United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1959
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Pamela Golinveaux, *
*
Appellant. *
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Submitted: April 14, 2010
Filed: July 28, 2010
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Before RILEY, Chief Judge, COLLOTON and BENTON, Circuit Judges.
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RILEY, Chief Judge.
Pamela Golinveaux pled guilty to being a felon in possession of seven rounds
of .22 caliber ammunition while having been previously convicted of three or more
violent felony offenses, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1),
conditioned upon this court’s review of the district court’s1 denial of her motion to
suppress. Golinveaux argues the ammunition should have been suppressed because
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa, adopting the report and recommendations of the
Honorable Jon S. Scoles, United States Magistrate Judge for the Northern District of
Iowa.
she did not voluntarily consent to the search of her vehicle. The district court found
the search was voluntary, and we affirm.
I. BACKGROUND
On March 12, 2004, a loss prevention officer at the Cedar Falls, Iowa, Wal-Mart
observed Golinveaux take three boxes of Sudafed cold medicine, which contains
pseudoephedrine, a precursor for the manufacture of methamphetamine, from a store
shelf and leave without paying. The loss prevention officer brought Golinveaux and
her companion, Seth Caldwell, to the store’s loss prevention office, a 12-foot by 20-
foot unmarked windowless room, where they waited for the police. Two Cedar Falls
police officers eventually arrived and spoke with Golinveaux. One officer asked
Golinveaux for consent to search her car. Golinveaux refused and requested to speak
to a lawyer, stating she “wanted that lawyer thing.”
The officer then called his commanding officer, Captain Craig Berte, who came
to the scene and was advised of the circumstances, including Golinveaux’s request for
counsel and refusal to consent to a vehicle search. After Captain Berte entered the loss
prevention office, the office contained six to seven people.2 Golinveaux maintains she
felt physically intimidated in the room because she was the only woman present, and
although she was unrestrained and seated at a table before the officers, the officers
likely were standing. Captain Berte told Golinveaux he knew she had asked for an
attorney and he would not ask any questions about the theft. Captain Berte then gave
Golinveaux a “dangerous chemical speech,” explaining he was concerned about the
danger to “hundreds and hundreds” of people if Golinveaux’s car contained other
2
Golinveaux, Caldwell, Wal-Mart’s loss prevention officer, Captain Berte and
two other officers, and possibly the Wal-Mart store manager were in the office.
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precursors for the manufacture of methamphetamine.3 Golinveaux repeatedly said
there was nothing illegal in her car.
About thirty-eight minutes after the first officers arrived, and twenty-three
minutes after Captain Berte was dispatched,4 Golinveaux, on the condition she could
be present during its execution, consented to the search of her car for chemicals.
Golinveaux apparently led the officers to her vehicle and unlocked the car using a
remote control. The search revealed a black tin containing methamphetamine residue
in the center console, a gold pipe containing marijuana residue in a cup holder, a
loaded Harrington & Richardson .22 caliber rimfire seven shot revolver under the
driver’s seat, more drug paraphernalia behind the front seat, and a bloody syringe in
the trunk. After the search, Golinveaux was arrested and, for the first time, given a
warning pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Golinveaux was
eventually transported to jail and booked. None of the officers involved in
Golinveaux’s arrest or booking noticed any signs that she was impaired by alcohol or
drugs.
On August 26, 2008, a grand jury indicted Golinveaux for being a felon in
possession of seven rounds of .22 caliber ammunition while having been previously
convicted of three or more violent felony offenses,5 in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e)(1). Golinveaux moved to suppress the evidence seized during
3
Captain Berte denies the “dangerous chemical speech” was an impassioned
speech designed to be a plea to Golinveaux’s emotions.
4
The record does not indicate when Captain Berte arrived at the loss prevention
room. However, one of the other officers arrived approximately ten minutes after
dispatch.
5
Golinveaux’s prior felony convictions included breaking and entering, second
degree burglary, burglary, robbery and aggravated battery (including stabbing a police
officer), and second degree robbery.
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the search of her vehicle, arguing her Fifth and Fourteenth Amendment rights to
counsel were violated when Captain Berte continued to question her after she requested
a lawyer and Golinveaux’s consent to search her vehicle was not given voluntarily.
Golinveaux then entered a conditional guilty plea, pursuant to Fed. R. Crim. P.
