UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-20682
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
LINDA SUNIGA YORLE HERNANDEZ,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
January 11, 2002
Before JONES, SMITH, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Defendant-Appellee, Linda Suniga Yorle Hernandez, was indicted
for possession with intent to distribute more than one kilogram of
heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i).
The district court granted Hernandez's motion to suppress the
heroin seized during a search of her luggage at a bus station. The
district court concluded that (1) the officer's manipulation of
Hernandez's suitcase was an illegal search in violation of the
1
Fourth Amendment under Bond v. United States, 529 U.S. 334 (2000),
and (2) Hernandez's subsequent consent to search her suitcase did
not cure the earlier Fourth Amendment violation. We AFFIRM.
I. BACKGROUND
On September 7, 1999, members of the Houston Police Department
were surveying passengers at the Greyhound bus station in Houston
for possible drug traffickers. During this drug interdiction
effort, Officer Armando Ordaz, who was not in uniform, observed
Hernandez enter the station. He continued to observe her as a
result of alleged suspicious activity.
Officer Ordaz testified that Hernandez entered the station
with a new black suitcase, which did not have identification tags.
In addition, Officer Ordaz noted that her suitcase appeared to be
heavy by the way she had difficulty moving it when she was standing
in the passenger line. According to Officer Ordaz, Hernandez
appeared nervous and frequently looked around the station as if she
were trying to determine whether she was being observed. Hernandez
also was observed checking her ticket several times and “swaying
back and forth,” which Officer Ordaz considered evidence that she
was anxious for the bus to depart. Officer Ordaz, furthermore,
noted that Hernandez guarded her suitcase "in a possessive manner."
Moreover, Officer Ordaz stood behind Hernandez in the passenger
line and observed that she was traveling to Washington, D.C., which
2
is, according to DEA investigation reports, a major "drug demand
city."
Officer Ordaz lost visual contact with Hernandez when he was
called away by another officer. Later, when Officer Ordaz's
attention was returned to Hernandez, he observed that both she and
her suitcase were aboard the Washington bound bus. Officer Ordaz
approached the bus and entered the luggage compartment to search
for Hernandez's suitcase. Although Hernandez's suitcase did not
have any identification tags, Officer Ordaz was able to locate it
because he recalled that the brand name was “Bagmax.” Without
taking the suitcase out of the luggage compartment, Officer Ordaz
picked it up and turned it around. He further manipulated the
suitcase by pressing on the outside of it with his hands. He
observed that it had “something solid or heavy in the center of
it.” At Hernandez's detention hearing, Officer Ordaz testified
that after handling the suitcase and feeling something solid or
heavy in it, he became more suspicious. However, on redirect
examination by the government, Officer Ordaz denied that he became
more suspicious after handling the suitcase.
After manipulating Hernandez's suitcase in the luggage
compartment, Officer Ordaz consulted with other police officers,
and they decided to speak with her. Officer Ordaz then boarded the
bus and approached Hernandez. He identified himself as a police
officer and questioned Hernandez about her travel plans. Officer
Ordaz then asked Hernandez to exit the bus with him. Officer Ordaz
3
testified that Hernandez appeared nervous when she was leaving the
bus and that she produced seven one-way bus tickets, all of which
were from Houston to Washington, D.C., issued in Hernandez's name
and paid for with cash.
Hernandez told Officer Ordaz that she had a tan backpack as
well as a suitcase, which she described to him. Officer Ordaz then
pulled Hernandez's suitcase from the luggage compartment and asked
her to identify it. Hernandez told Officer Ordaz that she was
transporting the suitcase for someone else who had given it to her
in San Antonio and that she did not know its contents.
Officer Ordaz asked Hernandez for permission to open her
suitcase, and she consented. However, Hernandez did not know the
combination to the lock on the suitcase. As a result, Officer
Ordaz testified that he pried open the zipper of the suitcase using
either a pen or knife. While inspecting the contents of the
suitcase, Officer Ordaz discovered more than four kilograms of
heroin hidden within socks.
Hernandez initially pled guilty to possessing, with the intent
to distribute, more than one kilogram of heroin. However, prior to
her sentencing, the United States Supreme Court decided Bond v.
United States, 529 U.S. 334, 335 (2000), holding that a “law
enforcement officer's physical manipulation of a bus passenger's
carry-on luggage violated the Fourth Amendment's proscription
against unreasonable searches.” As a result, the district court
4
allowed Hernandez to withdraw her guilty plea.
