United States v. Tompkins

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

__________________________________

No. 97-50237
(Summary Calendar)
__________________________________

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

DAVID ROY TOMPKINS, a/k/a
DAVID ROY YATES

Defendant-Appellant.

____________________________________________________

Appeal from the United States District Court
for the Western District of Texas

____________________________________________________

November 25, 1997

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant David Roy Tompkins appeals his 21 U.S.C.

§ 841(a)(1) conviction for possession with intent to distribute

methamphetamine, arguing that some of the evidence used against him

was the product of an unlawful search and, as such, was erroneously

admitted at trial. Tompkins’ initial contention is that this

circuit should revise its standard of review of a district court’s

ultimate determination that consent to search was voluntary ——

changing from plain error to de novo —— basing his argument on a
recent Supreme Court opinion.1 Finding Tompkins’ position on the

appropriate standard of review fallacious, and perceiving no

reversible error in the district court’s findings and holding, we

affirm.

I.

FACTS AND PROCEEDINGS

Tompkins was convicted following a bench trial for possession

with intent to distribute methamphetamine and sentenced to a sixty-

month term of imprisonment, a four-year term of supervised release,

and a $3,000 fine. Prior to trial, Tompkins filed a motion to

suppress evidence seized during a search of the motel room that he

was occupying when arrested.

Tompkins argued for suppression on the ground that his consent

to the search —— conducted without a warrant —— was not voluntarily

given; rather, insists Tompkins, his consent was obtained through

the arresting officer’s threat to secure the motel room and procure

a search warrant. The officer’s threat, says Tompkins, gave him

the impression that a search was inevitable, thereby causing him to

believe that he had no choice but to consent. So induced, asserts

Tompkins, his consent was coerced, and the motel-room evidence was

obtained by means of an unlawful search. As a result, concludes

Tompkins, the district court erred reversibly in denying his motion

to suppress and admitting the evidence at trial.

The evidence introduced at the suppression hearing revealed

1
Ornelas v. United States, __ U.S. __, 116 S.Ct. 1657 (1996).
See infra note 5 and accompanying text.

2
the following facts surrounding Tompkins’ arrest. An anonymous

informant, through a “Crimestoppers” hotline, informed law

enforcement authorities that Tompkins had checked into a La Quinta

Motel room and that he had a large quantity of methamphetamine with

him at the time. According to the informant, Tompkins had

transported the methamphetamine from California to Texas for

distribution. The informant also indicated that Tompkins was

accompanied by a woman, Kimberly Rendon, who might have been wanted

by Bell County authorities. And the informant provided physical

descriptions of both Tompkins and Rendon.

Acting on that information, Officer Michael Brown of the

Killeen Police Department contacted the La Quinta desk clerk to

confirm that Tompkins was registered at the motel. At first the

clerk was unable to confirm Tompkins’ registration, but a

subsequent check revealed that Tompkins —— originally thought to

have been registered to room 234 —— had been given room 236. The

La Quinta night manager called Officer Brown at 3:30 a.m., shortly

after Tompkins and those accompanying him returned to the motel.

Brown went to the motel and kept Tompkins’ room under surveillance

until its lights were dimmed, then departed. He returned to the

motel prior to check-out time the next morning and resumed his

surveillance.

Officer Brown saw three women —— one of whom matched the

description of Rendon —— leave the room, enter a vehicle, and drive

away. While Brown followed the vehicle he had a check run on

Rendon. He then stopped the car after observing the driver commit

3
a traffic violation and called for backup. Rendon was a passenger

in the vehicle. Brown told the occupants why he had stopped their

car, and also related the information that he had received

regarding the methamphetamine.

The driver consented to a search of the vehicle, and a drug

dog alerted to a cosmetic case that Officer Brown had seen one of

the passengers carrying out of Tompkins’ motel room. The officer

found a baggie containing methamphetamine residue in the cosmetic

case. One of the women then told Officer Brown that there was

methamphetamine in Tompkins’ room. Rendon was arrested on an

outstanding warrant, but the other women were released. Fearing

that the released women might contact Tompkins, Officer Brown

quickly returned to the motel with another officer.

When he arrived, Officer Brown knocked on Tompkins’ door and

identified himself as a police officer. Tompkins presented his

identification on request but refused to allow the officers to

enter the room. Brown told Tompkins about the anonymous tip and

Rendon’s arrest. When Tompkins heard this he was “visibly shaken.”

Brown again asked Tompkins for consent to a search of his motel

room, informing Tompkins that he could refuse. Tompkins was also

told by Brown that the officers would obtain a search warrant for

the room if consent were withheld and that Tompkins would be denied

access to the room while the warrant was being obtained. Tompkins

then agreed to the search and signed a consent form. A

distribution quantity of methamphetamine was recovered from the

room.

