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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11487
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL A. BARR,
a.k.a. Mike Diaz,
a.k.a. C.F.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
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2 Opinion of the Court 21-11487
D.C. Docket No. 4:17-cr-00038-MLB-WEJ-1
____________________
Before ROSENBAUM, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
Michael Barr appeals his convictions for several firearm of-
fenses. He argues the district court should have suppressed evi-
dence collected from a warrantless search of his home. But because
Barr consented to the search, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
A.
In the summer of 2017, Barr was living under an alias with
his girlfriend, Nadya Diaz. The two lived on a thirty-acre farm that
included pasture land, several barns, and a shooting range. Whit-
field County Sheriff’s Office Sergeant Wes Gibson had worked a
side job tending to Barr’s horses, and he knew Barr by the name
“Carlos Fonseca.” He had observed Barr carrying a pistol with him
several times and had also noticed a hunting rifle in Barr’s home.
Barr and Diaz distanced themselves from Sergeant Gibson after
learning that he worked in law enforcement.
In early August, the sheriff’s office received reports of do-
mestic violence by Barr against Diaz. A deputy went to the farm
to investigate and saw Barr—who identified himself as “Mike”—
outside the house wearing an empty pistol holster. Deputies later
realized that “Carlos” was actually Michael Barr. They checked a
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21-11487 Opinion of the Court 3
criminal database and confirmed that Barr had active arrest war-
rants related to controlled substances and illegal possession of a
firearm by a convicted felon. When the deputies obtained a pho-
tograph of Barr and returned undercover to the house to verify his
identity, he answered the door as “Carlos,” and they again ob-
served him wearing an empty holster. The deputies positively
identified Barr from his photograph, and they planned to arrest him
pursuant to the outstanding warrants.
Because the deputies knew Barr owned firearms, they de-
cided to try arresting him by a traffic stop rather than approach him
while he was inside the house. They set up surveillance at the farm
around 8:00 a.m. on August 31. The deputies did not know if any-
one else was at the house, but they saw two vehicles parked in the
driveway. A third vehicle on the property belonged to Barr’s em-
ployee, Michael Hawkins, who was there with his daughter Ashley
to help Barr corral horses behind the house.
Around 10:30 a.m., the deputies decided not to wait to per-
form a traffic stop but to arrest Barr while he was outside the house
with the Hawkinses. The deputies placed Barr in plastic handcuffs
without incident and read him his Miranda1 rights. Barr asked for
an attorney and would not tell the deputies his name. Detective
Rickey Holmes turned from Barr, began walking up the driveway
toward Mr. Hawkins, and told him, “I have a paper written, but I
1
Miranda v. Arizona,
384 U.S. 436 (1996).
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4 Opinion of the Court 21-11487
don’t have it signed.” Detective Holmes was referring to a search
warrant application; he had drafted it before the arrest in case the
initial plan to arrest Barr at a traffic stop failed.
Because Barr’s hands were cuffed, he had difficulty wiping
the sweat from his eyes. He asked Detective Todd Thompson for
help, and Detective Thompson asked Barr if someone could go
into the house to get something to wipe Barr’s face. Barr appar-
ently did not respond, and instead of going inside the house, De-
tective Thompson asked Mr. Hawkins to wipe the sweat from
Barr’s face. Barr then asked Mr. Hawkins to “do [him] a favor” and
retrieve two cell phones from inside his bedroom. Mr. Hawkins
asked if his daughter Ashley would know which bedroom was
Barr’s.
As Barr and Mr. Hawkins discussed the location of the
phones, Detective Holmes announced to Barr, “We’re going to es-
cort him in there to get your stuff. We don’t want him going in
there.” Barr turned to look at Detective Holmes, then turned back
to Mr. Hawkins and said that the phones were on top of his bed.
Detective Holmes believed that Barr had consented to his entering
the house because Barr continued to explain where the phones
were after being told that the deputies would accompany Mr. Haw-
kins.
Mr. Hawkins then turned and started walking toward the
house; Detective Holmes and two other deputies followed him,
and Barr didn’t say anything. As the four men entered through the
back door of the house, Mr. Hawkins told Detective Holmes that
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21-11487 Opinion of the Court 5
he was uncomfortable being the first person to go inside. Detective
Holmes entered first, and he immediately saw bullets on a table
next to the door. Because the officers knew that Barr had kept fire-
arms in the house, Detective Holmes told Mr. Hawkins to wait
outside, and he proceeded toward Barr’s bedroom. As he entered,
Detective Holmes saw the cell phones lying on Barr’s bed. He also
saw a semiautomatic rifle on the bed and a pistol on the nightstand.
