IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 11, 2008
No. 06-40957 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RAYMOND MATA
Defendant-Appellant
Appeal from the United States District Court
For the Southern District of Texas
Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
After police uncovered approximately 1,283 kilograms of marijuana and
several firearms, Raymond Mata was indicted on four counts: (1) conspiracy to
possess with intent to distribute more than 1,000 kilograms of marijuana in
violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A); (2) possession with
intent to distribute more than 1,000 kilograms of marijuana, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A); (3) conspiracy to maintain a drug involved
premises in violation of 21 U.S.C. §§ 856(a)(2) and (b) and 846; and (4) knowingly
using or possessing a firearm in relation to and in furtherance of a drug
trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A) and (B)(ii). The district
court severed and dismissed counts 2 and 3, without prejudice to re-indictment
No. 06-40957
in the District of Illinois. Mata’s pre-trial motion to suppress evidence of the
marijuana was denied. After a jury trial, Mata was convicted on Count 1 and
acquitted on Count 4. Mata appeals the denial of his pre-trial motion. We
affirm the trial court’s denial.
I
Immigration and Customs Enforcement (“ICE”) agents uncovered a
tractor-trailer containing marijuana after a Pharr, Texas business notified police
of suspicious behavior. The drugs were hidden within twenty wooden pallets
containing Mexican pottery.
The ICE agents learned from the bill of lading that the pottery was
destined for Chicago and decided they would attempt to make a controlled
delivery to “Jim,” the contact person named on the bill of lading. Undercover
agents from the Pharr police department drove the truck to Illinois, and Chicago
and Illinois police installed transmitting beacons within four of the pallets and
parked the truck at a state police facility overnight.
The following morning, the undercover officers drove the truck to the
address listed on the bill of lading, which was a Wal-Mart. The undercover
officers called “Jim”at approximately 10:00 a.m. to ask for further instructions.
“Jim” told the officers to wait. Soon after, the police surveillance team observed
two vehicles approach the truck. The occupants exited and instructed the
undercover officers to follow them to the delivery site, Ray’s Auto and Truck
Repair, owned by Mata and his wife. The undercover officers arrived at Mata’s
business at approximately 12:25 p.m. Undisputed testimony described Mata’s
business as a small lot enclosed by a cyclone fence with barbed wire and a gate,
secured by a lock and chain. The lot contained numerous parked automobiles
and a brick building with a door and garage door large enough to accomodate
trucks.
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No. 06-40957
The truck was admitted to the premises, and Mata and others assisted the
undercover officers in unloading the truck inside Mata’s garage. Mata signed
the bill of lading, and the undercover officers left about 30 minutes after
arriving. By this time, approximately twenty-five ICE agents and local police
surrounded and surveilled Mata’s garage. For approximately two hours, officers
watched as numerous vehicles and unknown individuals came and went. Mata
left his garage at approximately 2:00 p.m., after the controlled delivery was
completed.
Between 2:30 and 2:45 p.m., police officers observed a white box truck
preparing to leave Mata’s garage. Officers testified that they believed the truck,
which had been loaded in the garage, contained some or all of the marijuana. As
the truck left Mata’s business, the police, fearing the large amount of marijuana
could be lost, gave the “take down” signal, quickly blocked traffic, turned on their
emergency lights, identified themselves as police, and ordered the individuals
standing outside the gate to stop. As the police approached, at least two men
fled down the street and two more fled to the rear of the lot. The ICE agents and
police were able to detain these fleeing individuals and arrested 7-10 men in
total.
Immediately after the raid, special agent Glen Comesanas ordered a
“safety personnel sweep” of the garage. At the suppression hearing, Comesanas
testified that he was concerned that other suspects, who might be a danger to
officers and passers-by, remained inside, but he admitted he had “no idea” one
way or the other. At trial, Comesanas testified that roughly five to six officers
entered the building to sweep likely hiding spaces. During the sweep, the
officers did not find any individuals, but they saw substantial amounts of
marijuana and firearms in plain view. After the sweep, the officers left the
building, secured the perimeter, and awaited a formal search warrant that
agents had attempted to secure that afternoon. This warrant never arrived.