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 II.

ANALYSIS

A. STANDARD OF REVIEW

With regard to a ruling on a motion to suppress, we review

“the district court’s factual findings for clear error and its

ultimate conclusion as to the constitutionality of the law

enforcement action de novo.”2 Under the law of this circuit, the

voluntariness of a detainee’s consent to a warrantless search is a

finding of fact to be reviewed for clear error.3 Despite this

long-standing Fifth Circuit standard, Tompkins maintains that, in

light of the Supreme Court’s recent Ornelas decision,4 we should

re-examine our standard of review of the question whether consent

to search is given voluntarily and change to a standard that

incorporates de novo review. We disagree.

In Ornelas, the Supreme Court held that a district court’s

determination of reasonable suspicion and probable cause when

evaluating the constitutionality of investigative stops and

searches under the Fourth Amendment is subject to a two-tier

standard of appellate review: The ultimate conclusion on reasonable

2
United States v. Jenkins, 46 F.3d 447, 451 (Th Cir. 1995)
(citing United States v. Calves-Villarreal, 3 F.3d 124, 126 (5th
Cir. 1993)).
3
United States v. Brown, 102 F.3d 1390, 1394 (5th Cir. 1996),
cert. denied, __ U.S. __, 117 S.Ct 1455, 137 L.Ed.2d 559 (1997);
United States v. Zucco, 71 F.3d 188, 191 (5th Cir. 1995), cert.
denied, __ U.S. __, 117 S.Ct. 91, 136 L.Ed.2d 47 (1996); United
States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993), cert.
denied, 508 U.S. 944, 113 S.Ct 2427, 124 L.Ed.2d 647 (1993).
4
__ U.S. __, 116 S.Ct. 1657 (1996).

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suspicion or probable cause —— a mixed question of law and fact ——

is reviewed de novo, whereas the events leading up to the search or

seizure —— the historical facts —— are reviewed for clear error,

giving “due weight to inferences drawn from those facts by resident

judges and local law enforcement officers.”5

Tompkins notes that the determination whether consent to a

warrantless search was voluntary involves applying legal principles

to historical facts.6.516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383

(1995).7 Thus, urges Tompkins, voluntariness of consent should be

subject to the same two-tier standard of review that

Ornelas established for reasonable suspicion and probable cause ——

insisting that voluntariness of consent too is a mixed question of

law and fact under the Fourth Amendment.8

5
Id. at 1663.
6
Tompkins relies on Thompson v. Keohane,

516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), for the
proposition that voluntariness of consent to search is a mixed
question of law and fact. The Keohane court held that, for
purposes of federal habeas corpus proceedings, the issue whether a
suspect is “in custody,” and therefore entitled to Miranda
warnings, is a mixed question of law and fact qualifying for
independent review. Id. at ___, 116 S.Ct. at 460. Tompkins’
reliance on Keohane is misplaced. See Ohio v. Robinette, discussed
infra note 8 and accompanying text.
8
See Ornelas, ___ U.S. at ___, 116 S.Ct at 1662 (“The
principal components of a determination of reasonable suspicion or
probable cause will be the events which occurred leading up to the
stop or search, and then the decision whether these historical
facts, viewed from the standpoint of an objectively reasonable
police officer, amount to reasonable suspicion or to probable
cause. The first part of the analysis involves only a
determination of historical facts, but the second is a mixed
question of law and fact: ‘[T]he historical facts are admitted or
established, the rule of law is undisputed, and the issue is
whether the facts satisfy the [relevant] statutory [or

