United States of America v. David Noe

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3378
___________
UNITED STATES OF AMERICA,
v.
DAVID NOE,
Appellant
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 07-cr-00011-1)
District Judge: Honorable James Knoll Gardner
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 17, 2009
Before: RENDELL, FUENTES, and ROTH Circuit Judges.
(Opinion Filed: August 13, 2009 )
OPINION OF THE COURT

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The District Court had jurisdiction under 18 U.S.C. § 3231 and we have1
jurisdiction under 28 U.S.C. § 1291.
2
FUENTES, Circuit Judge:
Appellant David Noe appeals his judgment of conviction, claiming that the District
Court erroneously denied his motions to dismiss the indictment and to suppress evidence
and statements. For the reasons discussed below, we will affirm.1
I.
Because we write only for the parties, a brief recitation of the facts will suffice.
This case originated in a Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”)
investigation of Noe’s live-in girlfriend, Kimberly Williams. In April 2006, the ATF
learned that Williams had purchased eight firearms within a short period of time. The
ATF further determined that Noe, who had a prior felony conviction for unlawful
possession of a handgun, was residing at the same address as Williams. Concerned that
something unseemly was afoot, the ATF assigned agents Curry and Zubaty to investigate
further.
The agents went to the Exxon station where Williams worked as an assistant
manager. They explained to Williams that they were investigating her purchase of
multiple firearms and requested permission to enter her home to see the firearms and
verify that she was still in possession of them. Williams told the agents that she would
not consent to them entering her home because it was “too messy,” but instead offered to

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3
enter her home on her own, get the firearms, and bring them outside so the agents could
perform their check. The agents agreed to Williams’s proposal and allowed her to enter
the home unescorted. Williams obtained the weapons, but unexpectedly presented the
officers with eleven firearms, not eight. She acknowledged that three of the firearms
belonged to Noe, and she permitted the agents to seize the firearms.
Both parties agree with the narrative presented above. The dispute in this case
focuses on one comment that may or may not have been made by the agents prior to the
seizure. At some point while at the gas station, Williams asked the agents if they had a
warrant and Agent Zubaty replied that they did not. Williams testified that Agent Zubaty
followed that comment by saying “but we can get one.” Agent Curry, on the other hand,
testified that he was “pretty positive” that they did not say they could get a warrant.
Zubaty did not testify, and there were no other witnesses to the exchange.
Following the seizure of the firearms, Noe contacted the ATF and attempted to
explain the origin of the three extra weapons. Soon thereafter, Noe was charged in the
Eastern District of Pennsylvania in an indictment alleging one count of possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Noe moved to dismiss the
indictment, arguing that § 922(g)(1) exceeds Congress’s authority under the Commerce
Clause, and to suppress evidence and statements, arguing that Williams had not
voluntarily consented to the search. The District Court denied both motions.
Noe conditionally pled guilty to the indictment, reserving the right to appeal the

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Noe subsequently violated the terms of his supervised release while this appeal2
was pending and was sentenced to jail time.
4
District Court’s denial of his pretrial motions. As part of the plea, the Government
conceded that Noe only had the guns for “collection” purposes and had not unlawfully
used them. On August 1, 2008, the District Court sentenced Noe to five years supervised
release and a special assessment of $100. Noe timely appealed.2
II.
As an initial matter, Noe challenges the constitutionality of the felon-in-possession
statute. 18 U.S.C. § 922(g)(1). He argues that the intrastate possession of a firearm does
not have a substantial effect upon interstate commerce and, thus, does not constitute the
basis for a valid exercise of congressional authority under the Commerce Clause. We
specifically addressed this issue in United States v. Singletary, 268 F.3d 196 (3d Cir.
2001), and held that § 922(g)(1) was an appropriate exercise of Congress’s authority
under the Commerce Clause. Id. at 205. As we have already decided this issue, we need
not revisit it here.
We review the District Court’s denial of a motion to suppress for “clear error as to
the underlying facts,” but we exercise “plenary review as to its legality in light of the
court’s properly found facts.” United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003)
(internal quotation marks omitted). Noe disputes the District Court’s finding that
Williams gave voluntary consent to retrieve firearms from her house in order to give them
to the ATF agents. “[W]hether a consent to a search is in fact ‘voluntary’ or is the

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5
product of duress or coercion, express or implied, is a question of fact to be determined
from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218,
227 (1973). In making this determination, courts assess both the characteristics of the
individual and the details of the encounter, including factors such as the age, intelligence,
and educational background of the individual; the length of the encounter; the repeated
and prolonged nature of the questioning; the use of, or lack of, threats or physical
punishment; and whether the individual was advised of his or her constitutional rights,
including the right to refuse to consent. Id. at 226 (citations omitted); see also United
States v. Kim, 27 F.3d 947, 955 (3d Cir. 1994). Also relevant are “the setting in which
the consent was obtained [and] the parties’ verbal and non-verbal actions.” Givan, 320
F.3d at 459. No one factor is dispositive. Schneckloth, 412 U.S. at 226. The ultimate
question is whether, under all the circumstances, the consent was the free and
unconstrained choice of its maker. Id. It is the government’s burden to establish
voluntariness by a preponderance of the evidence. United States v. Sebetich, 776 F.2d
412, 424 (3d Cir. 1985).
Noe bases his argument primarily on the claim that the ATF agents threatened
Williams that they would obtain a search warrant if she refused to consent to the search
and seizure of the firearms. As Noe correctly points out, it is well-established that when
evidence shows that a person believes she must consent to a search, this “weighs heavily
against a finding that consent was voluntarily given.” United States v. Molt, 589 F.2d
1247, 1251 (3d Cir. 1978); see Schneckloth, 412 U.S. at 233-34 (citing Bumper v. North

