UNITED STATES of America, Plaintiff-Appellee, v. Tremaine D. COWAN, Defendant-Appellant, 704 F. App'x 519

BOGGS, Circuit Judge. Perhaps the last thing one usually expects when exiting the bathroom is to find a police officer on the other side of the door. However, such was the situation Tre-maine Cowan discovered when he exited the restroom of a private home in February 2015. The question of this case is whether, upon being asked by that officer if he would consent to a pat-down for the officer’s safety, any agreement would be mere acquiescence rather than true consent. The district court held that Cowan had consented to the officer’s request.

Because Cowan had the opportunity to decline what the evidence describes as a cordial question and made no indication that he consented under protest or pressure, we affirm the district court’s holding and its denial of Cowan’s motion to suppress. I The police department of Wellsville, Ohio, serves the village’s 3,500 residents with fewer than ten full-time officers and three part-time officers. On the night of February 22, 2015, the department received a phone call from Miranda Devore.

She had been on the phone with her niece and had heard her niece’s boyfriend, Gerard Bryant, in the background yelling before the call was suddenly ended. Given a history of domestic violence by Bryant against her niece, Devore asked the police to check on her at an address on Maple Avenue. Patrolmen Steve Rodgers and Joseph Rayl were the only officers on duty and reported to the address, the home of Anita Kavanaugh and Bradley McKenzie. The home was known in the village as being connected with drug activity, and both par trolmen were familiar with the occupants.

They were also aware that there -was an arrest warrant out for Bryant, whom Rodgers knew from previous interactions. Upon arrival, Rayl went to the front door of the home and Rodgers went to the back door, in case Bryant fled in that direction. Rayl spoke to Kavanaugh, who said that Devore’s niece had just left, and. Rayl asked if the officers could search the house for Bryant. Kavanaugh agreed, and Rayl informed Rodgers of her consent before heading upstairs to look for Bryant. Rodgers entered through the back door and looked around the kitchen for signs of Bryant.

Seeing none, he went toward the stairs, where he saw McKenzie attempting to force open a door using a butter knife and speaking with someone inside the locked room. Rodgers asked McKenzie who was behind the door, but McKenzie did not respond, instead continuing his efforts to open the door. The door came open, and Tremaine Cowan emerged from what was revealed to be a bathroom. Co-wan and Rodgers were about two feet apart in the space between the stairs and the bathroom.

Rodgers did not recognize Cowan and testified at the suppression hearing that he asked for his name, and Cowan gave it as Deon Johnson — in fact his brother’s name. Rodgers further testified that he “asked [Cowan] if he could move to the side” so that I could pat him down for officer safety.” Cowan moved to the wall and put his hands against it so that Rodgers could pat him down. Again according to Rodgers, the conversation up to this point had been “cordial.” But as Rodgers patted down Cowan, he felt what he believed to be a large wad of money and then a gun in Cowan’s front pocket.

Shouting “Gun,” Rodgers pushed Cowan against the wall until Rayl could rush downstairs and disarm him. After Rayl took the loaded gun from Cowan’s pocket,' Cowan was handcuffed and brought to the police cruiser. At the cruiser, Rodgers patted down Cowan again and took out his Ohio state identification card from his pocket. The ID revealed Cowan’s true name along with his picture. Rodgers also seized a scale with cocaine, a cell phone, and $773 in cash. Rodgers called the Columbiana County Sheriffs Department and learned of an active warrant for Cowan’s arrest and that he was a convicted felon.

After Cowan was brought to the police station, he informed the police that he had another gun with him, which was then removed from his waistband arid found to be loaded. He also revealed that he was carrying cocaine in his pants. The police then found two bags of crack cocaine on Cowan. Cowan was charged in federal court with possessing a cocaine mixture of less than 28 grams with intent to distribute and with possession of two firearms after felony convictions.

