United States v. Cogdell , 234 F. App'x 75 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5147
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CALVIN HOMER COGDELL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:05-cr-00270)
Submitted: June 6, 2007 Decided: July 11, 2007
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Fredilyn Sison, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Asheville, North Carolina, for Appellant. Gretchen C.F. Shappert,
United States Attorney, Jonathan A. Vogel, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Calvin Homer Cogdell pled guilty pursuant to a plea
agreement to possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1) (2000), and was sentenced to
forty-six months in prison. Cogdell’s guilty plea was conditioned
on his right to appeal the district court’s denial of his motion to
suppress firearms seized after a search of Cogdell’s home and
garage. On appeal, Cogdell challenges only the district court’s
denial of his motion to suppress, claiming police threatened him
with arrest if he refused to consent to the search and that the
totality of the circumstances compelled the conclusion Cogdell’s
consent to the search was involuntary. We affirm.
Whether a defendant’s consent to a search is voluntary is
a factual question determined under the totality of the
circumstances and reviewed under the clearly erroneous standard.
See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973); United
States v. Jones, 356 F.3d 529, 533 n.* (4th Cir. 2004). The
Government has the burden of proving that consent was freely and
voluntarily given. Schneckloth, 412 U.S. at 222. When a
suppression motion has been denied, we review the evidence in the
light most favorable to the Government. See United States v.
Grossman, 400 F.3d 212, 216 (4th Cir. 2005).
Despite Cogdell’s claim he felt coerced into consenting
to the search, no evidence was introduced at the suppression
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hearing that suggested the officers used coercive tactics to gain
his consent. See United States v. Mendenhall, 446 U.S. 544, 558
(1980) (finding that courts should consider age, maturity, and
intelligence of defendant in determining whether consent to search
was voluntary); United States v. Lattimore, 87 F.3d 647, 650 (4th
Cir. 1996) (en banc) (same; noting that “conditions under which the
consent to search was given” are also relevant). Rather, the
evidence established that Cogdell was a forty-one year old man who
had extensive experience dealing with law enforcement since he had
several prior arrests and gave police consent to search his home
five times in the year and a half prior to the July 2004 search.
The evidence also established that officers came to Cogdell’s home
in the daytime, in plain clothes, and never brandished their
weapons, and that police calmly asked Cogdell to step outside where
they spoke to him for a brief time in a normal tone of voice.
We find the mere fact police informed Cogdell at the
beginning of their “meeting” that there was an outstanding warrant
for his arrest did not render Cogdell’s subsequent consent to the
search involuntary. First, police truthfully informed Cogdell of
the arrest warrant’s existence. See United States v. Pelton, 835
F.2d 1067, 1072-73 (4th Cir. 1987) (holding that coercion does not
exist merely because law enforcement informs a suspect of truthful,
yet unpleasant, circumstances). In any event, Cogdell was already
aware of the warrant’s existence when police came to his home on
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July 9, 2004. Moreover, the evidence established that police
informed Cogdell about the warrant as they were discussing
Cogdell’s willingness to provide police information about the drug
conspiracy they were investigating, and not later in the
conversation when they were asking permission to search Cogdell’s
home. After requesting Cogdell’s permission to search his home,
police informed Cogdell their ability to search his home was up to
him, but Cogdell nonetheless consented. Moreover, the fact that
Cogdell stated he might not cooperate in the investigation of the
drug conspiracy lends support to the conclusion he did not feel
coerced when dealing with the police.
Based on the foregoing, we find that, under the totality
of the circumstances, the district court properly found Cogdell
voluntarily consented to the search of his garage and home.
Accordingly, we affirm the court’s denial of Cogdell’s motion to
suppress and Cogdell’s conviction and sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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