USA v. Vernon Oldham

Filing

OPINION filed : AFFIRMED, decision not for publication. Damon J. Keith, Circuit Judge; Boyce F. Martin , Jr., Circuit Judge and John M. Rogers, Authoring Circuit Judge.

Case: 11-6235

Document: 006111512640

Filed: 11/28/2012

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1227n.06

FILED

No. 11-6235

Nov 28, 2012

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
VERNON EARL OLDHAM
Defendant-Appellant

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DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE

BEFORE: KEITH, MARTIN, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Vernon Earl Oldham pled guilty to being a felon in possession of
a firearm. He now appeals his conviction, challenging the district court’s denial of his motion to
suppress the weapon. The district court credited the testimony of two police officers that a search
of Oldham was consensual and that, even if were not, the officers had reasonable suspicion to stop,
and then to search Oldham. Nothing in the record casts significant doubt on the veracity of the
officers' testimony. The district court properly denied Oldham’s motion to suppress.
On February 23, 2011, at approximately 5:00p.m., Metro Nashville Police Department
Officers Conrad Straub and Matthew Boguskie were investigating a vehicle accident when an elderly
man got their attention. The man informed the officers that there was an individual at a nearby
intersection flagging down cars and asking for money. The man stated that the individual “didn’t
look right” and had scared the man to the point where he rolled through the stop sign. A few minutes

Case: 11-6235

Document: 006111512640

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No. 11-6235
United States of America v. Vernon Earl Oldham
later, Officer Straub traveled to the intersection and saw Oldham approaching cars stopped at a fourway stop sign and knocking on their windows. Officer Straub parked his car at the intersection,
exited his vehicle, and approached Oldham. Officer Straub asked Oldham to walk across the street
to talk and Oldham complied. Officer Boguskie, arriving soon after, witnessed Officer Straub and
Oldham crossing the street together. The officers noticed that Oldham reached for his pants pockets
multiple times, and they repeatedly warned him not to do so. The officers asked for, and obtained,
Oldham’s consent to pat him down. In the course of the pat-down, Officer Boguskie discovered a
sawed-off 12-gauge Savage Arms shotgun concealed in Oldham’s waistband. At that point, the
officers took Oldham into custody. A criminal history check later revealed that Oldham had
previously been convicted of several felonies.
Oldham was charged with being a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1), 924. Oldham moved to suppress all evidence found as a result of the encounter,
arguing that the officers found the evidence as a result of an illegal seizure and subsequent search.
Oldham claims that Officer Straub grabbed Oldham’s arm, forced it behind his back, and marched
him across the street to the officer’s patrol car. Oldham denies putting his hands in his pockets,
claiming that he was merely trying to hold up his baggy pants, and denies giving the officers
permission to pat him down. The district court held an evidentiary hearing on the motion, during
which Officers Straub and Boguskie testified for the Government and Oldham testified on his own
behalf.

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The district court denied the motion to suppress. The district court credited the testimony
of the officers at the hearing and their police reports, finding that Oldham willingly crossed the street
with Officer Straub and consented to the pat-down search. The district court also found that the
officers had reasonable suspicion to detain and pat down Oldham. Oldham then entered a
conditional guilty plea, reserving the right to appeal the ruling on the motion to suppress. The
district court sentenced Oldham to 60 months in prison, three months of supervised release, and a
$100 assessment. Oldham now appeals the denial of his motion to suppress.
The district court did not commit clear error in crediting the officers’ testimony that the
encounter and pat-down search were consensual. Nothing in the officers’ reports, in their testimony,
or in any evidence contradicts their version of the events.
There ‘can virtually never be clear error’ where the ‘trial judge's finding is based on
[her] 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,’ and where that finding is ‘not internally inconsistent.’
Brooks v. Tennessee, 626 F.3d 878, 897 (6th Cir. 2010) (quoting Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 575 (1985)). The district judge credited the officers’ testimony, which is
uncontradicted by anything but Oldham’s testimony. That determination cannot constitute clear
error.
Oldham notes several minor inconsistencies in Officer Straub’s testimony. However, they
concerned insignificant issues, and the district court was entitled to disregard them. Whether Officer
Straub questioned Oldham before they crossed the street or after has no bearing on whether Oldham
consented to crossing the street. Likewise, while the question of whether Oldham was blocking
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traffic may be relevant to whether the officers had reasonable suspicion, it is not relevant to the
consent issue. Furthermore, Officer Straub’s testimony on cross-examination that Oldham first
reached for his pockets before rather than after crossing the street is neither inconsistent with the rest
of his testimony, which does not specify the first time Oldham put his hands in his pockets, nor
relevant to the consent question. Finally, Officer Boguskie’s testimony confirms Officer Straub’s
testimony and Officer Boguskie’s testimony is unchallenged. There is not enough in the record to
cast serious doubt on either officer’s testimony.
Accepting, as the district court properly did, the officers’ version of the facts, the officers did
not violate the Fourth Amendment. Oldham consented to crossing the street with the officers and
consented to the pat-down search. Voluntary consent is an exception to the Fourth Amendment’s
search warrant requirement. See Clemente v. Vaslo, 679 F.3d 482, 489 (6th Cir. 2012). Whether
consent was given voluntarily is determined by examining the totality of the circumstances, including
the consenting individual’s age, intelligence, and education; whether the individual understands his
constitutional rights; the length and nature of any detention; and whether the police used any
coercive or punishing conduct. U.S. v. Collins, 683 F.3d 697, 702 (6th Cir. 2012). In this case, the
officers did not coerce or threaten Oldham. They did not use physical force or make any show of
authority. Although Oldham has only an eighth-grade education, he is 27 years old and has had
several previous interactions with law enforcement. After accepting the officers’ testimony and
examining the totality of the circumstances, the district court could properly find that Oldham
voluntarily consented to the search.

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Case: 11-6235

Document: 006111512640

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No. 11-6235
United States of America v. Vernon Earl Oldham
For the foregoing reasons, we affirm the judgment of the district court.

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