USA v. Walter Eugene Stone

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13710
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-00340-CG-B-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER EUGENE STONE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(February 27, 2013)
Before CARNES, HULL, and JORDAN, Circuit Judges.
PER CURIAM:
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Walter Stone appeals his conviction for possession of an unregistered
firearm in violation of 26 U.S.C. § 5861(d). He contends that the firearm was
found during an illegal search of his home.
I.
On August 2, 2011 Baldwin County Sheriff’s Deputies Clarence Herring and
Jason Selph went to Stone’s home to execute an arrest warrant. The arrest warrant
was issued because Stone was having contact with minors in violation of
conditions imposed on his bond after he was charged with sexual abuse of a child
under the age of 12. When the deputies arrived at Stone’s home, they knocked on
the door and a boy who appeared to be about 8 years old opened the door. The boy
told Deputy Herring that Stone was his uncle and that he was living there. Deputy
Herring asked if Stone was in the house, and the boy indicated that he was. A girl
who appeared to be about 10 or 11 years old then appeared at the door, followed by
Stone. Deputy Herring asked Stone to step outside, and placed him into custody
and put him the back of his patrol car.
Deputy Herring then called the Baldwin County District Attorney’s Office to
ask what he should do about the fact two children appeared to be living in Stone’s
home. An assistant district attorney told him to make sure the children had a safe
place to live. Deputy Herring went back to the front door and spoke with Mrs.
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Stone1 to ask permission to see where the children were staying. Mrs. Stone
consented and pointed to the children’s bedroom. According to Deputy Herring,
Mrs. Stone consented to his entering the bedroom to look around, but according to
her, she told him that he could only open the door and look inside.
Deputy Herring then entered the bedroom, where he observed a gun rack
hanging on the wall. The gun rack was next to the doorway and would not have
been visible if Deputy Herring had not gone inside the room. On the gun rack
were four firearms, including a sawed-off shotgun that was not registered in the
National Firearms Registration Transfer Record. The children told the deputy that
the guns belonged to Stone, but Mrs. Stone claimed that they belonged to her son.
Deputy Herring obtained written consent from Mrs. Stone to search the entire
house, and then went to speak with Stone, who admitted that the firearms in the
bedroom belonged to him.
II.
Stone was indicted for possession of an unregistered firearm in violation of
26 U.S.C. § 5861(d). Stone moved to suppress the sawed-off shotgun, contending
that the search of the bedroom was unlawful because Deputy Herring exceeded the
scope of Mrs. Stone’s verbal consent. After conducting an evidentiary hearing and
hearing testimony from Mrs. Stone, Deputy Herring, and Deputy Selph, the court
1 To avoid confusion, we refer to the defendant as “Stone” and his wife as “Mrs. Stone.”
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denied the motion to suppress. Stone then pleaded guilty to the charged offense
but reserved the right to appeal the denial of the motion to suppress. This is his
appeal.
The district court’s ruling on the motion to suppress presents a mixed
question of law and fact. United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir.
2009). We review its factual findings for clear error, viewing the facts in the light
most favorable to the prevailing party, which in this case is the government. Id.
We review de novo its conclusions of law. Id.
The Fourth Amendment protects a person’s right to be free from
“unreasonable searches and seizures.” U.S. Const. Amend. IV. A search of a
person’s home is not unreasonable and does not violate the Fourth Amendment
when there is valid consent. Stone does not dispute that Mrs. Stone had the
authority to consent to the search of the home or the children’s bedroom. See
United States v. Backus, 349 F.3d 1298, 1299 (11th Cir. 2003) (“A spouse who
jointly owns and occupies the marital home with the defendant may consent to a
search of it with the same effect as if the defendant himself had done so.”). The
only issue before us is whether Deputy Herring’s entry into the bedroom exceeded
the scope of Mrs. Stone’s verbal consent.
The district court heard conflicting testimony on that issue at the evidentiary
hearing. Mrs. Stone testified that Deputy Herring asked if he could “push the door
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open and look” inside the bedroom, and that she consented only to that. Deputy
Herring testified that Mrs. Stone never limited her permission to his standing at the
door and looking inside. He also testified that when he entered the bedroom she
did not object. The district court credited Deputy Herring’s testimony and
concluded that Mrs. Stone had consented to his entering the bedroom.
The district court’s determination that Deputy Herring’s testimony was more
credible than Mrs. Stone’s is not “contrary to the laws of nature” or “so
inconsistent or improbable on its face that no reasonable factfinder could accept
it.” United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004); see also United
States v. Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012) (stating that “we afford
substantial deference to the factfinder’s credibility determinations”); Owens v.
Wainwright, 698 F.2d 1111, 1113 (11th Cir. 1983) (“Appellate courts reviewing a
cold record give particular deference to credibility determinations of a fact-finder
who had the opportunity to see live testimony.”). Accordingly, the district court
did not clearly err by finding that the deputy’s entry into the bedroom was within
the scope of Mrs. Stone’s consent. Pineiro, 389 F.3d at 1366; see also United
States v. Foster, 155 F.3d 1329, 1331 (11th Cir. 1998) (“Where the evidence has
two possible interpretations, the district court’s choice between them cannot be
clearly erroneous.”) Because the district court did not clearly err by concluding
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that Mrs. Stone consented to the search, we affirm its denial of the motion to
suppress and Stone’s conviction.
AFFIRMED.
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