Once Detective Holmes saw the firearms, he conducted a
protective sweep of the rest of the house to make sure nobody else
was there. When Detective Holmes walked back outside, he ex-
plained to Barr that he had not retrieved the phones because he’d
found firearms in the house and he knew Barr was a convicted
felon. Barr then asked Detective Holmes twice to go back and re-
trieve the phones so he could call an attorney, but Detective
Holmes explained that he would bring the phones down to the jail
later. After the deputies left, they obtained a search warrant to
seize the firearms and ammunition. They found over seventeen
thousand rounds of ammunition, several firearms, and two silenc-
ers.
B.
The government charged Barr in a nine-count superseding
indictment. Four of the counts related to the firearms the deputies
found while searching Barr’s home: one count of conspiring with
Diaz to possess a firearm as a convicted felon, two counts of pos-
sessing a firearm as a convicted felon, and one count of possessing
an unregistered firearm silencer. Barr moved to suppress the
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6 Opinion of the Court 21-11487
ammunition, silencers, and firearms as the fruit of an unlawful
search. The district court held an evidentiary hearing, where dep-
uties testified to the facts laid out above.
The magistrate judge issued a report and recommendation
that recommended denying the motion to suppress. The magis-
trate judge found that Barr had consented to the search because he
did not object when the deputies told him they would only let Mr.
Hawkins enter the house if Detective Holmes accompanied him.
Barr filed objections to the report and recommendation, but
the district court overruled them and adopted it. The district court
agreed with the magistrate judge that Barr had voluntarily con-
sented to the search, so the deputies did not need a warrant to enter
Barr’s home. Barr had argued that he had not consented because
he’d merely remained silent as the detectives walked away from
him, but the district court found that Barr had consented to the
search when he (1) knew that the deputies would not let Mr. Haw-
kins back into the house unaccompanied and (2) continued to tell
Mr. Hawkins where the phones were located.
After the district court denied his motion to suppress, Barr
pleaded guilty to the four gun-related counts, and the government
agreed to dismiss the remaining counts against him. The district
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21-11487 Opinion of the Court 7
court then sentenced Barr to time served, plus three years’ super-
vised release. Barr timely appealed. 2
STANDARD OF REVIEW
A district court’s ruling on a motion to suppress presents a
mixed question of fact and law. United States v. Zapata,
180 F.3d
1237, 1240 (11th Cir. 1999). We review the district court’s factual
findings for clear error and the district court’s application of the law
to those facts de novo. See
id. “[W]hen considering a ruling on a
motion to suppress, all facts are construed in the light most favor-
able” to the party that prevailed before the district court. United
States v. Bervaldi,
226 F.3d 1256, 1262 (11th Cir. 2000).
DISCUSSION
The Fourth Amendment protects citizens against “unrea-
sonable searches and seizures.” U.S. Const. amend. IV. Ordinarily,
reasonableness “‘requires the obtaining of a judicial warrant’ be-
fore a law enforcement officer can enter a home without permis-
sion.” Lange v. California,
141 S. Ct. 2011, 2017 (2021). But a war-
rantless search is not “unreasonable” where a suspect voluntarily
consents to a search. See Schneckloth v. Bustamonte,
412 U.S. 218,
227 (1973). Whether consent was voluntary, rather than “the
2
In his plea agreement, Barr reserved his right to appeal the district court’s
denial of his motion to suppress. The issue is thus properly presented here.
See United States v. Matchett,
802 F.3d 1185, 1190–91 (11th Cir. 2015).
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8 Opinion of the Court 21-11487
product of duress or coercion, express or implied, is a question of
fact to be determined from the totality of all the circumstances.”
Id.
Several factors—none dispositive—help us determine
whether consent was voluntary. See United States v. Blake,
888
F.2d 795, 798 (11th Cir. 1989). Those factors include the “voluntar-
iness of the defendant’s custodial status, the presence of coercive
police procedure, the extent and level of [his] cooperation with po-
lice, [his] awareness of his right to refuse to consent to the search,
[his] education and intelligence, and, significantly, [his] belief that
no incriminating evidence will be found.”
Id. (quoting United
States v. Chemaly,
664 F.2d 791, 1023–24 (5th Cir. 1981)). While
mere “failure to object to a search” does not amount to consent,
see United States v. Gonzalez,
71 F.3d 819, 829–30 (11th Cir. 1996),
the defendant’s body language or other conduct can manifest im-
plied consent to a search, see United States v. Ramirez-Chilel,
289
F.3d 744, 752 (11th Cir. 2002).
