United States v. Jones , 242 F. App'x 175 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT July 25, 2007
Charles R. Fulbruge III
Clerk
No. 06-60477
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CURTIS NEAL JONES, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
(3:04-CR-163)
Before DAVIS, WIENER, AND BARKSDALE, Circuit Judges.
PER CURIAM:*
Curtis Neal Jones, Jr. appeals the district court’s denial of
his motion to suppress evidence supporting his bench-trial
conviction for possession of two firearms and ammunition by a
convicted felon and possession of body armor by a person convicted
of a crime of violence.
At the suppression hearing, an Officer from the Hinds County
Sheriff’s Office testified: the office received a narcotics
complaint for Jones’ residence; in response, Deputies went to his
*
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this opinion should not be published and is not precedent except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.
residence and knocked on the door; Jones answered and produced
identification as requested; upon being told the Deputies were
investigating a narcotics complaint, Jones responded that he did
not have any drugs; Jones answered affirmatively to a Deputy’s
asking if he could search his bedroom; the Deputy told Jones that,
because he (the Deputy) did not have a warrant, Jones could stop
the search at any time; and Jones was advised of his Miranda
rights.
While searching Jones’ bedroom, the Deputy observed an open
bag containing a bulletproof vest and a black leather case
containing firearms. After obtaining a search warrant, a Deputy
resumed the search and found two boxes of ammunition.
Jones claims he did not consent to the search and, because the
Deputies did not have a warrant, the search was unconstitutional.
He contends that, before Deputies can gain an occupant’s consent
with the “knock and talk” approach, they must reasonably suspect
criminal activity is afoot. He further contends his conviction
should be set aside because the Deputies testified untruthfully.
For a motion to suppress, we review the district court’s legal
conclusions de novo; its findings of fact for clear error, viewing
the evidence in the light most favorable to the Government. E.g.,
United States v. Charles, 469 F.3d 402, 405 (5th Cir. 2006), cert.
denied, 127 S. Ct. 1505 (2007). Jones’ claim that false testimony
was used to obtain his conviction is a mixed question of law and
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fact. We review the underlying facts for abuse of discretion; the
legal conclusions based on those facts, de novo. E.g., United
States v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997).
“Federal courts have recognized the ‘knock and talk’ strategy
as a reasonable investigative tool when officers seek to gain an
occupant’s consent to search or when officers reasonably suspect
criminal activity.” United States v. Jones, 239 F.3d 716, 720 (5th
Cir. 2001). Here, the Deputies properly employed the “knock and
talk” strategy to seek Jones’ consent. Accordingly, we must
consider whether Jones voluntarily consented to the search.
Voluntariness, a question of fact, is determined according to
a six-factor test: (1) Jones’ custodial status; (2) the presence
or absence of coercive law-enforcement tactics; (3) the nature and
extent of Jones’ cooperation with the Deputies; (4) his knowledge
of his ability to decline to give consent; (5) his intelligence and
educational background; and (6) his belief that no incriminating
evidence will be found. United States v. Rivas, 99 F.3d 170, 175-
76 (5th Cir. 1996).
In denying Jones’ motion to suppress, the district court
analyzed these factors, noting: Jones was at home, not in custody
when he consented to the search; the Deputies were investigating a
complaint of narcotics activity and there was no evidence of
coercive law-enforcement tactics; Jones remained cooperative
throughout the investigation by consenting to the search, waiving
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his Miranda rights, and speaking with Deputies on two separate
occasions; there was no indication Jones lacked the education or
intelligence to understand he was waiving his rights by consenting;
and Jones arguably believed his residence contained no
incriminating evidence by telling Deputies he did not have
narcotics. The district court applied the proper legal standard,
and the factual findings made pursuant to that standard are not
clearly erroneous.
Jones further claims that, because a Deputy testified at trial
that the Deputies went to his apartment after receiving a call from
an unknown person rather than a reliable confidential informant, as
one Deputy stated in an affidavit to obtain the search warrant, his
conviction should be set aside. For a conviction obtained through
use of false evidence, known to be such by representatives of the
Government, a new trial will be granted only if “(1) the statements
in question are shown to be actually false; (2) the prosecution
knew that they were false; and (3) the statements were material”.
O’Keefe, 128 F.3d at 893. At trial, the defense cross-examined one
of the Deputies about the alleged discrepancy. The court
explicitly found the testifying Deputy credible. Furthermore, the
firearms and bulletproof vest were uncovered during the search
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pursuant to Jones’ consent, making the discrepancy regarding the
tipster immaterial to his conviction.
AFFIRMED
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