IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-10647
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAYMOND HARRY NORRIS, also
known as Raymond Norris,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Texas, Lubbock
(5:94-CR-32-9)
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April 30, 1998
Before WISDOM, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
After a careful study of the briefs and consideration of the
oral arguments presented to the court, we affirm. Even if Mr.
Norris was stopped without reasonable suspicion, the alleged Fourth
Amendment violation does not mandate suppression of either the
seized cocaine or the confession. With respect to the cocaine, it
is well established that “voluntary consent can validate a search
*
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this opinion should not be published and is not precedent except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.
even when the consent is preceded by a Fourth Amendment violation.”
United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir.), cert.
denied, 508 U.S. 944 (1993). Similarly, a confession following a
Fourth Amendment violation may be admissible if given voluntarily
and in the absence of other, aggravating, factors. See, e.g.,
Rawlings v. Kentucky, 448 U.S. 98, 107-110 (1980).
With respect to both Norris’s consent to search and confession
of guilt, the government is required to prove the voluntariness of
the consent by a preponderance of the evidence. See United States
v. Hurtado, 905 F.2d 74, 76 (5th Cir. 1990) (en banc). The
district court’s finding of voluntariness must be sustained unless
clearly erroneous. See Kelley, 981 F.2d at 1470 (consent to
search); United States v. Doucette, 979 F.2d 1042, 1045 (5th Cir.
1992) (confession). If, as here, the district court’s finding of
voluntariness is based on oral testimony at a suppression hearing,
“‘the clearly erroneous standard is particularly strong since the
judge had the opportunity to observe the demeanor of the
witnesses.’” Kelley, 981 F.2d at 1470 (citing United States v.
Sutton, 850 F.2d 1083, 1086 (5th Cir. 1988)).
The voluntariness of Norris’s consent to the search and the
absence of evidence suggesting that the police engaged in coercive
tactics are sufficient to overcome the assumed Fourth Amendment
violation. See Kelley, 981 F.2d at 1471-72; United States v.
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Sheppard, 901 F.2d 1230, 1234-36 (5th Cir. 1990). Although Norris
did not receive Miranda-like warnings prior to the search, such
warnings are unnecessary to establish the voluntariness of consent.
See Sheppard, 901 F.2d at 1234-36 (holding that defendant’s was
voluntary even though he was not informed of his right to refuse
consent); United States v. Gonzalez-Basulto, 898 F.2d 1011, 1012
(5th cir. 1990) (same). In any event, here, the officers testified
that they asked Norris three separate times whether it was still
permissible to continue their search--the functional equivalent of
informing Norris of his right to refuse consent. Each time, Norris
approved. He has offered no evidence contradicting the officers’
testimony in this respect or otherwise suggesting that his consent
was involuntary.
Nor does it matter that Norris may have consented to the
search because he believed discovery of the cocaine was inevitable
and discovery under such circumstances would be more incriminating.
“[T]he question is not whether [the defendant] acted in her
ultimate self-interest, but whether she acted voluntarily.” United
States v. Mendenhall, 446 U.S. 544, 559 (1980). As we explained in
United States v. Gonzalez, 842 F.2d 748 (5th Cir. 1988), “consent
by suspects with knowledge that incriminating evidence will be
discovered during a search would never be truly voluntary if self-
interest were the primary focus of the voluntariness inquiry.” Id.
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at 755 n.3. Again, Norris has not demonstrated that his consent to
search was in any way involuntary, and therefore, the district
court’s refusal to suppress the seized cocaine was not clear error.
As for the confession, this case is similar to Rawlings v.
Kentucky, supra. In upholding the admissibility of a confession
obtained following a Fourth Amendment violation, the Supreme Court
focused on five factors: (1) the fact that the defendant received
Miranda warnings immediately prior to giving his confession, (2)
the absence of coercive tactics by the police, (3) the spontaneity
of the defendant’s confession, (4) the alleged Fourth Amendment
violation presented a close issue, and (5) the defendant never
adduced evidence that his confession was involuntary. See 448 U.S.
at 107-110. At least four of these factors is present in this
case. Norris received oral and explained written Miranda warnings
(which he signed) immediately prior to giving his confession.
Norris has adduced no evidence that the police engaged in coercive
tactics or that his confession was involuntary. Finally, whether
stopping Norris was supported by reasonable suspicion in this case
presents a close issue. For these reasons, the district court did
not clearly err in refusing to suppress Norris’s confession.
For the foregoing reasons, the judgment of the district court
is
A F F I R M E D.
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