3
No. 06-40957
At approximately 5:00 p.m., Mata and his wife arrived at the garage.
Mata identified himself as the owner of the garage, and Agent Comesanas
testified that Mata gave verbal consent for agents to search the business. Mata,
however, refused to sign a “Consent to Search” form, and, according to
Comesanas, said: “Maybe I should talk to my lawyer.” Agent Comesanas told
Mata that he was free to do so. Mata picked up his cell phone, scrolled through
several phone numbers, but declined to make a call.
During this conversation, Mata’ wife Julia entered the garage. She signed
the consent form, at which point officers began searching Mata’s garage.
According to Agent Comesanas, Mata never withdrew his verbal consent nor did
he object to his wife signing the consent form. The officers found marijuana
throughout the garage and inside the white box truck. Officers attempted to
open a safe but could not. Mata provided the combination and assisted officers
in opening the safe. Inside the safe, officers discovered additional firearms.
After the search the officers did not arrest Mata and at no time during the
search was Mata under arrest.
On October 26, 2004, a grand jury returned a superseding indictment
charging Mata and others with four counts. The district judge dismissed two of
the counts for lack of jurisdiction but without prejudice to re-indictment in
Illinois. Mata filed a pre-trial motion to suppress evidence, arguing that the
search was warrantless, relied on legally invalid consent, or both. After a
hearing, the district court denied the motion and found that (1) the police
conducted a valid and legitimate protective sweep and (2) the Matas provided
valid legal consent to the search.
After a jury trial, Mata was convicted of conspiracy to possess with intent
to distribute more than 1,000 kilograms of marijuana in violation of 21 U.S.C.
§§ 846, 841(a)(1) and 841(b)(1)(A) but acquitted of knowingly using or possessing
a firearm in relation to and in furtherance of a drug trafficking crime in violation
4
No. 06-40957
of 18 U.S.C. §§ 924(c)(1)(A) and (B)(ii). He was sentenced to 156 months in
prison, five years supervised release, and fined. Mata timely appealed.
II
Mata contends that the district court erred in denying his motion to
suppress evidence discovered during the officers’ protective sweep and during
the search conducted after Mata returned to his business. First, Mata argues
that the Government’s reliance on exigent circumstances and consent are
pretextual efforts to save an illegal search conducted after they failed to obtain
a search warrant. Specifically, Mata argues the Fourth Amendment’s
“protective sweep” exception is inapplicable here because he alleges the officers
lacked any specific, articulable facts required under the exception. Additionally,
Mata argues his consent was invalid, irrelevant, the fruit of the illegal seizure,
and not free and voluntary. He also argues his wife’s consent is invalid because
the seizure of the marijuana occurred before she arrived. Finally, he contends
that the firearms were the only evidence derived from consent, not the
marijuana, and he was acquitted of the weapons charge.
The government contends that the officers’ “safety personnel sweep” met
a lawful exception to the Fourth Amendment. Thus, the officers lawfully seized
the marijuana and firearms in plain view during the sweep. The government
also contends that the firearms seized in the safe were seized pursuant to the
free and voluntary consent of Mata and his wife.
In an appeal of a denial of a motion to suppress evidence, this Court
reviews the District Court’s legal conclusions de novo and its findings of fact for
clear error.1 Whether consent to a warrantless search is voluntary is a finding
1
United States v. Keith, 375 F.3d 346, 348 (5th Cir. 2004).
5
No. 06-40957
of fact reviewed for clear error.2 The Court may affirm a district court’s ruling
on a motion to suppress on any basis established by the record.3
Warrantless searches are per se unreasonable under the Fourth
Amendment, subject to a few specific exceptions.4 The government advances two
such exceptions: first, that the initial search was valid because it was incident
to arrest and, second, that the Matas consented to the search of their property.
