                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0759n.06

                                            No. 09-5279                                  FILED
                                                                                     Dec 15, 2010
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )
         Plaintiff-Appellee,                              )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
                v.                                        )        COURT FOR THE EASTERN
                                                          )        DISTRICT OF TENNESSEE
JOHN L. MISER,                                            )
                                                          )
         Defendant-Appellant.                             )
                                                          )



BEFORE: BATCHELDER, ROGERS, and KETHLEDGE, Circuit Judges.

         ROGERS, Circuit Judge. Defendant John Miser appeals his conviction for drug and firearm

offenses, challenging the denial of his pretrial motion to suppress and arguing that there was

insufficient evidence to support a conviction. Specifically, Miser argues that there was insufficient

evidence to establish that he possessed the drugs and firearm found during the search of a trailer

where he was living. The arguments, however, lack merit because the district court’s decision to

credit the testimony of investigating officers over Miser’s own testimony was not clearly erroneous,

and because a rational jury could find that the element of possession was proved beyond a reasonable

doubt.

         Miser was charged with possession of 500 grams or more of cocaine with intent to distribute,

possession of marijuana and oxycodone with intent to distribute, possession of a firearm in

furtherance of a felony, and possession of a firearm by a convicted felon. At a July 22, 2008 hearing
No. 09-5279
United States v. Miser


on Miser’s motion to suppress the evidence supporting the indictment, Hamblen County police

officers Eric Carson and David Cribley testified that on the morning of January 18, 2008, they

received an anonymous tip that Miser and another man, Frankie Crum, were wanted by law

enforcement and were living in a trailer on Lot 93 of the Everhart Campground in Hamblen County,

Tennessee. The informant also said that the trailer contained a sizable quantity of illegal drugs. The

officers testified that as they approached the trailer, Miser was standing on the front porch. The

officers identified themselves, asked Miser for identification, and verified through a record check

that there was an outstanding warrant for him in Florida. When questioned, Miser denied that Crum

was present and invited the officers to “come in and look for yourself.”

        The officers testified that when Miser opened the front door and let them inside, they smelled

marijuana and saw a partially smoked marijuana cigarette lying in an ashtray. Miser admitted that

he had just finished smoking the marijuana cigarette. Officer Carson began walking toward the

bedroom, and Miser said, “Stop, you can’t go in there.” The officers then arrested Miser for

possession of marijuana and found a bag of marijuana in his pocket. After being advised of his

Miranda rights, Miser signed a consent to search the trailer. Nevertheless, the officers obtained a

search warrant and, after transporting Miser to jail, returned to the trailer several hours later to search

the bedroom, where they found 15 large bales of marijuana (approximately 170 pounds) and a large

quantity of cocaine. A firearm and oxycodone pills were found in the trailer’s kitchen area.

        Miser’s testimony at the hearing was significantly different. Miser testified that after he

answered the officers’ questions about his identity and whether Crum was present, the officers asked


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to be allowed into the trailer, and Miser refused. The officers then pushed their way into the trailer.

After spotting the partially smoked marijuana cigarette, Officer Carson walked all the way through

the trailer and into the bedroom, and only after looking around decided that “we better get a

warrant.” Miser testified that after the officers arrested him, he signed the consent to search because

the officers had already been through the whole trailer and had seen all there was to see.

       On cross examination, Miser admitted that he slept in the trailer the night before the search,

and stayed there “off and on.” His Dodge Neon was parked outside the trailer when the officers

arrived. Miser also admitted knowing that the trailer contained “170-some pounds” of marijuana,

because he could smell it while inside the trailer. Finally, Miser admitted that the marijuana found

in his pocket was “the same stuff” as the marijuana found in the trailer.

       At the conclusion of the evidentiary hearing, the magistrate judge recommended denial of

Miser’s motion to suppress. To the extent the officers’ testimony differed from Miser’s, the

magistrate judge adopted the officers’ version of the facts and rejected Miser’s. The magistrate

judge found that Miser invited the officers into the trailer to see for themselves that no one else was

present; that the officers stepped inside, detected a strong odor of marijuana and observed a partially

smoked marijuana cigarette in plain view; and that the officers thus had probable cause to justify

Miser’s arrest and the issuance of a search warrant. In the alternative, the magistrate judge assumed

a version of the facts based on Miser’s testimony, and found that exigent circumstances justified the

officers’ entry into the trailer, because the officers had detected the odor of marijuana wafting




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through the trailer’s open front door. The district court reviewed de novo the entire record, adopted

the magistrate judge’s recommendation, and denied Miser’s motion to suppress.

