United States v. Christopher Bowser

505 F. App'x 522
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 20, 2012
Docket11-2616
StatusUnpublished
Cited by2 cases

This text of 505 F. App'x 522 (United States v. Christopher Bowser) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Christopher Bowser, 505 F. App'x 522 (6th Cir. 2012).

Opinion

STAFFORD, District Judge.

The appellant, Christopher Wayne Bow-ser (“Bowser”), appeals from the judgment entered against him following his conditional plea of guilty to possession with intent to distribute marijuana. Bowser entered his plea after the district court denied his motion to suppress the marijuana found by officers in a closed cooler in Bowser’s residence. Bowser reserved his right to appeal the district court’s finding that Bowser consented to the search of the cooler in which the marijuana was found. We AFFIRM Bowser’s conviction.

I.

A.

On December 7, 2010, Bowser was charged in federal court with (1) conspiracy to distribute and possess with intent to *523 distribute marijuana; and (2) possession with intent to distribute marijuana. Bow-ser thereafter filed a motion to suppress the marijuana that was seized from Bow-ser’s residence by two law enforcement officers who, at the time, were conducting a “knock and talk” interview with Bowser. The motion to suppress triggered two evi-dentiary hearings before Magistrate Judge Greeley. Four witnesses testified at the hearings: United States Drug Enforcement Agency (“DEA”) Special Agent Jeffrey Poikey (“Poikey”), Michigan State Police Detective/Trooper Christopher Croley (“Croley”), Lindsay Treado (“Treado”) (Bowser’s live-in girlfriend), and Bowser. The testimony of the two officers regarding the relevant facts was entirely different from the testimony of Bowser and Treado. Judge Greeley explicitly found that “the testimony of Special Agent Poi-key and Detective Trooper Croley was credible” and “the testimony of [Bowser] and Ms. Treado was not credible.”

The credible testimony established the following:

During the summer of 2010, Michigan’s Upper Peninsula Substance Enforcement Team (“UPSET”) and special agents from the DEA investigated a large outdoor marijuana-growing operation in Iron County, Michigan. Poikey and Croley were both involved in that investigation.

Sergio Placencia-Cruz was a suspect in the Iron County investigation. After Pla-cencia-Cruz was seen getting into a truck registered to Bowser, Poikey and Croley went to Bowser’s residence to see if they could conduct a “knock and talk” interview with Bowser. Knowing that Bowser — a convicted felon — had previously cooperated with UPSET in a narcotics investigation, the officers were hopeful that Bowser would be cooperative and provide them with useful information. The officers did not have a warrant.

Treado answered the door when the officers arrived and allowed them to enter the house. Bowser arrived home a few minutes later. When the officers asked to speak with Bowser in private, Bowser led the officers down a hallway to an office in the back of the house. Once in the room, Bowser realized that a pipe and two small bags of marijuana were sitting on the desk. He quickly turned around and suggested to the officers that they talk in another room. His suggestion came too late, however, because the officers had already detected the odor of marijuana and had seen the baggies of marijuana on the desk. Until the drugs were secured, the officers were unwilling to move to another room. While Poikey informed Bowser that he (Poikey) was not greatly concerned about a couple of ounces of marijuana, Croley took possession of the drugs and paraphernalia, placing them in a bag provided by Treado. Bowser was not arrested, did not renew his request to move to another room, and assured the officers that he wanted to cooperate. What followed was a lengthy interview lasting almost an hour and a half, an interview during which Bowser willingly provided information about his drug activities, about his drug sources, about the quantities and people with which/whom he was involved, about guns, and about his finances. Bow-ser repeatedly stated throughout the interview that he wanted to cooperate with the officers.

About halfway through the interview, Croley noticed a cooler tucked underneath the L-shaped desk where Bowser was sitting. When Croley asked what was in the cooler, Bowser said without hesitation that it contained “more weed.” On his own initiative, Bowser moved his desk chair, pulled the cooler out from under the desk, and pushed it over to Poikey, who immediately opened the cooler and removed three *524 large bags of marijuana. Poikey did not ask for Bowser’s permission to open the cooler. Neither Poikey nor Croley searched any other area in Bowser’s house.

The interview was ultimately terminated at Bowser’s request. Bowser explained that he was expecting company and he did not want his company — a good friend of his marijuana source — to see the officers. The officers agreed that it would be prudent for them to leave before Bowser’s company arrived. Bowser assured the officers that he wanted to continue his cooperation, and it was agreed that the interview would be resumed at another time.

B.

Based on the credible evidence adduced at the two suppression hearings, Magistrate Judge Greeley recommended to the district court that Bowser’s motion to suppress the marijuana found in the cooler be denied. The district court adopted that recommendation, stating:

[T]he Magistrate Judge properly found that [Bowser’s] cooperative attitude extended to notifying the officers that there was marijuana in the cooler and sliding the cooler over to Special Agent Poikey. The Court is satisfied that the totality of the evidence supports a finding that [Bowser] gave the officers implied consent to search the cooler, and that the consent was unequivocal, specific, intelligently given, and uncontaminated by duress or coercion.

Bowser thereafter entered into a conditional plea agreement with the government, pleading guilty to Count 2 of the indictment, which charged him with possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Bowser reserved his right to seek review of the district court’s finding that he “gave the officers implied consent to search the cooler, and that the consent was unequivocal, specific, intelligently given, and uncontaminated by duress or coercion.” Count 1 of the indictment, charging him with a conspiracy to possess marijuana with the intent to distribute, was dismissed at the time of sentencing. After judgment was entered, Bowser filed this appeal.

II.

We review the denial of a motion to suppress for clear error as to factual findings and de novo as to conclusions of law. United States v. Richardson, 385 F.3d 625, 629 (6th Cir.2004). Whether a defendant voluntarily gave his consent to a search is a factual issue and is therefore reviewed for clear error. United States v. Erwin, 155 F.3d 818, 822 (6th Cir.1998) (en banc). When reviewing the denial of a motion to suppress, we must consider evidence in the light most favorable to the government. Id. We must also “give deference to the district court’s assessment of credibility inasmuch as the court was in the best position to make such a determination.” United States v.

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Bluebook (online)
505 F. App'x 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-christopher-bowser-ca6-2012.