Following his- indictment, Co-wan moved to suppress “any and all evidence obtained in violation of the Fourth Amendment, including but not limited to firearms and other contraband.” After an oral hearing at which Rodgers testified, the district court denied the motion to suppress, finding that Rodgers’s testimony that he requested permission to pat down Cowan was credible and that Cowan had consented to the initial pat-down.

After a premature appeal to this court, Cowan proceeded to a jury trial, where he was found not guilty on the indictment count regarding cocaine and was convicted on the second count for “being a felon in possession of a firearm or ammunition, in violation of 18 U.S.C. § 922(g)(1).” Following another premature appeal, Cowan was sentenced to 78 months in prison and now appeals the denial of the motion to suppress on the ground that he did not consent to the search. II A.

Standard of Review- We review a district court’s suppression motion under a mixed standard, assessing the district court’s findings of fact for clear error and its legal conclusions de novo. United States v. Akridge, 346 F.3d 618, 622 (6th Cir. 2003). When the district court has denied the motion to suppress, we review the evidence in the light most favorable to the government.

Ibid, Moreover, if a defendant has not renewed his motion to suppress following trial testimony, we are precluded from considering that evidence in our review of the district court’s denial, as the district court never had the initial opportunity to rule on it. United States v. McRae, 156 F.3d 708, 711 (6th Cir. 1998); see also United States v. Cooper, 39 Fed.Appx. 185, 192 (6th Cir. 2002). Finally, the question of consent is reviewed for clear error. See United States v. Lee, 793 F.3d 680, 684 (6th Cir. 2015). B. Whether Cowan Consented or Acquiesced With regard to the first pat-down, the stakes are high.

The government has conceded that, absent consent, there was no reasonable suspicion to search Cowan. And despite the broad nature of the motion to suppress, Cowan has limited his arguments to attacking the alleged consent to the initial pat-down. To provide‘some brief background, we observe that an officer may pat down “an armed and dangerous individual ... [where] a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Of course, “a search authorized by consent is wholly valid,” Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), but á prosecutor bears “the burden of proving that the consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Such burden “cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” Id. at 548-49, 88 S.Ct. 1788. In Bumper, the police arrived. at the petitioner’s grandmother’s home claiming to have a warrant to search the house. Id. at 546-47, 88 S.Ct. 1788.

The grandmother responded with, “Go ahead,” and the officers found a rifle. Id. at 546, 88 S.Ct. 1788. When the trial court held a hearing on the motion to suppress, the prosecutor disclaimed reliance on the alleged warrant, but stated instead that the grandmother had consented to the search. Ibid. The Court found that the woman had merely acquiesced to the officers “color-ably lawful coercion,” rather than provided consent. Id. at 550, 88 S.Ct. 1788.

Given our limited view of the evidence in light of Cowan’s failure to renew his motion to suppress, we will examine only those facts presented before the district court at the suppression hearing. According to Rodgers, he and Cowan were engaged in “cordial” conversation. While Rodgers was in uniform, he repeatedly testified that he had merely asked Cowan if he would put his hands on the wall for a pat-down.

This testimony was expressly found by the district court to be credible. “In reviewing the denial of a motion to suppress, Ve accord considerable deference to the credibility findings of the trial court.’” United States v. McCauley, 548 F.3d 440, 447 (6th Cir. 2008) (quoting United States v. Cooke, 915 F.2d 250, 252 (6th Cir. 1990)). The distinction between a question and command can be slippery. This court has found language that might be characterized as commands to be requests in the past. See, e.g., United States v.

Campbell, 486 F.3d 949, 956 (6th Cir. 2007) (holding that an officer’s statement, “I’d like to see some ID,” was a request); United States v. Matthews, 278 F.3d 560, 562 (6th Cir. 2002) (finding that an officer’s yell to a defendant, “Hey, buddy, come here,” was a “simple request[,] ... which the defendant could have politely declined”), abrogated on other grounds by Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). “[L]enguage or tone of voice indicating that compliance” is necessary can be indicative of a seizure. United States v.

Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). But here there was no testimony showing that the language used was coercive, merely Rodgers’s assertion that “I asked him if he could move to the side so that I could pat him down” in a cordial manner. Because there is insufficient evidence to demonstrate that the district court clearly erred in finding these facts, we must accept them. Moreover, the district court reviewed all of the evidence discussed in the dissent. The dissent highlights the four different ways that Rodgers described the encounter.

The district court specifically noted each of the times that the officer consistently stated that he “asked” the defendant to be patted down.

The court recognized that the officer’s police report could be interpreted to the contrary, but found that the choice of language there did not “mean[ ] that consent was not given.” Finally, the court specifically found that the officer was credible and concluded “that consent was given by the defendant for the search.” Of course a request by an officer does not mean that every affirmative response by a defendant is voluntary consent; on the contrary, if a reasonable person would have felt that he were not free to walk away and ignore an officer’s request, he is already seized. See United States v.

Richardson, 385 F.3d 625, 630 (6th Cir. 2004). The facts of this case do not demonstrate, however, that Cowan was unable to decline the officer’s request. True, Cowan had just emerged from the uncomfortable experience of being locked inside a bathroom to find a police officer standing two feet away. But proximity, while admittedly a factor, “is not the only one.” Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). In Bostick, the Supreme Court found that an encounter between police officers in a bus aisle and seated passengers was not per se a seizure. 501 U.S. at 437, 111 S.Ct. 2382.

Rodgers, having obtained Kavanaugh’s consent to enter, had as much right to be in her home as Cowan did. Much like the situation in Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), where INS agents had received permission from an employer to conduct a survey of employees at their workplace in search of illegal aliens, the only constraints on Co-wan were a function of the fact that both he and law enforcement officers were authorized to be in the same space.

Nothing from the record indicates that at that moment Cowan was compelled to comply and could not decline and either seek to be on his way or remain in Kavanaugh’s home, Finally, the Supreme Court’s decision in United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002), confirms our understanding of the situation here. There, much like Bostick, officers boarded a bus in Florida and began asking passengers if they could search their bags. The officers noticed two men wearing baggy clothing and asked one if he minded being searched. Id. at 198-99, 122 S.Ct. 2105.

The man consented, and officers patted him down, detected drug packages strapped to the man’s thighs, and took him off the bus in handcuffs. Id. at 199, 122 S.Ct. 2105. When they asked Drayton (in the adjacent seat) if they could pat him down (“Mind if I check you?”), Drayton “responded by lifting his hands.” Ibid. When an officer patted down Dray-ton, he discovered Drayton had taped bundles of cocaine to his thighs. Ibid. Drayton argued that he had been seized, but the Supreme Court held otherwise: The officers gave the passengers no reason to believe that they were required to answer the officers’ questions.

When Officer Lang approached respondents, he did not brandish a weapon or make any intimidating movements. He left the aisle free so that respondents could exit. He spoke to passengers one by one and in a polite, quiet voice. Nothing he said would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter. Id. at 208-04, 122 S.Ct. 2105. In those circumstances, even with his cotraveler led away before him, the Supreme Court found that Drayton had “no indication that he was required to consent to a search.” Id. at 206, 122 S.Ct. 2105.

In this case, Rodgers did not brandish his weapon or make intimidating movements. Although he was in front of Cowan when he stepped out of the bathroom, there is no evidence that Rodgers blocked Cowan’s path down the hallway. And Rodgers spoke to Cowan in a cordial manner. Therefore, the evidence does not suggest that Cowan was seized when he encountered Rodgers in Kavanaugh’s home. Cowan highlights Rodgers’s statement that Cowan “was going to get patted down for officer safety” regardless.

Fourth Amendment questions are examined objectively and an officer’s subjective motivations are not enough to transform a permissible search into an impermissible one. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). We need not evaluate the hypothetical situation of what Rodgers might have done had Cowan not consented except insofar as it might inform our perception of what he actually did, and only then if those actions would be objectively unreasonable.