11(a)(2), reserving her right to appeal all issues raised by the motion to suppress and
to withdraw her guilty plea if she prevailed. The district court accepted Golinveaux’s
guilty plea and denied her motion to suppress, concluding (1) Cody v. Solem, 755 F.2d
1323, 1330 (8th Cir. 1985) (“[A] consent to search is not an incriminating statement.”),
foreclosed her right to counsel argument; (2) Golinveaux’s consent to the search was
voluntary; and (3) in any event the evidence was admissible because it would
inevitably have been discovered. Golinveaux appeals the district court’s judgment as
to the voluntariness of her consent and the inevitable discovery doctrine. Because we
conclude Golinveaux voluntarily consented to the search, we find it unnecessary to
reach the inevitable discovery issue.
II. DISCUSSION
A. Standard of Review
“[T]he question [of] whether a consent to a search was in fact ‘voluntary’ or was
the product of duress or coercion, expressed or implied, is a question of fact to be
determined from the totality of all the circumstances.” Schneckloth v. Bustamonte,
412 U.S. 218, 227 (1973). “We review the factual findings of the district court as to
what the parties said or did for clear error; we review the district court’s finding that
the Fourth Amendment has not been violated de novo.” United States v. Serrano-
Lopez, 366 F.3d 628, 639 (8th Cir. 2004) (quoting United States v. Bloomfield, 40
F.3d 910, 918 (8th Cir. 1994) (en banc)) (internal marks omitted).
B. Voluntariness of Consent
Although a warrantless search presumptively violates the Fourth Amendment,
voluntary consent to search is a well-recognized exception to the warrant requirement.
See United States v. Parker, 587 F.3d 871, 878 (8th Cir. 2009). “The government bears
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the burden to prove by a preponderance of the evidence that consent to search was
freely given, but awareness of the right to refuse is not necessary for consent to be
voluntary.” United States v. Arciniega, 569 F.3d 394, 398 (8th Cir. 2009) (quoting
United States v. Smith, 260 F.3d 922, 924 (8th Cir. 2001)).
Factors relevant to the analysis include (1) the individual’s age and
mental ability; (2) whether the individual was intoxicated or under the
influence of drugs; (3) whether the individual was informed of [her]
Miranda rights; and (4) whether the individual was aware, through prior
experience, of the protections that the legal system provides for suspected
criminals. It is also important to consider the environment in which an
individual’s consent is obtained, including (1) the length of the detention;
(2) whether the police used threats, physical intimidation, or punishment
to extract consent; (3) whether the police made promises or
misrepresentations; (4) whether the individual was in custody or under
arrest when consent was given; (5) whether the consent was given in
public or in a secluded location; and (6) whether the individual stood by
silently or objected to the search.
Arciniega, 569 F.3d at 398 (internal citations omitted).
The magistrate judge learned Golinveaux’s age (50) and educational level
(thirteen years), and noted the absence of any evidence Golinveaux suffered from a
mental disability. After mentioning methamphetamine residue was found inside the
car, the court pointed to the officers’ testimony that Golinveaux showed no signs of
being under the influence and rejected Golinveaux’s argument that she was likely
under the influence at the time she gave consent to search. The court found
Golinveaux received no Miranda warnings until after the search, but also found
Golinveaux had a general understanding of her rights, as evidenced by her request for
counsel and lengthy criminal history. Golinveaux allows she “had the personal
wherewithal and background to make a voluntary decision about consent to search”
and we find no clear error in the district court’s findings regarding Golinveaux’s
personal characteristics.
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Although Golinveaux concededly possessed the personal characteristics
necessary to make a voluntary choice, the environment in which she gave consent may
have been intimidating. Golinveaux states she was in Wal-Mart’s loss prevention
office for about an hour. She was not physically restrained. The officers made no
promises or misrepresentations to Golinveaux. The magistrate judge pointed out that
although there was no evidence Golinveaux was directly threatened, physically
intimidated, or punished, she may have been physically intimidated because the
officers and Wal-Mart employee or employees were all male and standing during the
interview, and Golinveaux was slight, seated, and female. While adopting the
magistrate judge’s finding that Golinveaux may have been physically intimidated, the
district court added that “the environment surrounding [Golinveaux] at the time she
gave her consent was not unduly coercive.” Our review of the record reveals no clear
error in these findings.
Under the circumstances of this case, we conclude Golinveaux’s consent to the
search of her car was voluntary. At most, Golinveaux was in police custody for thirty-
eight minutes before she gave consent to search, and was subject to the possible
physical intimidation described above and Captain Berte’s “dangerous chemical
speech” for less than twenty-three minutes. We do not believe, in such a short time,
an experienced criminal such as Golinveaux—particularly given her history of
assaulting law enforcement officers—was so overcome by police authority or by
Captain Berte’s persuasive powers as to make her consent involuntary. Golinveaux’s
motion to suppress was properly denied.
III. CONCLUSION
We affirm the district court’s judgment.
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