       The officers repeated their testimony at trial. In addition, several other key pieces of evidence

connected Miser to the contraband found in the trailer. Tom Everhart, the owner of the campground,

testified that his home adjoined the campground and that he could see everyone coming and going

from the campground. Everhart testified that Miser was the sole occupant of the trailer from October

2007 until his arrest on January 18, 2008. Everhart further testified that from October 2007 through

January 2008, the only car regularly parked outside the trailer on Lot 93 was a Dodge Neon, which

Everhart saw Miser driving almost every day, leaving in the morning and returning late each

afternoon. Everhart testified that Lot 93 was leased to Miser’s niece, Samantha Wheatley, who lived

elsewhere but allowed Miser to live in the trailer. Eight days before his arrest, Miser paid Everhart

$283 to cover the monthly lease and back rent.

       James Henegar testified that on January 18, 2008, he shared a cell with Miser in the Hamblen

County jail. Henegar first met Miser during the summer of 2007. Henegar testified that he

occasionally saw Miser with a firearm, and that the firearm recovered from the trailer resembled a

gun that Miser had previously shown him. Henegar testified that, while they were sharing a cell,

Miser said that his home had been raided and that he had been caught with his firearm and quantities

of cocaine, marijuana, and oxycodone. Henegar further testified that the gun seized by the police

was the same one Miser had previously shown him.




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       Federal ATF agent Gregory Moore testified that he processed Miser after his arrest and that

Miser reported his home address as Lot 93 at the Everhart Campground. A key to the trailer was

found on the same key ring that contained a key to Miser’s Dodge Neon. However, no fingerprints

were taken from the firearm recovered from the trailer. Agent Moore testified that the firearm was

not fingerprinted because federal agents investigating the case believed the link between Miser and

the gun had been established.

       At the close of the government’s evidence, Miser moved for a judgment of acquittal, arguing

that there was insufficient evidence linking him to the drugs and firearm seized from the trailer, other

than his presence when the officers arrived. The district court denied the motion, explaining that a

rational jury could find all the essential elements of the charged crimes. The jury convicted Miser

of possession of 500 grams or more of cocaine with intent to distribute, possession of marijuana and

oxycodone with intent to distribute, and possession of a firearm by a convicted felon. Miser was

sentenced to 120 months in prison, the statutory minimum, and now appeals his conviction.

       The district court properly denied Miser’s motion to suppress because the evidence, viewed

in the light most favorable to the United States, supports the district court’s finding that Miser

consented to the officers’ entry of the trailer. The district court adopted the magistrate judge’s

conclusion that the officers’ version of the facts was more credible than Miser’s. Because

“[f]indings of fact anchored in credibility assessments are generally not subject to reversal upon

appella[te] review,” United States v. Taylor, 956 F.2d 572, 576 (6th Cir. 1992) (en banc), the district

court’s conclusion that Miser voluntarily consented to the search was not clearly erroneous.


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        Whether consent to a search is voluntary is “a question of fact to be determined from the

totality of all the circumstances,” Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973), and a

district court’s factual findings supporting denial of a motion to suppress are reviewed for clear error.

United States v. Gross, 550 F.3d 578, 582 (6th Cir. 2008). When the district court has denied the

motion to suppress, this court must consider the evidence in the light most favorable to the

government. United States v. Smith, 594 F.3d 530, 535 (6th Cir. 2010); United States v. Garrido,

467 F.3d 971, 977 (6th Cir. 2006). “Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” United States v. Rose, 889 F.2d

1490, 1494 (6th Cir. 1989) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).

        Viewed in the light most favorable to the government, the evidence supports the district

court’s conclusion that Miser consented to the initial entry of the trailer. Miser argues that the

officers’ testimony was “inherently” incredible, and therefore that the district court’s finding of

consent was not a “permissible” view of the evidence. However, it is not difficult to imagine why

a suspect might consent to a search under these circumstances. Miser may have believed that the

officers were looking only for Frankie Crum—not drugs—and that consenting to entry for purposes

of verifying the absence of Crum would not expose him to a thorough search of the trailer. Indeed,

the vast majority of criminal defendants voluntarily consent to be searched—even when they are

carrying drugs. See, e.g., Samuel R. Gross & Katherine Y. Barnes, Road Work: Racial Profiling and

Drug Interdiction on the Highway, 101 Mich. L. Rev. 651, 675-76 (2002).




