United States v. Pennywell ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 7, 2005
Charles R. Fulbruge III
Clerk
No. 04-30636
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CALVIN W. PENNYWELL, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CR-50124-1
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Calvin W. Pennywell, Jr., entered a conditional guilty
plea to possession with intent to distribute five grams or more of
cocaine base, in violation of 21 U.S.C. § 841(a)(1), and possession
of firearms in relation to drug trafficking, in violation of
18 U.S.C. § 924(c)(1). He now appeals the district court's denial
of his suppression motion. He argues that the district court
erroneously determined that he voluntarily consented to entry by
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
police into his residence, where they subsequently found firearms,
cash, and drugs.
Voluntary consent to a search is an exception to the
general rule that warrantless searches are per se invalid. See
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). The Govern-
ment has the burden of proving by a preponderance of the evidence
that consent was given freely and voluntarily. Id. at 222. Such
a finding of fact is reviewed for clear error. United States v.
Tompkins, 130 F.3d 117, 121 (5th Cir. 1997). “Voluntarily” means
not coerced by threat or force and not granted only in submission
to a claim of lawful authority. Schneckloth, 412 U.S. at 233.
Two police officers testified that Pennywell consented to
a request to enter and look around when officers knocked on his
door in response to a complaint about narcotics activity and
weapons at the residence. Pennywell testified that he responded
negatively when police asked if they could enter. We conclude that
the district court’s finding of voluntary consent was not clearly
erroneous. See Tompkins, 130 F.3d at 121; see also United States
v. Garza, 118 F.3d 278, 283 (5th Cir. 1997).
AFFIRMED.
2