motion to suppress, we review the district court’s

factual findings for clear error and its legal conclusions de novo. E.g., United States v. Hudson, 405

F.3d 425, 431 (6th Cir. 2005); United States v. Gillis, 358 F.3d 386, 390 (6th Cir. 2004), cert.

denied, 543 U.S. 856 (2004).


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United States v. Young

       “While we review the determination of the ultimate question of whether there was consent

de novo, we must afford due weight to the factual inferences and credibility determinations made by

the district court.” United States v. Moon, 513 F.3d 527, 536-37 (6th Cir. 2008) (citing United States

v. Caruthers, 458 F.3d 459, 464 (6th Cir. 2006)). Where a motion to suppress is denied by a district

court, “we consider the evidence in the light most favorable to the government.” United States v.

Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc) (citation omitted).


       It is well-settled that a person may waive his Fourth Amendment rights by
       consenting to a search. Davis v. United States, 328 U.S. 582, 593-94 (1946).
       Consent to a search “may be in the form of words, gesture, or conduct.” United
       States v. Griffin, 530 F.2d 739, 742 (7th Cir. 1976). In whatever form, consent has
       effect only if it is given freely and voluntarily. Bumper v. North Carolina, 391 U.S.
       543, 548 (1968).


Carter, 378 F.3d at 587.


       “[W]hether a consent to a search was in fact ‘voluntary’ or was the product of duress or

coercion, express or implied, is a question of fact to be determined from the totality of all the

circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); see also Moon, 513 F.3d at

537; United States v. Ivy, 165 F.3d 397, 402 (6th Cir. 1998). In this inquiry, the Court should

consider the circumstances surrounding the search for “more subtle forms of coercion that might

flaw [an individual’s] judgment.” Ivy, 165 F.3d at 402 (citing United States v. Watson, 423 U.S. 411,

424 (1976)).


       Several factors should be examined to determine whether consent is valid, including
       the age, intelligence, and education of the individual; whether the individual

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       understands the right to refuse to consent; whether the individual understands his or
       her constitutional rights; the length and nature of detention; and the use of coercive
       or punishing conduct by the police.
United States v. Elkins, 300 F.3d 638, 647 (6th Cir. 2002) (quoting United States v. Riascos-Suarez,

73 F.3d 616, 625 (6th Cir. 1996)).


                                             IV.


       Considering the various testimony and all the circumstances, the district court did not err in

finding that Defendant freely and voluntarily consented to the search of his property. The evidence

concerning the verbal and subsequent written consent was provided in the form of testimony by,

inter alia, two ATF agents, an investigator, and the Defendant. Although Defendant claims he does

not remember giving consent nor signing the consent form, he admits it is his signature on the

consent form and he remembers a substantial amount of the facts and details of the event. All

parties, including the Defendant, state the events at the Sheriff’s Department were

nonconfrontational, the Defendant was treated fairly, and the discussion was brief. The agents’ guns

were holstered at all times and, although the Defendant might have been scared and upset, the facts

do not suggest the experience rose to the level of duress. Furthermore, despite Defendant’s limited

education, he had previous engagements with law enforcement, see, United States v. Elkins, 300 F.3d

638 n.7 (6th Cir. 2002), and thus he was not unfamiliar with his Constitutional rights. Accordingly,

we will not disturb the district court’s factual finding that the consent was voluntary.




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        Defendant also claims he yielded to the authority of the agents at the Sheriff’s Department.

While mere acquiescence does not suffice to establish free and voluntary consent, see, e.g., Bumper,

391 U.S. at 548-49, it does not appear from the record that Defendant’s consent was “an expression

of futility in resistence to authority or acquiescing in the officers’ request.” United States v. Worley,

193 F.3d 380, 386 (6th Cir.1999). Defendant admitted the situation was nonconfrontational and he

was treated fairly. The record does not suggest Defendant felt powerless to prohibit the search.


        Viewing the evidence in the light most favorable to the government, it is clear that the district

court did not err when it found that Defendant voluntarily consented to the search of his property.




                                                   V.


        For these reasons, we affirm the judgment of the district court.




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