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       Thus, there is nothing “inherently” incredible about the officers’ testimony that Miser

consented to the search of the trailer. Any argument that the police officers exaggerated or

misrepresented the voluntariness of Miser’s consent goes to the credibility of the officers’ testimony,

not to any inherent implausibility of Miser’s consent under the circumstances. Such credibility

determinations are for the factfinder. Because the evidence, viewed in the light most favorable to

the United States, supports the district court’s conclusion that Miser consented to the entry of the

trailer, the court properly denied Miser’s motion to suppress.

       Likewise, the district court properly denied Miser’s motion for judgment of acquittal because

the evidence amply established that Miser possessed the drugs and firearm found inside the trailer

where he was living. Evidence is sufficient to support a criminal conviction if, “after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979) (emphasis in original). Because the record contains ample evidence from which a rational

jury could find beyond a reasonable doubt that Miser actually or constructively possessed the drugs

and firearm seized from the trailer, his sufficiency of the evidence challenge lacks merit.

       “[C]onstructive possession exists when a person . . . knowingly has the power and the

intention at a given time to exercise dominion and control over an object, either directly or through

others.” United States v. Hunter, 558 F.3d 495, 504 (6th Cir. 2009). “Physical proximity to drugs,

or mere presence in an area where drugs are found, is not sufficient.” United States v. White, 932

F.2d 588, 589 (6th Cir. 1991). However, “[t]he government may meet its burden” of proving


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possession beyond a reasonable doubt “through circumstantial evidence alone, and such evidence

need not exclude every possible hypothesis except that of guilt.” United States v. Jackson, 55 F.3d

1219, 1225 (6th Cir. 1995).

        In this case, the evidence was more than sufficient to establish constructive possession

beyond a reasonable doubt. See Jackson, 443 U.S. at 319. In addition to Miser’s presence when the

officers arrived, circumstantial evidence demonstrated Miser’s connection to the trailer and the

contraband found inside. There was testimony that Miser had been the sole occupant of the trailer

for at least three months prior to his arrest; that Miser paid rent to Everhart for his use of Lot 93; that

a key to the trailer was found on the same key ring that contained a key to Miser’s Dodge Neon; that

Miser admitted to the officers that he had been staying in the trailer; and that Miser gave his home

address as Lot 93 of the Everhart Campground.

        There was also testimony that the cocaine and marijuana were found in the trailer’s only

bedroom; that when Officer Carson began walking toward the bedroom, Miser said, “Stop, you can’t

go in there,” suggesting Miser was aware that the bedroom contained contraband; that Miser

admitted that he had just smoked a marijuana cigarette, which was lying in plain view; and that he

had an additional quantity of marijuana in his pocket. Officer Cribley testified that while he was

transporting Miser to jail, they drove through a “high class” neighborhood, and Miser commented

that he could buy one of the houses in the subdivision “with what’s in that trailer.” Morever, James

Henegar testified that while they were sharing a cell, Miser admitted to him that he was storing large




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quantities of drugs in the trailer, and that the gun seized by the police was the same one Miser had

previously shown him.

        Miser relies on United States v. Birmley, 529 F.2d 103, 107-08 (6th Cir. 1976), in which the

court held that the defendant’s presence as a back-seat passenger in a car transporting stolen

firearms, by itself, was not sufficient to prove that he knew that firearms were in the trunk of the car.

But unlike the defendant in Birmley, Miser was the exclusive resident of the trailer for an extended

period of time. Thus, Birmley does not support Miser’s argument that no rational jury could have

found the element of possession beyond a reasonable doubt.

        Miser also contests the credibility of James Henegar, but this challenge goes to the

weight—not the sufficiency—of the evidence. “This Court has consistently stated that in cases in

which we assess the sufficiency of the evidence, we do not weigh the evidence, assess the credibility

of the witnesses, or substitute our judgment for that of the jury.” United States v. Barnett, 398 F.3d

516, 522 (6th Cir. 2005) (internal quotation marks and alteration omitted). As we said in United

States v. Adamo, 742 F.2d 927, 935 (6th Cir. 1984), “attacks on witness credibility are simply

challenges to the quality of the government's evidence and not to the sufficiency of the evidence”

(emphasis in original).

        We do not need to decide whether we would find constructive possession proven beyond a

reasonable doubt. We are satisfied that “any rational trier of fact could” find constructive possession

beyond a reasonable doubt. Jackson, 443 U.S. at 319. And because the evidence must be viewed

“in the light most favorable to the prosecution,” id., a rational jury could find that Miser “knowingly


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ha[d] the power and the intention . . . to exercise dominion and control over” the drugs and firearm

found in the trailer. Hunter, 558 F.3d at 504.

       Because the district court properly denied both Miser’s motion to suppress and motion for

acquittal based on insufficiency of the evidence, the conviction is affirmed.




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