United States v. Fisher

27 F. App'x 558
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 13, 2001
DocketNo. 00-3580
StatusPublished
Cited by3 cases

This text of 27 F. App'x 558 (United States v. Fisher) 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. Fisher, 27 F. App'x 558 (6th Cir. 2001).

Opinion

NELSON, Circuit Judge.

This is an appeal from a judgment of conviction and sentence on a cocaine charge. The defendant contends that the district court erred in denying a motion to suppress evidence of the crime and in calculating the defendant’s criminal history score under the sentencing guidelines. Finding no reversible error, we shall affirm the challenged judgment.

I

On April 20, 1999, the defendant, Beatrice Fisher, was a passenger on America West Flight 67 from Los Angeles, California, to Columbus, Ohio. Two police detectives assigned to the Drug Enforcement Agency’s multi-jurisdictional task force in Columbus, Colleen Mitchell and Debbie Corbett, received information from a confidential informant regarding a drug courier on Flight 67. The source indicated that the courier’s name was Beatrice Fisher. The detectives ascertained that a passenger with that name was seated near the middle of the plane, had used cash to purchase tickets costing over $900, and had not checked any baggage.

Detectives Mitchell and Corbett stationed themselves at the gate where the passengers on Flight 67 were disembarking. Observing a woman they thought might be the courier, the detectives followed her from the gate to the baggage claim area. When the woman headed for the exit without claiming any checked luggage, the detectives — who were not in uniform — approached her, identified themselves as police officers, and showed her their badges. Referring, apparently, to a “random check for narcotics,” Detective Mitchell asked to see the woman’s ticket and identification. The woman — who was specifically told she was not under arrest — identified herself as Beatrice Fisher.

The detectives sought and obtained the defendant’s consent to a search of her carry-on bag. The search of the bag disclosed no evidence of illegal drugs. At a subsequent evidentiary hearing the detectives testified that they then asked the defendant’s permission to perform a pat-down search of her person. The detectives testified that the defendant agreed. The defendant contradicted this testimony, stating that she was not asked for such permission and would not have given it if she had been asked. All parties stated that the defendant was shaking visibly and looking around nervously during the conversation.

Prior to the search the detectives escorted the defendant, with her consent, to a private office maintained at the airport by the Drug Enforcement Agency. There Detective Mitchell searched the defendant by hand. Strapped to the defendant’s body, the search disclosed, were six packages of cocaine with a total weight of 7.2 pounds.

In due course the defendant was indicted on a charge of possessing over 500 grams of cocaine with intent to distribute it, a violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(B)(ii). When the district court overruled her motion to suppress, the defendant entered a conditional plea of guilty and reserved the right to appellate review of the denial of the suppression motion. See Fed.R.Crim.P. 11(a)(2). The court im[560]*560posed a sentence of imprisonment for a term of 70 months, and this appeal followed.

II

A

In an appeal of a district court’s ruling on a motion to suppress evidence, this court reviews factual findings for clear error. United States v. Ivy, 165 F.3d 397, 401 (6th Cir.1998). Such findings are overturned only if the reviewing court has the “definite and firm conviction that a mistake has been committed.” United States v. Worley, 193 F.3d 380, 384 (6th Cir.1999).

In the case at bar the defendant raises two search and seizure issues: whether it was open to the district court to find that she gave verbal consent to a search of her person and, if so, whether the court could properly find that the consent was free and voluntary. The district court’s findings on both questions are subject to review under the “clearly erroneous” standard. See Ivy, 165 F.3d at 401.

The defendant contends first that the district court erred in rejecting her testimony that she never consented to a search of her person and in crediting the contrary testimony of the detectives. Factual findings grounded in this type of credibility assessment are seldom reversed on appeal. If there are two permissible views of the testimony at issue, “the fact finder’s choice between them cannot be clearly erroneous.” Id. at 401-02.

Both Detective Mitchell and Detective Corbett testified that the defendant said “o.k.” to their request for permission to search. The district court explicitly found both detectives to be “credible and reliable” and found the defendant’s testimony unreliable. The question of whether the defendant did or did not give verbal consent depends entirely on this credibility assessment. Although we might have assessed the evidence differently had we been determining the facts in the first instance, we are in no position to say that the district court’s determination was clearly erroneous.

The defendant maintains that even if she did consent to the body search, such consent was not “voluntary” within the meaning of Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). “A court will determine whether consent is free and voluntary by examining the totality of the circumstances.” United States v. Riascos-Suarez, 73 F.3d 616, 625 (6th Cir.l996)(citing Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041). The government must prove voluntary consent by a preponderance of the evidence, presenting clear and positive testimony on the issue. Id. Because the specific facts of drug seizures vary widely, however, appellate courts depend heavily on the “fact-finding capability and the integrity of the trial judge who presided at the evidentiary hearing.” United States v. Williams, 754 F.2d 672, 676 (6th Cir.1985).

Among the circumstances to which courts pay particularly close attention in assessing voluntariness are the defendant’s age, intelligence and education, whether or not the defendant understands that she may refuse to consent, and whether or not the defendant understands her constitutional rights. Ivy, 165 F.3d at 402. Courts also consider the length and nature of the questioning, looking for overt or covert coercion that might vitiate consent. Id.

The defendant in this case was 18 years old at the time of the search. She had completed the 10th grade and was enrolled in continuation school. The detectives did not and were not required to inform the defendant of her right to refuse a search, but a defendant’s knowledge of her right [561]*561to refuse is part of the totality of the circumstances. See Worley, 193 F.3d at 386-87.

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Bluebook (online)
27 F. App'x 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fisher-ca6-2001.