A
We first consider the initial sweep of Mata’s garage that discovered
marijuana and weapons in plain view immediately after the 7-10 individuals
were arrested outside the gate leading into the premises. There are three
variations of the post-arrest exception potentially applicable to the officers’
“safety personnel sweep.” First, incident to an arrest, law enforcement officers
may contemporaneously search areas within the arrestee’s immediate control to
prevent the destruction of evidence or procurement of a weapon.5 Second,
officers may search areas immediately adjoining the place of arrest, such as
closets and other spaces, from which a surprise attack could occur.6 Probable
cause or reasonable suspicion is not necessary for these first two variations.7
Third, officers may also perform cursory “protective sweeps” of larger areas if
they have articulable facts plus rational inferences that allow a reasonable
officer to suspect that an individual dangerous to the officers is within the area
2
United States v. Vega, 221 F.3d 789, 795 (5th Cir. 2000).
3
United States v. Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir. 1999).
4
Coolidge v. New Hampshire, 403 U.S. 443, 474-475 (1971).
5
United States v. Green, 324 F.3d 375, 378 (5th Cir. 2003) (citing Chimel v. California,
395 U.S. 752, 763 (1969)).
6
Maryland v. Buie, 494 U.S. 325, 334 (1990).
7
Id.
6
No. 06-40957
to be searched.8 The government contends that one or all of these variations
justified the officers’ search.
This court’s precedent demonstrates that the officers’ search of Mata’s
business does not meet the first variation, a search incident to an arrest to
prevent the destruction of evidence or procurement of a weapon. In United
States v. Green,9 officers arrested defendant Green ten feet from his vehicle and
then searched the glove compartment in his car, where they found a firearm.10
This court held that since Green was handcuffed and ten feet from his car, the
search was not justified by concerns that Green would reach the firearm either
to use it or destroy it as evidence.11
In this case, testimony at both the suppression hearing and at trial
established that the 7-10 individuals who were arrested were apprehended at
the gate surrounding the lot and entirely outside the building. At trial, Agent
Comesansas additionally testified that, in his recollection, both the garage door
and entrance door to the building were closed. While no testimony revealed the
distance from where the individuals were arrested to inside the building, like the
defendant in Green, it is unlikely that the 7-10 individuals would have accessed
the inside of Mata’s business to obtain a weapon or destroy evidence.
Likewise, the officer’s search does not meet the second exception, a search
of immediately adjoining areas to prevent surprise attacks.12 In United States
v. Charles,13 this Court upheld a precautionary search when officers quickly
8
Id.
9
324 F.3d 375 (5th Cir. 2003).
10
Id. at 378.
11
Id. at 379.
12
Maryland v. Buie, 494 U.S. 325, 334 (1990).
13
469 F.3d 402 (5th Cir. 2006).
7
No. 06-40957
entered a 10’ by 25’ storage unit in which they found the defendant. The officers
approached the storage unit, ordered the defendant outside, and arrested him
without a warrant. One officer quickly entered the unit, which contained a car,
to check beneath, behind, and inside the car to confirm no other person was
hiding. During this brief entrance, the officer noticed in plain view narcotics and
a firearm. Charles argued that once he was outside the unit nothing inside was
within his immediate control and that the officer lacked articulable facts
justifying the sweep. This court concluded that the officers were justified in
searching the unit because Buie held that police may as a precautionary matter
and without probable cause or reasonable suspicion look in closets and spaces
immediately adjoining the place of arrest from which an attack could be
launched.14
While the exact dimensions of Mata’s property were never discussed, his
facility is substantially larger than the areas the Supreme Court and this court
have described as immediately adjacent areas. Additionally, were this court to
allow precautionary searches of such large areas incident to arrest, without some
reasonable, articulable suspicion, this exception would quickly swallow the rule.
However, under the third variation, a protective sweep of a larger area
may be lawful if other circumstances are present. This court has identified
several requirements for a valid protective sweep. First, the police must have
entered legally and for a legitimate law enforcement purpose.15 Second, the
officers must have a reasonable, articulable suspicion that the area to be swept
contains a person posing a danger to those on the scene.16 Third, the protective
sweep must be limited to a cursory inspection of only those spaces where a
14
Id. at 405 (citing Buie, 494 U.S. 334 (1990)).
15
United States v. Gould, 364 F.3d 578, 587 (5th Cir. 2004).
16
Id.
