United States v. Kurt Robert Davis , 84 F. App'x 713 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2847
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
Kurt Robert Davis, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 23, 2003
Filed: December 30, 2003
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Before RILEY, McMILLIAN, and SMITH, Circuit Judges.
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PER CURIAM.
Following sentencing upon his conditional guilty plea to being a felon in
possession of firearms, Kurt Robert Davis appeals the district court’s1 denial of his
motion to suppress evidence seized from his residence. We have carefully reviewed
1
The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas adopting the report and recommendations of the
Honorable Bobby E. Shepherd, United States Magistrate Judge for the Western
District of Arkansas.
the record, and conclude the district court did not clearly err in finding that Davis’s
consent to the search at issue was voluntary.
Davis argues that his consent was not voluntary because he had been drinking
alcohol at the time and he was effectively prevented from leaving his property, but
the district court was entitled to credit a police officer’s testimony that Davis did not
appear intoxicated: his speech was not slurred, and he did not have trouble walking,
moving, or talking. The court also was entitled to credit the officer’s testimony that
Davis had been free to leave at the time he gave his consent, despite Davis’s contrary
testimony. See United States v. Hernandez, 281 F.3d 746, 748 (8th Cir. 2002)
(district court’s decision at suppression hearing to credit police officer’s testimony
was not clearly erroneous, even though officer’s testimony conflicted with
defendant’s; district court was in better position to assess credibility of witnesses);
United States v. Gipp, 147 F.3d 680, 686 (8th Cir. 1998) (rejecting contention that
appellant could not have voluntarily consented because he was under influence of
drugs; officers testified that appellant answered their questions intelligently, behaved
rationally, and except for some nervous behavior, appeared normal); United States v.
Hathcock, 103 F.3d 715, 719-20 (8th Cir. 1997) (court must examine environment in
which consent was given, including how long individual was detained and whether
individual (1) was threatened, physically intimidated, or punished by police; (2) relied
upon police’s promises or misrepresentations; (3) was in custody or under arrest; (4)
was in public or secluded place; and (5) objected to search), cert. denied, 521 U.S.
1127 (1997).
Accordingly, we affirm. See 8th Cir. R. 47B.
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