*1 1271 not address Although we need may issue, America, Appellee, above our discussion STATES of
abstention UNITED of The doctrine effectively resolved it. have that a premised on the idea abstention HEATH, Leroy Appellant. state court may defer to a court federal controversy: there with a similar confronted No. 94-3100. unless the state for abstention is no need Appeals, jurisdiction States Court of of have concurrent federal courts Dailey Eighth v. National Circuit. or ease. See an issue (3d Cir.), 172, 178 Hockey League, 987 F.2d 12, Dec. 1994. Submitted — U.S.-, 114 126 S.Ct. cert. Lewis, (1993); July F.2d Levy v. Decided Cir.1980). reason, (2d For this pre against abstention argument IAEA’s suits here federal and state
sumes that the action, separate causes of on two
are based reject.
presumption that we closing that because
We note jurisdiction exists state
concurrent question court to decide
federal status, court
IAEA’s EEISA juris lack of not have dismissed for
should 12(b)(1). While
diction under Fed.R.Civ.P. ostensibly enumerat
pre-answer motions are 12(b), district courts have
ed in Fed.R.Civ.P. recognize pre additional
the discretion motions, stay including motions to
answer jurisdiction par when
cases within federal pending. Brillhart v. action is
allel state America, 316 U.S.
Excess Ins. Co. of
494-96, 1173, 1175-76, L.Ed. 1620
(1942); & generally Millek, see 5A WRIGHT (1990 Supp.1995).
§ 438-41 & 1360 at
Here, may finally court action while the state case, possible that fur it is also
resolve may prove neces proceedings federal
ther possibility of return to
sary. long as a So remains, stay rather than a court
federal preferred mode of absten is the dismissal — at-, Wilton,
tion. See Service, 2; Inc. v. n. Bob’s Home
at 2143 (8th 625, 628 County, 755 F.2d Cir.
Warren
1985); Wright, Arthur R. 17A A. Charles Cooper, § 4247 at 136- Edward H.
Miller & understood, Angoffs Properly stay, for such a not dismissal
motion was jurisdiction. Accordingly, lack of
based on for the dismissal and remand
we vacate stay.
of a *2 Villa, Defender,
Virginia Federal Public MN, Minneapolis, argued, appellant. for Lackner, Atty., James Asst. U.S. Minne- MN, apolis, argued, appellee. for McMILLIAN, Judge, Before Circuit GIBSON, Judge, R. JOHN Senior Circuit SHAW,* Judge. District SHAW, Judge. District Leroy guilty conditional entered plea aiding abetting to one count of possession with intent to distribute cocaine 841(a)(1) base, §§ in violation of U.S.C. 841(b)(1)(A) 2,§ and 18 U.S.C. and was by sentenced the district court1 to a 120- imprisonment by month term of followed year supervised five term of release. Heath appeals now denial of his suppress motion to evidence and statements. We affirm.
I. BACKGROUND possession Heath was arrested for Septem- intent to distribute crack cocaine on ber 1993. He was indicted a federal jury grand September 1993. Heath suppress filed a motion to evidence and state- into, of, arising ments from and search by Hennepin County Sheriff’s Deputies. hearings Three were held on the suppress.2 Hennepin County motion to Deputies Christopher Sheriffs Omodt and Cooper testified at all Chester three hear- ings, only while Heath testified at the last hearing. Deputies’ Testimony. On
3, 1993, Omodt received information from a informant confidential that an African-Amer- staying ican male in Room 114 at the Econo Minnesota, Lodge Minneapolis, Motel in Shaw, hearings *The Honorable Charles A. 2. The were held United before Honorable Judge Noel, District for Eastern of Mis- Magistrate Judge District Franklin L. souri, sitting by designation. Minnesota, for District of on October Rosenbaum, February 1. The Honorable James M. November Judge States District for the District of Minneso- ta. trafficking. contact- could look inside shoe box. Heath said drug in involved wearing investigation. the new shoes he was came Cooper to assist ed box, and consented to the search. Omodt motel, Cooper arrived at the Omódt When opened the shoe box and found a substance speaking Erickson were Deputy Sheriff *3 cocaine, to crack the officers believed be said the man employee, who with a bands, materials, scale, packaging rubber a a presented an Indiana renting 114 had Room blade, quantity and a of United razor name “Otis McDuf- license with the driver’s currency. name. fey” registered under the same and point, Wynn cash At Heath and were ar- paid for the room with each this The man day by day. depu- An- stay rested and handcuffed. Three other day and extended his standing hallway in paying cash for the ties who had been person had been other search, pat-down from the entered the room. After a telephone calls made numerous Wynn Heath into the Omodt took and bath- room. room and informed each of his Miranda attempt to á “knock deputies decided The rights. Each stated he understood his was no answer when the and talk.”3 There willing and was to talk to Omodt. door, they so deputies knocked on the room deputies promises met no threats or to to their cars. The Omodt made returned Wynn. Cooper or was outside and decided to conduct a surveil- either Heath with others open Although partially observed a bathroom door. lance of the motel. When Omodt parking exchange lot near Room 114 he did not hear the entire between pull ear Heath, Cooper heard the Mi- African-American males exit Omodt and two box, randa ear, Cooper warnings subsequent carrying a shoe he and and Heath’s one try another “knock and talk” at waiver. Omodt asked Heath for consent to decided to gave