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No. 06-40957
person may hide; it is not a full search of the premises.17 Finally, officers must
conclude the sweep once they have dispelled their reasonable suspicion of
danger, and they may not continue the sweep after they are no longer justified
in remaining on the premises.18 Mata contends several of these requirements
were not met.
As an initial matter, Mata suggests that the officers’ entrance was illegal
because the police unlawfully arrested the 7-10 individuals, citing Ybarra v.
Illinois.19 Regardless of the lawfulness of those individuals’ arrest, this court has
held that lawful arrest is not an indispensable element of a protective sweep.20
Even assuming, arguendo, that the 7-10 individuals were arrested unlawfully,
the officers need only meet the Buie standard requiring a reasonable belief based
on specific and articulable facts that the area to be swept contains dangerous
individuals.21 The government need not prove the sweep was incident to a lawful
arrest.22
Mata also contends that the officers’ entrance was unlawful because no
exigent circumstances existed allowing the officers to enter without a warrant.
The existence of exigent circumstances is a finding of fact reviewed for clear
error.23 This court has created a non-exhaustive five-factor list to determine
whether exigent circumstances exist: (1) the degree of urgency involved and the
17
Id.
18
Id.
19
444 U.S. 85 (1979) (holding that a search warrant giving authority to search a public
bar and the bartender did not extend to searches of bar patrons when the police lacked a
reasonable belief that the patrons were involved in criminal activity or were dangerous).
20
Gould, 364 F.3d at 584.
21
See id.
22
Id.
23
United States v. Gomez-Moreno, 479 F.3d 350, 354 (5th Cir. 2007).
9
No. 06-40957
amount of time necessary to obtain a warrant; (2) the reasonable belief that
contraband is about to be removed; (3) the possibility of danger to the police
officers guarding the site of contraband while a search warrant is sought; (4) the
information indicating that the possessors of the contraband are aware that the
police are on their trail; and (5) the ready destructibility of the contraband and
the knowledge that efforts to dispose of it and to escape are characteristics in
which those trafficking in contraband generally engage.24
Exigent circumstances do not include the likely consequences of the
government’s own actions or inactions.25 Mata argues that in this case the
government created the exigency when it issued its “take down” order to stop the
white box truck that attempted to depart from Mata’s place of business.
In United States v. Vega,26 this court concluded the police had improperly
justified a warrantless search with exigent circumstances of its own making. In
that case, an informant notified police officers that three men in a specific car
were likely carrying weapons and cash to purchase a large amount of narcotics.27
The police located and monitored the men at a house, and before acquiring a
search warrant or observing events creating probable cause, three officers
approached the house to request permission to search. After knocking and
identifying themselves as police, the defendant ran out the back door where he
was arrested. The arresting officer heard movement inside and entered through
the back door to protect his fellow officers. The government argued that when
the officer entered the house, the occupants might dispose of illegal substances
or endanger the officers. This court disagreed and stated that the moment to
24
Id. at 354-55.
25
Id. at 355 (citing United States v. Vega, 221 F.3d 789, 798-99 (5th Cir. 2000)).
26
221 F.3d 789 (5th Cir. 2000).
27
Id. at 793-94.
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No. 06-40957
determine whether exigent circumstances existed was before the defendant was
aware of the officers’ presence. The court examined those five factors and
determined that when the officers approached no urgency existed requiring
immediate resolution or confrontation. The court noted that no evidence existed
demonstrating that the defendant was attempting to remove evidence or
endanger the officers before he became aware of their presence through the
officers’ actions.