6
 We decline Tompkins’ invitation to employ Ornelas’ two-tier

standard when we review a district court’s determination whether

consent to search was given voluntarily. The Supreme Court

reiterated its deferential standard of review for Fourth Amendment

voluntariness determinations in Ohio v. Robinette,9 a post-Ornelas

decision. The Robinette Court noted that voluntariness of consent

to search is a question of fact;10 as such, it does not trigger the

de novo review mandated by the Supreme Court in Ornelas for mixed

questions of law and fact.11 The Supreme Court’s refusal to depart

constitutional] standard, or to put it another way, whether the
rule of law as applied to the established facts is or is not
violated.’”)(citation omitted).
9
___ U.S. ___, 117 S.Ct. 417 (1996).
10
Id. at 421 (“The Fourth Amendment test for a valid consent
to search is that the consent be voluntary, and ‘[v]oluntariness is
a question of fact to be determined from all the circumstances.”)
(citing Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct.
2041, 2059, 36 L.Ed.2d 854 (1973)).
11
Care should be taken not to confuse voluntariness of consent
to search in the Fourth Amendment context with voluntariness of
criminal confessions in the Fifth or Fourteenth Amendment contexts,
which ultimate issue is uniformly held to be subject to de novo
review. See Haynes v. Washington, 373 U.S. 503, 515, 83 S.Ct.
1336, 1344, 10 L.Ed.2d 513 (1963); United States v. D.F., 115 F.3d
413, 419 (7th Cir. 1997); United States v. Han, 74 F.3d 537, 540 n.
1 (4th Cir. 1996), cert. denied, U.S. , 116 S.Ct. 1890, 135
L.Ed.2d 184 (1996); United States v. Kime, 99 F.3d 870, 879 (8th
Cir. 1996), cert. denied, U.S. , 117 S.Ct. 1015, 136 L.Ed.2d
892 (1997); United States v. Hernandez, 93 F.3d 1493, 1501 (10th
Cir. 1996); United States v. Rambo, 74 F.3d 948, 953 (9th Cir.
1996), cert. denied, U.S. , 117 S.Ct. 72, 136 L.Ed.2d 32
(1996) United States v. Bethancourt, 65 F.3d 1074, 1078 (3d Cir.
1995), cert. denied, U.S. , 116 S.Ct. 1032, 134 L.Ed.2d 109
(1996); United States v. Scurlock, 52 F.3d 531, 535 (5th Cir.
1995); United States v. Burns, 15 F.3d 211, 216 (1st Cir. 1994);
United States v. Barbour, 70 F.3d 580, 584 (11th Cir. 1995), cert.
denied, U.S. , 116 S.Ct. 1445, 134 L.Ed.2d 565 (1996));
United States v. Wrice, 954 F.2d 406, 411 (6th Cir. 1992), cert.
denied, 504 U.S. 945, 112 S.Ct. 2286, 119 L.Ed.2d 211 (1992);

7
from its established precedent,12 coupled with the virtually

monolithic position of the circuits in affording deferential review

to voluntariness inquiries raised by consensual searches,13

persuades us that Tompkins’ reliance on Ornelas to mandate a change

in our clear error standard of review is misplaced.14

B. APPLICABLE LAW

A search conducted pursuant to consent is one of the well-

settled exceptions to the Fourth Amendment’s warrant requirement.15

In relying upon the consensual search exception, the government

United States v. Yunis, 859 F.2d 953, 958 (D.C. Cir. 1988).
12
See Schneckloth 412 U.S. at 227, 93 S.Ct. at 2047-48 (“[T]he
question whether a consent to a search was in fact ‘voluntary’ or
was the product of duress or coercion, express or implied, is a
question of fact to be determined from the totality of all the
circumstances.”).
13
United States v. Chan-Jimenez, No. 96-10482, 1997 WL 600644,
at *3 (9th Cir. Oct. 1, 1997); United States v. Carrate, 122 F.3d
666, 670 (8th Cir. 1997); United States v. Brown, 102 F.3d 1390,
1394 (5th Cir. 1996), cert. denied __ U.S. __, 117 S.Ct 1455, 137
L.Ed.2d 559 (1997); United States v. Lattimore, 87 F.3d 647, 650
(4th Cir. 1996); United States v. Navarro, 90 F.3d 1245, 1256 (7th
Cir. 1996); United States v. Orrego-Fernandez, 78 F.3d 1497, 1505
(10th Cir. 1996); United States v. Tillman, 963 F.2d 137, 143 (6th
Cir. 1992); United States v. Lewis, 921 F.2d 1294, 1301 (D.C. Cir
1990); United States v. Garcia, 890 F.2d 355, 359 (11th Cir. 1989);
United States v. Kimball, 741 F.2d 471, 474 (1st Cir. 1984); United
States v. Faison, 679 F.2d 292, 298 n. 5 (3d Cir. 1982).
14
Given our adherence to the maxim of stare decisis within our
own court, this panel could not change the standard of review for
voluntariness of consent —— or anything else, for that matter ——
when, as here, doing so would constitute failure to follow
precedent established in an earlier decision. The most that we
could do if we agreed with Tompkins —— which we do not —— would be
to follow existing precedent, note our concerns, and suggest (or
let Tompkins suggest) rehearing en banc.
15
United States v. Jenkins, 46 F.3d 447, 451 (5th Cir. 1995)
(citing Schneckloth, 412 U.S. at 219, 93 S.Ct. at 2045).