But there is no evidence that Rodgers’s conviction that Cowan would be searched in any event had any effect on his actions and thus it merits no further consideration. Moving to the wall, even silently, demonstrates consent, and there was no indication that Cowan was acquiescing rather than consenting to Rodgers’s request. While this court has found in situations where a defendant has acquiesced no true consent was given, see, e.g., United States v.

Worley, 193 F.3d 380, 383 (6th Cir. 1999) (finding acquiescence rather than consent where a defendant responded to an officer’s request to look in his bag with “[Yjou’ve got the badge, I guess you can” (alteration in original)), it has also found that assuming the pat-down position can be evidence of consent. United States v. Chambers, 646 Fed.Appx. 445, 448 (2016); see also Drayton, 536 U.S. at 199, 122 S.Ct. 2105 (silently lifting hands was considered consent to a pat-down); United States v.

Wilson, 895 F.2d 168, 172 (4th Cir. 1990) (per curiam) (raising one’s arms at a request to pat down demonstrated nonverbal consent), cited in United States v. Anderson, 983 F.2d 1069, 1993 WL 2302, at *7 (6th Cir. 1993) (unpublished table decision). We have also found that consent can be given without speaking a word. See United States v. Ortiz, 455 Fed.Appx. 669, 671-72 (6th Cir. 2012) (holding that “stepping back, gesturing, and opening the door wider ... unambiguously conveyed” assent to officers’ request to enter).

Because “the question of voluntariness pervades both the search and seizure inquiries, the respective analyses turn on very similar facts.” Drayton, 536 U.S. at 206, 122 S.Ct. 2105. Rodgers asked Cowan if he could pat him down and provided a reason (officer safety) why he sought to do so — something he need not have done if he were simply demanding compliance. Where a citizen “advise[s] the police of his or her wishes and ... [the police] act in reliance on that understanding^] ... it dispels inferences of coercion.” Id. at 207, 122 S.Ct. 2105.

Again, although the burden is the government’s to demonstrate that “consent was voluntary, unequivocal, specific, intelligently given, and uncontaminated by duress or coercion,” the totality of the circumstances, given the available evidence, shows that Cowan responded to the officer’s request without displaying concern or hesitance. Chambers, 646 Fed.Appx. at 447 (quoting United States v. Lucas, 640 F.3d 168, 174 (6th Cir. 2011)).

It is certainly possible that another judge looking at the same evidence and testimony could come to a different conclusion regarding whether Rodgers had properly asked Cowan for his consent. But given our standard of review as outlined above, we must “consider[] the evidence ‘in the light most likely to support the district court’s decision.’ ” United States v. Smith, 263 F.3d 571, 581 (6th Cir. 2001) (citation omitted). And when we do so, there is no basis to reverse the district court’s denial of the motion to suppress.

Ill Because the only evidence before us is the testimony presented at the suppression hearing by Rodgers — testimony the district court found credible — and Rodgers stated that Cowan consented to his request to move to the wall without objection or indication of protest, we hold that the facts above indicate that Cowan’s consent to the pat-down was voluntary and AFFIRM the district court’s denial of the motion to suppress. .

Cowan alleges in his briefing that his situation was particularly intimidating, given that he was the only black man in the house with two white officers, and cites articles asserting a nationwide history of disproportionate police violence against black victims. Appellant's Br, 16. While he did make some reference to this argument in his testimony at trial, we are limited to the testimony raised before Co-wan's motion was ruled ,upon and .Cowan waived the argument by not raising it earlier. See Thurman v.

Yellow Freight Sys., Inc., 90 F.3d 1160, 1172 (6th Cir. 1996) ("Issues that are not squarely presented to the trial court are considered waived and may not be raised on appeal,”), Thus, although the issue now raised may well be a serious one, it was unpreserved.