Hernandez then moved to suppress the heroin. Rather than
holding an evidentiary hearing on the suppression motion, the
parties agreed to let the district court decide on the basis of the
transcript of Hernandez's detention hearing and the DEA's report of
the investigation. Hernandez argued that under Bond, the
manipulation of her suitcase was an illegal search violating the
Fourth Amendment and that the resulting contraband was “fruit of
the poisonous tree” that must be suppressed. See United States v.
Rivas, 157 F.3d 364, 368 (5th Cir. 1998). The government argued
that the contraband should not be suppressed because Officer Ordaz
had consent to search the suitcase, and because of the inevitable
discovery/independent source doctrine.
The district court granted the motion to suppress. The court
concluded that Bond was directly on point and found that
Hernandez's Fourth Amendment rights were violated because Officer
Ordaz searched her suitcase without probable cause and prior to
obtaining consent. The court determined that the inevitable
discovery/independent source doctrine did not apply because it was
clear that the officers were not pursuing a substantial alternative
line of investigation when the suitcase was being search. The
court noted that no one had reported that drug trafficking was
occurring at the bus station, much less that Hernandez might be
involved. Also, there were no drug-sniffing dogs present to alert
5
the officers to Hernandez's suitcase. Notably, the court
characterized Officer Ordaz's testimony that his suspicion
concerning Hernandez did not increase after he had manipulated her
suitcase as “untruthful.” The reasons the district court concluded
Ordaz was lying were that (a) it is “incredible” that feeling
something suspicious in the bag did not increase Ordaz's
suspicions; and (b) Ordaz gave inconsistent testimony on this
point.
Furthermore, the court found that Officer Ordaz “was
suspicious of Hernandez only because she looked nervous, she was
anxious, her suitcase appeared heavy, the suitcase did not have an
identification tag and the suitcase appeared new.” However, the
court noted that “none of these observations alone, or together,
rose beyond suspicion.” Rather, according to the court, those
characteristics could have been observed from watching “an innocent
person who is not engaged in drug trafficking.” As a result, the
court found “incredible officer Ordaz's testimony that his
suspicions were unaffected by his 'touching and feeling' of the
'Bagmax' suitcase.”
The court also concluded that Hernandez's subsequent consent
did not cure the earlier violation. However, the court made no
findings regarding the voluntariness of Hernandez's consent. The
government appeals the district court's ruling.
6
II. STANDARD OF REVIEW
The district court's determination of fact in ruling on a
motion to suppress are accepted unless the court's findings are
clearly erroneous. United States v. Jones, 234 F.3d 234, 239 (5th
Cir. 2000). A finding is clearly erroneous if the court is left
with the "definite and firm conviction that a mistake has been
committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573
(1985) (quoting United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948)). Questions of law are reviewed de novo. Jones,
234 F.3d at 239. The court views the evidence in the light most
favorable to the prevailing party, which in this case is the
defendant. Id.
III. Discussion
The government appeals the district court's grant of
Hernandez's motion to suppress the heroin seized after searching
her suitcase. We note that the government does not argue on appeal
that the district court erred in concluding that the physical
manipulation of Hernandez's suitcase was an illegal search under
the Supreme Court's decision in Bond. It is well established that
issues raised before the district court but not presented on appeal
are waived. HC Gun & Knife Shows, Inc. v. City of Houston, 201
F.3d 544, 548 (5th Cir. 2000). Therefore, we need not consider
that issue in detail because the government has effectively
7
conceded that Officer Ordaz's manipulation of the suitcase was an
illegal search.
The threshold question for this court is whether Hernandez's
subsequent consent to search her luggage cured any possible Fourth
Amendment violation. When a person gives consent to search, that
consent “may, but does not necessarily, dissipate the taint” of a
prior Fourth Amendment violation. United States v. Chavez-
Villarreal, 3 F.3d 124, 127 (5th Cir. 1993). The admissibility of
the challenged evidence “turns on a two-pronged inquiry: 1)
whether the consent was voluntarily given; and 2) whether the
consent was an independent act of free will.” Jones, 234 F.3d at
242 (citing Chavez-Villarreal, 3 F.3d at 127). The first prong of
this inquiry “focuses on coercion, the second on causal connection
with the constitutional violation.” Chavez-Villarreal, 3 F.3d at
127.
To determine whether consent was voluntarily given, the court
uses a six factor test: 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
consent; 5) the defendant's education and intelligence; and 6) the
defendant's belief that no incriminating evidence will be found.
Jones, 234 F.3d at 242 (citing United States v. Shabazz, 993 F.2d
431, 438 (5th Cir. 1993)). No single factor in this test is
8
dispositive. Id.