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must prove, by a preponderance of the evidence, that consent was

freely and voluntarily given.16 Voluntariness is determined from

the totality of the circumstances surrounding the search;17 relevant

factors include:

(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.18

Although all six factors are relevant, “no single factor is

dispositive or controlling of the voluntariness issue.”19

Tompkins argues that his consent was coerced in light of the

investigating officer’s failure, when informing Tompkins of the

consequences of his refusal to consent, to distinguish between

procuring a search warrant and attempting to procure a search

warrant. Tompkins’ point is that because he was told by Officer

Brown that a warrant would be obtained —— not that a warrant would

be sought or applied for —— Tompkins was given the impression that

a search of the motel room was inevitable. This impression, he

insists, rendered his consent no more than an acquiescence to that

which he was led by Brown to believe was a law enforcement claim of

16
Id.; United States v. Ponce, 8 F.3d 989, 997 (5th Cir. 1993).
17
Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2048; Jenkins, 46
F.3d at 551.
18
United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th
Cir. 1988) (citations omitted).
19
Id.; Jenkins, 46 F.3d at 451.

9
lawful authority.20

In support of his argument, Tompkins invites our attention to

dicta in United States v. Boukater21 suggesting that consent might

not be voluntary if the investigating officer “either said or

implied that defendant might as well consent because a warrant

could be quickly obtained if he refused.”22 Tompkins also relies

on United States v. White,23 in which we held that the district

court’s voluntariness finding was not clearly erroneous when the

investigating agent, in requesting the defendant’s consent to

search, explained that he could not automatically get a warrant but

would have to show probable cause to a magistrate.24

We agree with the district court’s observation that Officer

Brown’s statement to Tompkins concerning the possibility of a

search warrant is but one factor to be considered among the

totality of the circumstances in evaluating the voluntariness of

20
See Bumper v. North Carolina 391 U.S. 543, 548-49, 88 S.Ct.
1788, 1791-92, 20 L.Ed.2d 797 (1968) (noting that the government’s
burden of proving voluntariness of consent “cannot be discharged by
showing no more than acquiescence to a claim of lawful authority”
and finding such acquiescence where “consent” to search was given
only after the investigating officer falsely asserted that he had
a warrant).
21
409 F.2d 537 (5th Cir. 1969).
22
Id. at 538.
23
617 F.2d 1131 (5th Cir. 1980).
24
Id. at 1134. In White, however, we refused to speculate on
the application of the Boukater dicta as the “facts of [the White]
case did not fit the [Boukater] hypothesis.” Id.

10
Tompkins’ consent.25 We also agree with the court’s reasoning that

the distinction between a suspect’s being told by an officer that

he “would obtain” a warrant rather than that he “would apply for”

a warrant, is largely semantic and that, under the circumstances of

this case, the distinction weighs only slightly in favor of a

coercion finding.

Considering all the relevant factors, Officer Brown’s choice

of words is not sufficiently significant to convince us that the

district court’s voluntariness determination was clearly

erroneous:26 Tompkins was not taken into custody and thus was

apparently free to leave; other coercive police procedures were

absent, i.e., Tompkins was not handcuffed until the search revealed

the presence of methamphetamine, no threats or violence were used,

and there was no overt display of authority; when Tompkins

initially refused to allow the officers to enter his room, he was

25
See United States v. Momodu, 909 F. Supp. 1571, 1580 (N.D.
Ga. 1995) (refusing to decide that “the way [an officer presents]
the possibility of a search pursuant to a warrant is, in itself,
dispositive of the issue of voluntariness”).
26
Tompkins cites a case from the Northern District of Georgia,
in which the district court determined that the manner in which the
officer presented the possibility of search pursuant to warrant
“strongly suggest[ed] that . . . consent was not freely given.”
Id. at 1580. The officer whose consensual search was questioned in
Momodu, however, was more coercive than Brown, informing the
apartment owner that “he ‘was going to search the apartment’ and
that he ‘was going to do it with a search warrant if she did not
give [him] consent.’” Id. In addition, the officer explained to
the apartment owner that he “would have an officer sit with her
until he obtain[ed] his warrant.” Id. at 1577. Although Brown
informed Tompkins that he would secure the motel room, he did not
indicate that he would restrict Tompkins’ movement in any way;
rather, Tompkins was told only that he would not be able to go back
into the room while a warrant was being obtained.

11
told that he did not have to consent to a search; Tompkins

cooperated to the extent of providing his identification and

ultimately permitting the search; Tompkins was found by the court

to be a man of average intelligence who, with charges pending

against him in California, was not unfamiliar with the criminal

justice system; and, finally, Tompkins’ knowledge that

incriminating evidence would be found does not necessarily weigh

against a finding of voluntary consent. For example, inasmuch as

Tompkins knew that some inculpatory evidence was already in the

possession of police, he might have consented in the hope that his

cooperation would result in more favorable treatment.

III.

CONCLUSION

Under the totality of the circumstances surrounding Tompkins’

consent to search his motel room, we can discern no clear error in

the district court’s conclusion that Tompkins’ consent was

voluntary. For the foregoing reasons, the judgment of the district

court is, in all respects,

AFFIRMED.

12