Similarly in United States v. Munoz-Guerra,28 this court again held that
officers had relied on exigencies of their own making. In that case, a tipster
informed police that the defendant’s condominium was used to store large
quantities of narcotics, money, and firearms. Police officers and DEA Agents
observed through a ground-floor window a marijuana cigarette and a bag of
white powder. The officers immediately knocked on the door. When Munoz-
Guerra responded, he claimed he needed a key to unlock the door. Concerned
that Munoz-Guerra might destroy evidence or obtain a weapon, the agents
entered the home without a warrant, conducted a security search, and
discovered narcotics and weapons. The district court upheld the search, citing
the officers’ observations through the window, but we reversed and held that
exigent circumstances must be examined at the point before the defendant was
aware of the officers’ presence. The officers’ confrontation of Munoz-Guerra
created the exigency, since a protective search was certain to happen after
Munoz-Guerra became aware of their presence. Thus the relevant inquiry was
whether exigent circumstances justified the agents’ approaching the door.29
Mata argues that the government created the exigency when its officers
gave the “take down” signal. But as Agent Comesanas testified, given the
28
788 F.2d 295 (5th Cir. 1986).
29
Id. at 298.
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No. 06-40957
circumstances, including the time the white box truck remained at Mata’s repair
shop, his experience led him to believe that the truck was a load vehicle, likely
used to transport the marijuana. Additionally, the district judge found that the
evidence indicated that the white truck was most likely a load vehicle and that
the police believed if they did not stop the truck, the marijuana, or part of it,
would be gone. Given this testimony, the exigency was the white box truck
leaving. That exigency occurred before the officers approached Mata’s business
and was the lawful justification for that approach.
Mata contends that the officers only stopped the truck at the gate to create
the exigency, and if they were truly concerned with only recovering the
marijuana, the officers could have detained the truck down the road. We have
rejected a very similar argument in another case.30
Additionally, Mata contends the exigency is merely a pretext for a
warrantless search because the officers could have obtained a warrant before the
search and arrest. But as trial testimony explained, the officers did not know
the drop location beforehand. The bill of lading directed the undercover officers
to a Wal-Mart parking lot. They called the telephone number listed on the bill
of lading and were told to wait and then follow the individual to a previously
undisclosed location. The undercover officers arrived at Mata’s business at
approximately 12:30 p.m. Only then could the officers have satisfied the Fourth
Amendment’s requirement that warrants must “particularly describe[] the place
30
See United States v. Carrillo-Morales, 27 F.3d 1054, 1063 (5th Cir. 1994) (holding that
the officers’ fears that they could lose contraband in traffic and endanger officers and other
motorists if the driver decided to evade the police was sufficient to stop the vehicle).
12
No. 06-40957
to be searched.”31 We have previously held that officers are not required to
obtain a warrant as soon as practicable.32
Mata argues that since other vehicles had come and gone during the day,
the white box truck’s departure could not create an exigency. Under the
standard of review and given both the district judge’s findings and witness
testimony, no clear error exists as to whether the truck’s departure created an
exigency. The testimony at trial and at the suppression hearing recounted
several facts, including the amount of time the truck was present and the
manner in which it was loaded, that indicated the reasonableness of the officers’
belief that the truck was about to leave and that it contained the marijuana.
When we consider this testimony coupled with the knowledge the police had
from the controlled delivery, and viewing these facts in the light most favorable
to the government as the prevailing party, we do not find that the officers
created the exigency or that it was unreasonable to act in the manner the
officers did.
Mata next contends that the officers lacked a reasonable, articulable
suspicion that the area to be swept contained a person posing a danger to those
on the scene. Mata makes specific mention of Agent Comesanas’s testimony that
he had “no idea” who was inside, and thus he felt the sweep was necessary to
protect the officers; Mata also notes that the district judge predicated his
31
U.S.CONST. amend. IV.
32
Carillo-Morales, 27 F.3d at 1063 (“[O]fficers are not required to obtain a warrant as
soon as it is practicable to do so.”); see also United States v. Webster, 750 F.2d 307, 327 (5th Cir.
1984) (“It is, of course, axiomatic that agents are not required to obtain a search warrant as
soon as practicable to do so. Moreover, an officer’s failure to avail himself of an early
opportunity to obtain a warrant will not automatically preclude him from relying on exigent
circumstances that may arise later. . . . That the exigency was foreseeable at the time the
decision was made to forego or postpone obtaining a warrant does not, by itself, control the
legality of a subsequent warrantless search triggered by that exigency. . . . Thus, unlike the
case of the ‘routine’ felony arrest, where a given individual and a distinct crime is involved, the
fluidity of an ongoing investigation of the distribution of narcotics makes the obtaining of an
adequate search warrant more difficult to time in the flow of events.”) (citations omitted).