To determine whether the defendant's consent was an
independent act of free will, breaking the causal chain between the
consent and the constitutional violation, we must consider three
factors: 1) the temporal proximity of the illegal conduct and the
consent; 2) the presence of intervening circumstances; and 3) the
purpose and the flagrancy of the initial misconduct. Jones, 234
F.3d at 243 (citing Chavez-Villarreal, 3 F.3d at 128).
A. Voluntariness of Consent
Turning to the first prong of the test, we find that
Hernandez's consent was voluntarily given. First, Hernandez's
custodial status was voluntary. Hernandez maintains that she did
not feel free to leave for Washington, D.C., after having a police
officer board the bus where she was seated, identify himself, and
then ask her to disembark from the bus. However, Hernandez was not
in custody when she consented to leave the bus or gave her consent
for the suitcase to be searched. She had not been arrested and
there is nothing in the record to suggest that she did not feel she
could refuse to give her consent or speak with Officer Ordaz. See
United States v. Cooper, 43 F.3d 140, 146 (5th Cir. 1995) (finding,
under similar circumstances, that because a reasonable person would
have felt free to decline the officer’s request, the initial
contact with the defendant was a legitimate and completely
consensual citizen-police encounter). Approaching someone who is
9
in a public place, identifying oneself as a police officer, and
asking questions does not constitute a seizure. United States v.
Gonzales, 842 F.2d 748, 752 (5th Cir. 1988) (citing United States
v. Hanson, 801 F.2d 757, 761 (5th Cir. 1986)).
Second, Officer Ordaz's actions were not coercive. Hernandez
contends that Officer Ordaz's actions of following her around in
the bus station was intimidating and, thus, coercive. However,
there is no evidence in the record to indicate that Hernandez even
knew she was being observed by police officers. Officer Ordaz
boarded the bus by himself. He did not display a weapon and he did
not attempt to threaten Hernandez in any way.
Third, Hernandez's cooperation with the police was
substantial. Hernandez argues to the contrary. She notes that she
did not give Officer Ordaz the combination to her suitcase and that
she falsely stated that there were no drugs in the suitcase and
that she did not pack the suitcase. Nevertheless, Hernandez
voluntarily agreed to get off the bus with Officer Ordaz. She
willingly identified her suitcase and gave permission for Officer
Ordaz to search it. There is nothing in the record that indicates
Hernandez displayed any hostile actions toward any police officer
or that she attempted to frustrate their investigation in any
considerable manner.
10
Fourth, we find that it is not clear from the record whether
Hernandez was aware of her right to refuse consent. The record
indicates that Officer Ordaz did not inform her that she did not
have to disembark from the bus upon his request or that she did not
have to consent to the search of her suitcase. However, this
factor is but one of six to be considered by this court. United
States v. Gonzales, 79 F.3d 413, 421 (5th Cir. 1996). And, the
government is not required to show that the defendant was aware of
her right of refusal. See Gonzales, 842 F.2d at 755 (finding that
“apprising” suspect of the right to refuse consent is not required
to render the consent voluntary”).
Fifth, the record indicates that Hernandez is well educated.
Hernandez contends that she did not have any education or training
in police-civilian interaction. This is not surprising. Most
civilians do not have that type of education. However, Hernandez
has graduated from medical school and claims to have been on her
way to Washington, D.C., where she intended to pursue further
medical training. In addition, she is conversant in both Spanish
and English. There is nothing to indicate that a lack of education
impacted the voluntariness of her consent.
Sixth, it is likely Hernandez knew that incriminating evidence
would be found. However, if she did not know of any drugs inside
the suitcase as she initially claimed, there would have been no
reason for her to deny consent for a search. Thus, there is
11
nothing under this factor to indicate that her consent was not
voluntary.
Based on the six factors discussed above, we find that
Hernandez voluntarily consented to having the police search her
suitcase. However, we must still determine whether the consent was
an independent act of free will. In other words, we must consider
whether the causal connection between the constitutional violation
and Hernandez's consent was sufficiently broken.
B. Consent as an Independent Act of Free Will
To determine whether the causal connection between the
constitutional violation and Hernandez's consent was sufficiently
broken, we must apply the three factors under the second prong of
the admissibility test, which were already mentioned above. Having
done that below, we find that there was not a sufficient break in
the causal connection between the initial search of Hernandez's
suitcase and the later search to which she consented. Therefore,
even though Hernandez voluntarily consented to Officer Ordaz’s
opening her suitcase and searching it, her consent did not cure the
Fourth Amendment violation caused by Officer Ordaz's prior
manipulation of the suitcase.