oral Room 114. search the motel room. Heath signed do so. Heath also a Hen- consent to deputies arrived at the room When the County Department nepin Sheriffs Consent knocked, opened a crack. the door was signed the to Form.5 After Heath Search him- Heath answered the door and identified form, deputies Cooper and the other McDuffey.” deputies as The iden- self “Otis the room. searched as enforcement officers. tified themselves law that he was aware of room, Omodt told Heath searching Cooper found While drug activity in Room 114 and asked possible bags, pair of bags. In one of the two deputies could come into the room. if the quantity was contained a shorts found which Omodt, According opened Heath the door to currency. During a second of United States said, in.” way all “Come on search, pat-down more crack cocaine was Wynn’s pocket. shirt discovered room, Wynn present in the Mark was also told sitting in a chair near a bed. Omodt Testimony. Heath’s version of Heath’s Wynn they Heath and that did not have at is much different. Heath testified events any speak with the or consent to 16, 1994, hearing February as follows. searches, they and that were free to tell the Wynn the mo- Heath and returned to When Wynn deputies to time. nodded leave Heath did not tel on they affirmatively; replied that did Heath carry depu- with him. a shoe box When anything speak would not have to hide and door, on his room Heath stuck ties knocked deputies. again, told with the Once Omodt inquire out who was at the his head Wynn Cooper and Heath that he and were if was “Otis.” and Omodt asked Heath deputy Cooper sheriffs. reiterated the same replied Omodt asked that he was “Otis.” warnings given had to Heath and Omodt occupant and Heath he was the Wynn earlier. affirmatively. Then, responded law of- attempt identified themselves as enforcement Cooper Wynn to slide a noticed if he ficers. shoe box under a bed. Omodt asked McDuffey” on the Cooper 5.Heath the name "Otis testified that a "knock and talk” is form, between the and the Cooper casual conversation but testified he witnessed target investigation, of force. of an with no show sign the form. Wynn party
4. Mark is not a to this they protect know if able to in the shoe did not be asked Heath what was Wynn. Heath and box, box was replied that Heath that he had rea- empty. Omodt told Testimony. Depu- Deputies’ Rebuttal selling narcotics son to believe someone Cooper testified rebuttal ties Omodt asked how Omodt from the and Heath testimony. Cooper Omodt and to Heath’s Omodt re- had made such determination. consistently testimo- testified made plied phone that a lot of calls had been testimony ny, Heath’s that and contradicted “probable gain entry and he had cause” from coercive tactics to used being sold from the motel room-and search it and the shoe box to believe large consent. The testi- if a number of without Heath’s room. Heath asked (i) they phrase that did not use the fied “probable cause” and Omodt calls constituted *4 during “probable cause” their initial encoun- Cooper told Heath the answered “Yes.” (ii) Heath; gave Heath them oral ter with wives, go to to their it deputies wanted home consent to enter the room and and written weekend, holiday and were was near the (iii) box; it and the shoe Heath was search Cooper they needed to cheek tired. stated (iv) twice; advised of his least things report to their boss that ev- out and (v) threatened; they did Heath was not erything right. point, At this Om- was all protection not threaten to decline of Heath turned harsh and he told Heath odt’s voice Wynn party. deputies third Both from a you going get in I to a don’t let me am “[i]f you expressly “[i]f denied that Omodt said your f. warrant and tear room search get in I will a f. search don’t let me go apart.” Heath then let of the door and your apart.” and tear warrant way pulled back his Because of the head. Findings. district District Court’s acting, Heath Omodt Omodt was feared adopted Magistrate Judge’s finding court grab pushed open Then would him. Omodt testimony discrediting crediting Heath’s Cooper and he and entered the deputies. upon that of the Based thosé cred- room. ibility findings, the district court concluded room, did not tell Once voluntarily dep- that Heath consented to the right entry, to Heath he had a to refuse their entry into motel room and to the uties’ them, talk or to refuse consent to refuse to to Accordingly, of it and the shoe box. search presented a Heath with a search. Omodt the district court denied Heath’s motion to sign. piece paper that he demanded Heath suppress. paper told Heath that the Omodt said The district court discredited Heath’s testi- room, Heath could search his but (i) mony because he lied to the paper. to Heath was not allowed read (ii) identity; about his it was incredible that not know he could tell the officers to did challenge “Heath would Omodt’s claim that Jamaica, Heath testified that leave. probable he had cause to believe were grew up, good.idea to where he it was not being sold there to the sheriffs’ police resist officers and it was best to com- too timid to into the but then become ply their demands. Heath questions signing a ask or resist document using name McDuf- consent form “Otis form”; knew to be a consent to search fey.” (iii) while Heath testified that he did not again asked what was in the shoe Omodt carry him car on the shoe box with from the nothing, opened box. Heath said and Omodt 3,1993, September and asserted the shoe box Wynn placed the box. Then Heath and had been in the motel room since Cooper depu- under called for other arrest. 