13
No. 06-40957
decision on his finding that “the officers had no idea as to whether there were
other individuals with weapons inside.” But while the officers might have lacked
articulable facts as to the specific identity of any individual within the building,
the trial court found and testimony supported a reasonable, articulable suspicion
that the area to be swept contained a person posing a danger.
First, the officers did not merely suspect that the individuals might
possess contraband, as in the Munoz-Guerra or Vega cases; the officers knew
with absolute certainty. Undercover police working with the officers had only
hours before made a controlled delivery of 1,283 kilograms of marijuana.
Throughout the surveillance, Mata acknowledges and the testimony
demonstrated that numerous cars and individuals entered and exited the lot,
which meant that at any given time the officers might have lacked an accurate
count of suspects present. Second, the testimony also revealed that individuals
were conducting counter-surveillance—keeping an eye out for law
enforcement—while the marijuana was inside Mata’s garage. When the police
gave the “take down” signal, at least four individuals ran in different directions,
including two behind Mata’s building.
This case is similar to United States v. Watson,33 in which this court
upheld a protective sweep. In that case, the district court had found that the
police knew Watson and another accomplice had entered Watson’s house with
drugs, creating a possibility that the drugs could be destroyed or removed if not
seized. The officers believed that Watson might have additional accomplices who
could pose a danger, even though the officer who made the sweep testified that
he lacked specific reason to believe other individuals were in the house, but that
their presence existed as a possibility.34 This court held that while the factual
33
United States v. Watson, 273 F.3d 599, 603 (5th Cir. 2001).
34
Id. at 601.
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No. 06-40957
basis might be disputable, it was reasonable enough that this court could not say
the district court’s holding was erroneous. This case is also similar to cases from
outside this circuit upholding a protective sweep incident to a raid on a
distribution or manufacturing center for narcotics.35
Given this court’s precedent, the standard of review, and the district
court’s factual findings, we cannot say that the district court erred in upholding
the protective search and in denying the motion to suppress evidence of the
marijuana and firearms found in plain view during that sweep.
B
We now consider whether the Matas’ consent justified a warrantless
search of the garage. A consensual search is another well-established exception
to the Fourth Amendment’s warrant requirement.36 Only free and voluntary
consent justifies a warrantless search.37 In reviewing a finding that consent was
35
See, e.g., United States v. Smith, 131 F.3d 1392, 1397 (10th Cir. 1997) (holding that
police “could rationally infer . . . that Mr. Snider had accomplices in either [his] house or
garage” and therefore could conduct a protective sweep when they were aware that Snider was
operating a methamphetamine operation at the premises, where others were living and
assisting him and where he had been observed shortly before the sweep); United States v.
Mickens, 926 F.2d 1323, 1329 (2d Cir. 1991) (upholding a protective sweep of the defendant’s
residence based on officer’s reasonable belief that defendant was a drug dealer with violent
tendencies); United States v. Castillo, 866 F.2d 1071, 1081 (9th Cir. 1988) (“While the officers
did not know if anyone else was in the [defendant’s] apartment at the time of entry, they were
aware that several persons were participants in [defendant’s] conspiracy, any one of whom
might be then present in the [defendant’s] apartment guarding their cocaine supply or large
sums of money received from prior sales. . . . We are satisfied that the facts known to the
officers prior to their entry demonstrate their [protective sweep] was warranted.”). Cf. United
States v. Hoyos, 892 F.2d 1387, 1397 (9th Cir. 1989) (“If the exigencies to support a protective
sweep exist, whether the arrest occurred inside or outside the residence does not affect the
reasonableness of the officer’s conduct. A bullet fired at an arresting officer standing outside
a window is as deadly as one that is projected from one room to another.”), overruled on other
grounds by United States v. Ruiz, 257 F.3d 1030 (9th Cir. 2001).
36
Florida v. Jimeno, 500 U.S. 248, 250 (1991).
37
United States v. Mendez, 431 F.3d 420, 429 (5th Cir. 2005).
