United States v. Michael Moylan ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3285
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
Michael C. Moylan, * [UNPUBLISHED]
*
Appellant. *
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Submitted: May 31, 2011
Filed: June 8, 2011
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Before WOLLMAN, BOWMAN, and SMITH, Circuit Judges.
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PER CURIAM.
Michael C. Moylan was charged with being a felon in possession of a firearm,
18 U.S.C. §§ 922(g)(1), 924(a)(2). Moylan moved to suppress evidence, arguing that
the police searched his home and seized a firearm from under the front porch without
a warrant or consent. The District Court1 denied the suppression motion after a
hearing, concluding that Moylan’s live-in girlfriend validly consented to a search of
1
The Honorable Greg Kays, United States District Judge for the Western
District of Missouri, adopting the report and recommendations of the Honorable Sarah
W. Hays, United States Magistrate Judge for the Western District of Missouri.
the premises and alternatively that the firearm was in plain view. A jury found
Moylan guilty, and the court imposed a fifty-one-month prison sentence.
Proceeding pro se on appeal, Moylan argues that the District Court erred in
denying the motion to suppress. Reviewing the court’s factual determinations for
clear error and its legal conclusions de novo, we reject this argument. See United
States v. Johnson, 601 F.3d 869, 872 (8th Cir. 2010) (standard of review). We agree
that Moylan’s girlfriend had authority to consent to the search. See United States v.
Nichols, 574 F.3d 633, 636 (8th Cir. 2009). Further, the District Court did not clearly
err in finding that she did consent, given her testimony that she told the police she had
no problem with them searching the residence and that she was present during the
search and did not tell them to stop. See United States v. Luken, 560 F.3d 741, 744
(8th Cir. 2009). The record does not support Moylan’s assertion on appeal that he
objected to the search. See United States v. Almeida-Perez, 549 F.3d 1162, 1169 (8th
Cir. 2008).
Accordingly, we conclude that denial of the suppression motion was proper,
and we affirm the judgment of the District Court.
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