1, 1993, he also testified that one of the first report ties to the room. A came across enter questions opened Omodt asked when Heath deputy’s radio that a African-American only enough his out the door to stick head just pulled up in a male had black Cadillac. was about the shoe box. this was Omodt asked Heath knew who II. DISCUSSION judge report and threatened to make a to the Cooper cooperate. if Heath did not then argues erred in Heath the district court protect finding that the them- to the stated that he consented deputies’ room and to if the man came into the but he entrance selves —nied, -, 1011, 122 the shoe U.S. of it and subsequent search (1993)). contends that box. determination, finding on its credibility which A court’s determination as district based, erroneous is is to search of consent virtually credibility of a witness is . by supported the record. not States v. unreviewable (8th Cir.1994) Martin, 28 F.3d 745-46 erroneous, ar- The determination (Martin) Candie, (citing testimony was gues, because (8th Cir.1992)). The assess 974 F.2d Heath contends inconsistent. incredible and credibility province is the ment of a witness’s willingly that he would be incredible it would Rosa, court. See United States v. of the trial the shoe box police search agree to let omitted), (2d Cir.1993) (citations 11 F.3d In was inside. knew crack cocaine when he — -, rt. ce cites his argument, Heath support of his A district 128 L.Ed.2d tactics used testimony regarding the coercive to credit a witness’s testimo court’s decision gain entry to the room. We ny of another can almost never be over that note, however, not cite that Heath does unless there is extrinsic evidence clear error testimony chal- other than evidence story or the that contradicts the witness’s deputies’ version of events. lenge the story internally implausi inconsistent or is so has an eleventh- notes that he Heath also that a fact-finder ble on its face reasonable *5 national, foreign and is a grade education City it. Anderson v. would not credit See of deputies’ 564, 575-76, of the that the entire nature argues City, 470 105 Bessemer U.S. (1985). inherently 1504, 1512-13, co- confrontation him had an 84 518 S.Ct. ercive effect. have considered the district We argues determina- further that the and, credibility apply determination supported by the record because is not tion reviewing standard for ing the deferential unclear as to the record are determination, the facts on that er conclude clear such a why the he knew committed. The district court whether ror was not vol- the whether he different versions of knocking on the room was faced with two deputies’ to credit the ver entrance into the events and chose untarily consented to their no extrinsic evidence sion. There was the search he consented to whether story than other contradict the followed, was whether the search that Further, testimony. while the Heath’s own after he the prior to or conducted inconsistent might have made some to search form. consent statements, not so inter their stories were only that government contends The implausible or that a rea nally inconsistent credibility de- this court is the issue before credit their tes fact-finder would not sonable court, district which of the termination Martin, id.; at 745-46. timony. 28 F.3d See virtually unreviewable asserts is government alternative, govern- In on to Enter Search B. Consent of the motel argues that the search ment upon an individual’s A search based incident to arrest. was a valid search room by law enforce may be undertaken consent probable or agents a warrant ment without Credibility Determination A. during cause, evidence discovered court’s deni- affirm the district We must at may and admitted be seized the search suppress “unless it is motion to al of the Bustamonte, 412 v. U.S. trial. Schneckloth supported by substantial evidence not 2041, 2043-44, 218, 219, 36 L.Ed.2d 93 S.Ct. record; view of it reflects an erroneous (1973) (Schneckloth). justify a con To 854 law; upon review of the applicable or search, prosecution has the bur sensual record, the defi- are left with [we] entire voluntarily individual proving that an den of that a mistake has firm conviction nite and States v. search. United consented to the been made.” Cir.1994) (Se (8th 444, Severe, 446 29 F.3d (8th Larson, Lowe, 604, vere) 978 607 v. (citing v. 50 F.3d United States Cir.1992)). (8th 1021, prose Cir.1995) The Layne, 1023 (quoting F.2d was that the individual (8th Cir.1992), prove not 1417, de- cution need cert. F.2d 1420 973 1276
fully
of
or her
suppress
aware
under the
conclude Heath’s motion to
was
properly
Fourth Amendment in order to establish a
denied. We need not reach the
Schneckloth,
voluntary
government’s
412
argument
consent.
U.S. at
alternative
that the
235,
totality
29 F.3d at
United States v.
(8th Cir.1993)
412,
(citing
990 F.2d
McMILLIAN,
Judge, concurring
Circuit
Schneckloth,
227,
search is reviewed under the errone
ous standard. Id.
Examining totality of the circum
stances, we conclude the district court’s de
termination that Heath
consented
entry
into the room
KRISS, Appellee/Cross-
and their
Rhonda M.
search of the room and
Appellant,
the shoe box was not
Martin,
clearly erroneous. See
III. CONCLUSION reasons, foregoing
For the we are not left
with the definite and firm conviction that a
mistake was made the district court in its
finding Therefore, of consent to search. we