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No. 06-40957
voluntarily given, this court employs a clearly erroneous standard.38 This
standard is particularly strong when the district judge based his findings on oral
testimony at the suppression hearing,39 as is this case here.
Voluntariness is determined by the totality of circumstances, which a court
evaluates by considering six factors: (1) the voluntariness of the defendant’s
custodial status; (2) the presence of coercive police procedures; (3) the extent and
level of the defendant’s cooperation with the police; (4) the defendant’s
awareness of his right to refuse to consent; (5) the defendant’s education and
intelligence; and (6) the defendant’s belief that no incriminating evidence will be
found.40
Mata first contends that the district court erred because it failed to
consider the six factors. While the district court judge did not list his findings
numerically, his findings clearly indicate that he had these factors in mind.
With respect to Mata’s custodial status, the district judge concluded, and
testimony at both the hearing and during trial supported, that Mata’s custodial
status was voluntary. Mata was not under arrest and no threats were made that
the police intended to arrest him. Mata was free to go as he pleased.
The judge found that the police used no coercive procedures. The police
did not have their weapons drawn. During the suppression hearing, Julia Mata
testified she did not recall that the officers even carried weapons. Agent
Comesanas testified that no officer threatened or yelled at Mata or “treated him
rudely.” The testimony revealed that Mata gave verbal consent without
pressure.
38
Id.
39
Id. (quoting United States v. Sutton, 850 F.2d 1083, 1086 (5th Cir. 1988)).
40
Id.
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No. 06-40957
With respect to the extent of the defendant’s cooperation, Mata gave verbal
consent that the officers could search, said that he had “nothing to hide,” and
told the officers he had guns in the safe and provided them with the
combination. When the officers could not open the safe, Mata assisted them.
Regarding Mata’s awareness of his right to refuse consent, the district
court found that while he refused to sign the written consent form, he did not
withdraw his verbal consent. When Mata said that “Maybe I should speak with
my lawyer,” no officer prevented Mata from calling his attorney, Agent
Comesanas encouraged Mata to call, Mata had access to a cellular phone, and
Mata never called. Neither did Mata request the agents provide him with an
attorney. Mata contends that his statement “Maybe I should speak with my
attorney” should have terminated further questions, including any further
request for consent to search. As the district court found, Mata was not yet in
custody or under arrest, nor had any charges been filed. The Sixth and
Fourteenth Amendment right to counsel attaches only at or after the time that
adverse judicial proceedings have been initiated.41 Additionally, since Mata was
not in custody, he did not require Miranda warnings.
Moreover, the court found “nothing to indicate that the Defendant, nor his
wife, were in any kind of situation where they didn’t understand the questions,
nor their comprehension with regards to what consent mean[s].” Finally, while
the district judge failed to make an explicit finding regarding Mata’s belief as to
the existence of incriminating evidence, the testimony of both Agent Comesanas
and Julia Mata made clear that both Matas knew guns were in the safe and that
they “had nothing to hide.”
Mata contends that the district court improperly placed the burden on
Mata, because of a statement in the concluding paragraph of the judge’s findings
41
Kirby v. Illinois, 406 U.S. 682, 688 (1972).
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No. 06-40957
that said there was “nothing to indicate here that this was not involuntary, that
it was as a result of undue pressure on the part of law enforcement officials, and
also nothing to indicate that the Defendant, nor his wife, were in any kind of
situation where they didn’t understand the questions, nor their comprehension
with regards to what consent mean[t].”. This does not indicate that the district
court misplaced the burden on Mata to disprove the voluntariness of the search.
The government presented evidence demonstrating the voluntariness of Mata’s
consent, and the judge made findings from that evidence based on the six factors.
If anything, the judge’s statement merely reflects that after the government had
proved voluntariness, Mata presented no evidence that would refute that proof.
Given the district court’s factual findings and under the clearly erroneous
standard, we find that the district court’s conclusion that Mata and his wife gave
free and voluntary consent was proper.
III
For the reasons discussed above, we AFFIRM the district court’s denial of
Mata’s motion to suppress evidence.
Judge Jolly joins in the judgment only.
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