United States v. Monte B. Devore

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3797
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United States of America, *
*
Plaintiff-Appellee, * Appeal from the United States
* District Court for the
v. * Southern District of Iowa.
*
Monte Boyd Devore, * [UNPUBLISHED]
*
Defendant-Appellant. *
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Submitted: June 21, 2005
Filed: June 24, 2005
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Before MURPHY, BYE and SMITH, Circuit Judges.
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PER CURIAM.
After the district court1 denied his motion to suppress evidence seized in a
search of his home, Monte Boyd Devore entered a conditional guilty plea to being a
felon in possession of a firearm. He was sentenced to 30 months. Devore appeals,
arguing that the district court erred in finding that his girlfriend had voluntarily
consented to a search of the house and in refusing to strike a portion of his
presentence investigation report (PSR). We affirm.
1
The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
On December 30, 2002, officers entered Devore's house to execute a warrant
for his arrest on state child endangerment and sex offense charges. The officers
arrested Devore without incident but were stopped by Shannon Gilleland, Devore's
girlfriend. Gilleland struggled with the officers as they removed Devore from the
house and then resisted her own arrest for interfering with official acts. Once in
custody Gilleland consented to the search of the house where officers located firearms
and drug paraphernalia.
On April 15, 2003 Devore was indicted for being a felon in possession of a
firearm. Devore filed a motion to suppress the evidence seized during the search of
his house, arguing that Gilleland had not voluntarily consented to the search. After
a hearing, the district court found that her consent had been voluntarily given and
denied the motion. Devore subsequently entered a conditional guilty plea preserving
his right to appeal the denial of his suppression motion.
At sentencing, Devore objected to three paragraphs in his PSR that described
the conduct underlying the state child endangerment and sex offense charges for
which he had been arrested and later convicted. Devore requested that the paragraphs
be moved from the section describing his federal offense, arguing that they were
unrelated to his possession of a firearm. The district court overruled the motion and
sentenced Devore to 30 months, to be served consecutive to his state sentence. He
appeals.
Devore first argues that the district court erred in denying his motion to
suppress, contending that Gilleland's consent was not voluntarily but rather a product
of duress and police coercion. See United States v. Chaidez, 906 F.2d 377, 380 (8th
Cir. 1990) (no authority to search when consent "the product of duress or coercion,
express or implied" (internal quotations omitted)). After arresting Gilleland, officers
handcuffed her and placed her in the back of a squad car. An officer first requested
her consent to search the home after she had been in the vehicle for forty minutes to
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an hour while the officers arranged care for her children. The interchange between
Gilleland and the officer regarding the search was videotaped. She asked the officer
a number of questions about the search, but never refused consent. After being told
that she could "say yes or no" and asked seven times for her permission to search the
house, Gilleland consented and assisted the officers in locating contraband. Officers
found firearms and drug paraphernalia.
Devore argues that Gilleland was held handcuffed in a squad car for more than
forty minutes, that she was unlawfully arrested without a warrant, and that the
officer's repeated requests for permission were coercive. We will reverse a district
court's finding of voluntary consent only for clear error. United States v. White, 42
F.3d 457, 459 (8th Cir. 1994). Although Gilleland was in custody at the time of her
consent, this does not preclude a finding of voluntariness. See United States v.
Becker, 333 F.3d 858, 861 (8th Cir. 2003). Officers were polite to Gilleland while
she was in the squad car and notified her that she could refuse consent. Gilleland
questioned the officers about the search and carefully considered her decision, at no
point telling them that they could not search the home. After expressing her consent,
Gilleland assisted the officers in finding contraband. The district court was not
clearly erroneous in finding that Gilleland's consent was voluntarily given.
Devore also argues that the district court violated Federal Rule of Criminal
Procedure 32(d)(3) by refusing to move paragraphs in the PSR about his state child
endangerment and sex offenses for which he was arrested on the evening authorities
found firearms in his home from the PSR section detailing his federal offense.
According to Devore, the inclusion of the paragraphs in the offense conduct section
of the PSR will harm him by requiring that he undergo sex offender treatment in
federal prison. Because Devore challenges the placement of the statements within the
report rather than their factual accuracy, the district court was not required to serve
as "an editor as well as an arbiter of justice" by moving the paragraphs to another
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section of the PSR. United States v. Beatty, 9 F.3d 686, 689 (8th Cir. 1993) (quoting
United States v. Turner, 898 F.2d 705, 710 (9th Cir. 1990)).
Accordingly, the judgment of the district court is affirmed.
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