United States v. Pennywell

119 F. App'x 653

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 7, 2005
• Docket: 04-30636
• Status: Unpublished

Opinion

PER CURIAM: *

Calvin W. Pennywell, Jr., entered a conditional guilty plea to possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and possession of firearms in relation to drug trafficking, in violation of 18 U.S.C. § 924(c)(1). He now appeals the district court’s denial of his suppression motion. He argues that the district court erroneously determined that he voluntarily consented to entry by police into his residence, where they subsequently found firearms, cash, and drugs.

Voluntary consent to a search is an exception to the general rule that warrant-less searches are per se invalid. See Schneckloth v. Bustamante, 412 U.S, 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The Government has the burden of proving by a preponderance of the evidence that consent was given freely and voluntarily. Id. at 222. Such a finding of fact is reviewed for clear error. United States v. Tompkins, 130 F.3d 117, 121 (5th Cir.1997). ‘Voluntarily” means not coerced by threat or force and not granted only in submission to a claim of lawful authority. Schneckloth, 412 U.S. at 233.

Two police officers testified that Penny-well consented to a request to enter and look around when officers knocked on his door in response to a complaint about narcotics activity and weapons at the residence. Pennywell testified that he responded negatively when police asked if they could enter. We conclude that the district court’s finding of voluntary consent was not clearly erroneous. See Tompkins, 130 F.3d at 121; see also United States v. Garza, 118 F.3d 278, 283 (5th Cir.1997).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.