Critically, the mere pressure to consent to a search does not
necessarily amount to coercion or duress. In United States v. Gar-
cia,
890 F.2d 355, 360 (11th Cir. 1989), a team of fourteen federal
agents arrested the defendant in front of his house. The defend-
ant—who was handcuffed and did not speak English—spoke to an
agent who translated for him.
Id. at 361 He refused consent to a
search of his whole property but said that he would consent to only
a limited search.
Id. The agents declined to conduct a limited
search and told the defendant they would seek a warrant if he did
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not consent to a search of the entire home, at which point he gave
them permission to do so.
Id. We found the defendant’s consent
voluntary because the officers never misrepresented their author-
ity to the defendant—they did not tell him that they already had a
search warrant.
Id. Although we conceded that the defendant was
“under some pressure to comply” with the request to search his
home, there was “no evidence that [the] officers employed any tac-
tics that would augment the degree of coercion that is inherent in
any arrest.”
Id. at 362. The question is not whether the defendant
wanted the search to occur—only whether he was coerced into
consenting to the search.
Here, the district court did not clearly err in finding that Barr
consented to the search of his home. Barr asked Mr. Hawkins to
go into his home and get two cell phones from his bedroom. When
Detective Holmes told Barr that he would accompany Mr. Haw-
kins to the house, Barr turned to look at Detective Holmes before
continuing to explain to Mr. Hawkins where the phones were lo-
cated. Then, Barr said nothing as Detective Holmes and two other
deputies followed Mr. Hawkins up to the house. This conduct,
while not verbal consent, could be reasonably interpreted as im-
plied consent. Cf. Ramirez-Chilel,
289 F.3d at 748, 752 (finding im-
plicit consent to search where defendant stepped aside and allowed
officers to enter his home). Viewing the facts in the light most fa-
vorable to the district court’s ruling, Barr’s knowledge that Mr.
Hawkins would be escorted by Detective Holmes, his knowing
look at Detective Holmes, and his continued direction to Mr.
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10 Opinion of the Court 21-11487
Hawkins support the district court’s finding that Barr accepted De-
tective Holmes’s condition that he be able to escort Mr. Hawkins
inside.
Nor did the district court clearly err in finding that Barr con-
sented voluntarily. Although Barr was handcuffed—so his custo-
dial status wasn’t voluntary—the deputies did not engage in any
tactics to generate greater coercive pressure than that “inherent in
any arrest.” Garcia,
890 F.2d at 362. They made sure that Barr was
comfortable by asking Mr. Hawkins to wipe the sweat from his
eyes, and they respected his refusal to be questioned after they read
his Miranda rights. Barr also clearly understood his rights: the pri-
mary reason he wanted the phones from his bedroom was so that
he could call his attorney as soon as possible. The fact that Barr’s
illicit firearms were in plain view on his bed—and would thus cer-
tainly be discovered if law enforcement entered his bedroom—
does weigh somewhat against a finding of voluntariness. See
Blake,
888 F.2d at 798. But under the totality of the circumstances,
we cannot say that the district court clearly erred in finding the
consent voluntary.
Barr argues that he did not give voluntary consent to the
search but merely acquiesced to a display of lawful authority. And
it is true that consent is not voluntary when a law enforcement of-
ficer “claims authority to search a home under a warrant” or oth-
erwise “announces in effect that the occupant has no right to resist
the search.” Bumper v. North Carolina,
391 U.S. 543, 559 (1968).
But here, officers never announced that they had a warrant. In fact,
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Detective Holmes directly announced to Mr. Hawkins, in Barr’s
presence, that he had a warrant application written but not yet
signed. The district court interpreted Detective Holmes’s state-
ment that he would accompany Mr. Hawkins not as an assertion
of unilateral authority to enter the house, but as a conditional state-
ment that if Mr. Hawkins went to the house, deputies would ac-
company him to ensure their safety. This may have amounted to
pressure for Barr to consent to the search—depending on how
badly he wanted his phones—but the district court did not clearly
err in finding that Barr was not coerced by a show of authority. Cf.
Garcia,
890 F.2d at 358 (finding consent voluntary notwithstanding
the “pressure” agents placed on defendant to permit them to search
his house).
CONCLUSION
The district court did not clearly err when it determined that
Barr voluntarily consented to Detective Holmes accompanying
Mr. Hawkins into the house and to the bedroom. Because Detec-
tive Holmes was lawfully present in the house, his discovery of
guns and ammunition lying in plain view did not violate the Fourth
Amendment. See Horton v. California,
496 U.S. 128, 141–42
(1990). The district court did not err in denying Barr’s motion to
suppress.
AFFIRMED.
