United States v. Michael Mitchell ( 2022 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3890
___________________________
United States of America
Plaintiff - Appellee
v.
Michael Ray Mitchell
Defendant - Appellant
____________
Appeal from United States District Court
for the District of South Dakota
____________
Submitted: October 21, 2022
Filed: December 13, 2022
____________
Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
____________
GRASZ, Circuit Judge.
Michael Ray Mitchell pled guilty to unlawful possession of a firearm but
preserved his right to appeal the district court’s1 denial of his motion to suppress.
We affirm.
1
The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota, adopting the report and recommendation of the Honorable
Veronica L. Duffy, United States Magistrate Judge for the District of South Dakota.
I. Background
Mitchell was indicted for unlawful possession of a firearm under 18 U.S.C.
§§ 922(g)(1), 922(g)(3), and 924(a)(2). The indictment stemmed from an incident
when Mitchell stayed as an overnight guest at the home of Cameron Tillman.
Minnehaha County Deputy Sherriff Cody Lowe, Sergeant Craig Butler, and
Sergeant Kiel Ricci arrived at Tillman’s home in Sioux Falls to effectuate an arrest
warrant for Anthony Richards, who they believed was staying there. While
searching the home, law enforcement came across Mitchell laying on a couch, where
they soon found a pistol. After his arrest, Mitchell filed a motion to suppress the
introduction of the pistol and other evidence, arguing law enforcement had neither a
warrant nor consent to search the home.
At the suppression hearing, the government argued the warrantless search was
constitutional. In support, the government presented testimony from Lowe, Butler,
and Ricci that Tillman had consented to the search. Mitchell called Tillman, who
denied giving consent to search and said the officers “kind of just moved their way
in” the home while talking to him. The magistrate judge credited the officers’
version of events, found Tillman consented to the search of the home, and
recommended the district court deny Mitchell’s motion to suppress. The district
court adopted the recommendation. Mitchell then conditionally pled guilty,
preserving the right to appeal the adverse ruling on his motion to suppress. Mitchell
appeals and asks us to reverse the district court’s denial of his motion to suppress.
II. Analysis
We apply a mixed standard of review. United States v. Hay, 46 F.4th 746,
750 (8th Cir. 2022). “We review the district court’s findings of fact under the clearly
erroneous standard, and the ultimate conclusion of whether the Fourth Amendment
was violated is subject to de novo review.” Id. (quoting United States v. Williams,
777 F.3d 1013, 1015 (8th Cir. 2015)). The clearly erroneous standard applies to “the
factual finding that consent to search was voluntary.” United States v. Bearden, 780
-2-
F.3d 887, 892 (8th Cir. 2015). “We will reverse a finding of fact for clear error only
if, despite evidence supporting the finding, the evidence as a whole leaves us with a
definite and firm conviction that the finding is a mistake.” United States v. White,
41 F.4th 1036, 1038 (8th Cir. 2022) (quoting United States v. Holly, 983 F.3d 361,
363 (8th Cir. 2020)).
The Fourth Amendment prohibits unreasonable searches. U.S. Const. amend.
IV. Voluntary consent is an exception to the Fourth Amendment’s general
prohibition of a warrantless entry into a home. United States v. Anderson, 688 F.3d
339, 345 (8th Cir. 2012). Whether an individual provided consent to search
necessarily involves the credibility of witnesses. United States v. Ortega-Montalvo,
850 F.3d 429, 433 (8th Cir. 2017). “A credibility finding made by a magistrate judge
‘after a hearing on the merits of a motion to suppress is virtually unassailable on
appeal.’” United States v. Shafer, 608 F.3d 1056, 1065 (8th Cir. 2010) (quoting
United States v. Starr, 533 F.3d 985, 995 (8th Cir. 2008)). Further, “the ‘decision to
credit a witness’s testimony over that of another can almost never be a clear error
unless there is extrinsic evidence that contradicts the witness’s story or the story is
so internally inconsistent or implausible on its face that a reasonable fact-finder
would not credit it.’” United States v. Harper, 787 F.3d 910, 914 (8th Cir. 2015)
(quoting United States v. Heath, 58 F.3d 1271, 1275 (8th Cir. 1995)).
Mitchell argues the consent finding was clearly erroneous because it was
based on inconsistent testimony among the three law enforcement officers. We
disagree.
Three law enforcement officers who were at the home testified at the
suppression hearing. Lowe, Butler, and Ricci each testified that Lowe asked Tillman
if he would consent to search. Lowe testified that Tillman provided verbal consent.
Butler, who was standing next to Lowe, could not recall Tillman’s exact words. But
Butler explained Tillman “essentially said, yes, we can search for Anthony
[Richards].” Ricci was also unable to confirm that Tillman verbally consented. But
Ricci was standing behind Lowe and Butler and observed Tillman move out of the
-3-
way. Lowe, Butler, and Ricci further testified they would not have searched the
home without consent. The magistrate judge considered this evidence and made a
“credibility finding that the officers were testifying truthfully.”
In addition to crediting law enforcement’s testimony, the magistrate judge
discredited Tillman’s testimony to the extent it varied from the officers’ description
of events. The magistrate judge noted that Tillman originally told Lowe there were
only two people in the house when there were actually three. The magistrate judge
also noted that Tillman appeared to admit he lied when he “dropped his head” after
Ricci confronted him about the discrepancy. Mitchell insists the magistrate judge
“infers too much.” But, again, the magistrate judge’s credibility determination after
personally hearing and observing Tillman’s testimony is virtually unassailable on
appeal. And Lowe, Butler, and Ricci’s testimony was not inconsistent or
implausible.
III. Conclusion
Based on our review of the record, there is no basis to disturb the magistrate
judge’s factual findings, as they were not clearly erroneous. Accordingly, the district
court did not err by denying Mitchell’s motion to suppress, and we affirm.
______________________________
-4-