Appeal from the United States District Court for the Western District of Wisconsin. No. 95 CR 22 Barbara B. Crabb, Judge.
Before CUMMINGS, BAUER and KANNE, Circuit Judges.
Following his flight from trial and sentencing on Illinois drug and gun charges, a federal arrest warrant was issued against defendant Vance Patterson in 1994. In January 1995 the Federal Bureau of Investigation located Patterson at the Trails End Motel in Madison, Wisconsin, where he was residing under the name Chauncey Mason. Surveillance of the motel by FBI agents and other law enforcement officers had commenced on January 22, 1995.
At 1:30 p.m. the next day, the agents observed defendant in the motel parking lot walking from his Dodge Omni vehicle toward his motel room. The agents identified themselves to Patterson and took him into custody after telling him that he was being arrested on the unlawful flight warrant. The agents then brought defendant to a motel surveillance room which they had used as a base.
Within the next 30 minutes, Madison FBI agent Richard Schuhler requested defendant's permission to search his motel room and car. Madison FBI agent William Steckel and agent Szatkowski of the Wisconsin Department of Justice, Division of Narcotics Enforcement (DNE), were also in the motel surveillance room with Patterson.
At this time, defendant was seated on one of the beds in the motel room while handcuffed behind his back. Schuhler advised defendant that he was named in the warrant and that the agents wanted to search his room and car. Two agents testified that Patterson responded in an affirmative but equivocal manner, something to the effect "I might as well," then said "yes" and nodded his head affirmatively when Schuhler asked for a more definitive response. Schuhler filled in the consent form and he, Steckel and Szatkowski signed as witnesses to defendant's oral consent. In accordance with the usual custom, he was not asked to sign the consent form because he was handcuffed.
Thereafter the agents searched Patterson's room and automobile and found a handgun and three pounds of marijuana in the trunk of the car and also found $33,000 in cash as well as drug paraphernalia in his motel room. After locating such evidence, special agent Greg Phillips of the DNE had contact with Patterson in the motel room. Phillips testified that when he asked Patterson if he would consent to a search by Phillips, Patterson indicated that he had already given consent and told Phillips to proceed.
After defendant was transported to jail he orally agreed that FBI agents could search his storage lockers. Subsequently he pled guilty to possession of marijuana with intent to distribute (Count I) and unlawful possession of a firearm by a fugitive (Count III). Count II charging the use or carrying of a firearm under 18 U.S.C. sec. 924(c)(1) *fn* was dismissed in light of the Supreme Court's decision in Bailey v. United States, 116 S. Ct. 501.
Defendant consented to search of motel room and vehicle
Defendant testified at the suppression hearing in the district court that he never gave consent to any of the agents at any time to search his car or motel room. Therefore, defendant submits that the search of his automobile and motel room violated the Fourth Amendment.
Defendant attacks the credibility of the testimony of the agents present in the motel room by pointing to the following "inconsistencies" in or "problems" with their testimony:
(a) The two FBI agents testified that Patterson gave an equivocal response to the first request to consent, while DNE agent Szatkowski testified ...