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We clarified, however, that a statement by an officer that he would merely attempt3
to obtain a warrant would not weigh against a finding of voluntary consent. Sebetich, 776
F.2d at 425 (citations omitted).
We have, however, expressly declined to “establish a blanket rule that, whenever4
police . . . falsely claim they can obtain [a search warrant], voluntariness is necessarily
vitiated; indeed Schneckloth mandates consideration of all the surrounding
circumstances.” Sebetich, 776 F.2d at 424. Thus, even if the agents had, indeed,
threatened to obtain a warrant, that would constitute but one factor in the overall
determination of voluntariness of the consent.
6
Carolina, 391 U.S. 543, 548-49 (1968)). “And when that belief stems directly from
misrepresentations made by government agents, however innocently made, we deem the
consent even more questionable.” Molt, 589 F.2d at 1251-52 (finding consent
involuntary where agents misrepresented their statutory authority). In United States v.
Sebetich we expressed concern that statements by law enforcement officers suggesting
that acquiring a warrant would be a foregone conclusion might convey an impression that
the individual has no choice but to consent. 776 F.2d at 425. Under such circumstances,3
consent might be vitiated where probable cause to support the issuance of a warrant is, in
fact, lacking. See id. at 424.4
Noe contends that the District Court failed to make specific findings or even
address Williams’s testimony that the ATF agents threatened to secure a warrant if she
refused consent and that she believed she had no choice but to go back to the house and
get the weapons. Accordingly, he argues that the District Court clearly erred in asserting
that there was “nothing in the record of this case to suggest that the consent given by Miss
Williams was the product of any coercion, duress or improper tactics by law

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enforcement.” United States v. Noe, No. 07-CR-11, 2008 WL 4211672, at *6 (E.D. Pa.
Sept. 12, 2008). We disagree. We find support in the record that the District Court
considered and weighed the contradictory testimony before determining that Williams had
voluntarily consented to the seizure. Although we agree with Noe that the District Court
might well have been more explicit in its findings of fact, there are no critical unresolved
factual issues that prevent us from properly reviewing the District Court’s findings.
The record before us indicates that the District Court acknowledged the testimony
of Williams on several occasions. During the argument at the suppression hearing, the
District Court expressly stated that it understood Noe’s central argument to concern the
voluntariness of Williams’s decision to consent. Similarly, in its Memorandum Opinion,
the District Court noted that Noe “alleges that Miss Williams was coerced into retrieving
the guns by the ATF agents who told her that they were going to come in the house to
verify what she was saying.” Id. at *3. More specifically to the claim raised by Noe, the
District Court said, “I must examine the testimony of the witnesses to determine whether
valid consent for the seizure of the weapons was given by Miss Williams.” Id. at *5
(emphasis added). The District Court then explained, in detail, its determination that
there was “no coercion involved in obtaining this consent.” Id. Importantly, the District
Court had noted early in its Memorandum Opinion that, in making factual findings, it
considered “the pleadings, the testimony of the witnesses and defense exhibit presented at
the hearing” and made “credibility determinations.” Id. at *1. Thus, we can plainly infer
that the judge evaluated the testimony of both Williams and Zubaty – the only two

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witnesses in this case – and then based his decision about Agent Curry’s alleged
statement on the credibility of those two witnesses.
Having established that the District Court did, in fact, take William’s testimony
into consideration, the core issue in this appeal then becomes whether there is any
evidence to support the District Court’s conclusion that Williams’s consent was
voluntary. Under the clear error standard, we will uphold the District Court’s factual
findings unless they are “completely devoid of minimum evidentiary support displaying
some hue of credibility,” or “bear[] no rational relationship to the supportive evidentiary
data.” United States v. Antoon, 933 F.2d 200, 204 (3d Cir. 1991). A trial judge’s factual
findings which are based on the credibility of witnesses are entitled to great deference.
As the Supreme Court has explained, “when a trial judge’s finding is based on his
decision to credit the testimony of one of two or more witnesses, each of whom has told a
coherent and facially plausible story that is not contradicted by extrinsic evidence, that
finding, if not internally inconsistent, can virtually never be clear error.” Anderson v.
City of Bessemer City, 470 U.S. 564, 575 (1985). See also United States v. Igbonwa, 120
F.3d 437, 441 (3d Cir. 1997) (applying the rule in a criminal case). Thus, “[w]here there
are two permissible views of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.” Anderson, 470 U.S. at 574 (1985).
We find sufficient support in the record for the District Court's determination that
consent was voluntarily given. Williams was contacted by telephone and informed by a
coworker that there were two agents waiting to speak with her in the parking lot at her

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place of employment. Williams went to meet with the agents on her own accord. When
she arrived, the agents were in plain clothes, were properly identified as agents, and had
no visible weapons. In an exchange of limited words and duration, Williams declined to
allow the agents entry into her home but volunteered to bring the firearms outside for
their inspection. She said she needed half an hour to retrieve the firearms and the agents
acquiesced, despite concerns for their own safety. At no time did the agents enter the
residence.
At the hearing, Williams testified inconsistently about whether she believed she
had a choice in retrieving the firearms. In addition, Williams stated affirmatively that she
turned over the firearms because she wanted to “cooperate” with the agents, (App. 133),
and that she told the agents: “[i]f it would make it easier, just take them all,” further
indicating the voluntary nature of her consent, (App. 130).
Based on our overall review of the record, we cannot say that the District Court
committed clear error in finding that Williams gave voluntary consent to the seizure.
Accordingly, we will defer to the judgment of the District Court.
III.
For the foregoing reasons, we affirm.

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