First, there was a close temporal proximity between the
illegal search of Hernandez's suitcase and her removal from the bus
and the subsequent search with Hernandez's consent. Officer
Ordaz's initial manipulation of Hernandez's suitcase and
12
Hernandez's consent were closely related in time. The government
points to no intervening circumstances.
The police misconduct, however, was not flagrant. Officer
Ordaz's physical manipulation of the suitcase likely would not have
been considered a search under Fifth Circuit precedent at the time.
Nevertheless, consideration of the above three factors leads this
court to conclude that the causal connection between the violation
and the consent was not broken. Therefore, we agree with the
district court's finding that it was only after Officer Ordaz had
manipulated the suitcase and had felt what he thought were
narcotics that he decided to approach Hernandez and ask her for
consent to search the suitcase.
Rather than consider the second prong of the test used to
determine whether challenged evidence is admissible, the government
cites United States v. Ibarra-Sanchez, 199 F.3d 753, 761 (5th Cir.
1999) (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963))
for the proposition that, “To warrant suppression, the challenged
evidence must have been obtained 'by exploitation of [the alleged]
illegality.'” In Ibarra-Sanchez, the police officers made a felony
stop of a van. As the officers approached the vehicle, they
smelled an odor of marijuana and decided to conduct a “protective
sweep” under Terry v. Ohio, 392 U.S. 1 (1968). They drew their
weapons, ordered the passengers out of the van, handcuffed them,
and placed them in the back of the police cars. Ibarra-Sanchez,
13
199 F.3d at 757. The defendants argued that the officers' show of
force “converted a Terry stop based on reasonable suspicion into a
full-blown arrest for which the officers had no probable cause.”
Id. at 760-61. The court, however, held the that there was no
causal link between the alleged arrest and the evidence of
marijuana because the police had probable cause to search the van
for drugs, and “it made no difference to the ultimate result
whether [the passengers] stood by the side of the road or sat
handcuffed in police cars.” Id. at 762.
In the instant case, however, the illegal search did make a
difference. The district court found that Officer Ordaz became
sufficiently suspicious to engage Hernandez in conversation only
after he had detected a hard, heavy item in the suitcase. We
cannot conclude that this factual finding is clearly erroneous
because Officer Ordaz contradicted himself when he was asked about
how the manipulation of the suitcase affected the investigation.
The district court rejected Officer Ordaz's assertion that he had
already decided to approach Hernandez before manipulating the
suitcase and that his suspicions were unaffected by the illegal
search.
The government also cites the Sixth Circuit's decision in
United States v. Flowal, 234 F.3d 932 (6th Cir. 2000). In Flowal,
DEA agents were informed that an airline passenger en route from
Los Angeles to Fort Wayne, Indiana, matched a drug-courier profile.
14
Id. at 934. The agents intercepted Flowal's luggage while he was
waiting for a connecting flight in Cincinnati. Id. The agents
shook the luggage to see if anything moved around, but they did not
discover anything suspicious. Id. In addition, a drug-sniffing
dog did not alert the agents to any drugs inside the luggage. Id.
Nevertheless, the agents approached Flowal and asked him for
consent to search his luggage, which he authorized. Id. Flowal
did not have a key to the luggage locks, so the officers had to
open the bag by alternative means. Id. Inside the luggage, the
officers found over five kilograms of cocaine. Id.
Flowal, citing Bond, claimed that the officers had violated
his Fourth Amendment rights when they shook and pushed on the
luggage to determine if there might be anything suspicious inside.
The Sixth Circuit disagreed and explained that
the search of Flowal's luggage was not
unconstitutional under Bond. The officers investi-
gated Flowal's luggage because he matched the drug
courier profile, not because they had felt
something suspicious in it. In other words, unlike
the agents in Bond, the officers in this case had a
reasonable belief that the luggage could contain
contraband before ever touching it. In fact,
neither the officers' prodding of the luggage nor
the drug-sniffing dog revealed anything suspicious,
hence the reason the officers approached Flowal and
obtained his consent to search the bags.
Flowal, 234 F.3d at 935. Flowal, however, is inapposite to
Hernandez's case. As we have already noted, in Hernandez's case
the district court found that Officer Ordaz decided to approach
15
Hernandez only after he had felt something suspicious in her
suitcase. There is no evidence that Officer Ordaz believed
Hernandez's suitcase contained drugs before he manipulated it.
IV. CONCLUSION
For the foregoing reasons, we hold that Hernandez's subsequent
consent to search her suitcase did not cure the Fourth Amendment
violation resulting from Officer Ordaz's prior manipulation of the
suitcase. The judgment of the district court is AFFIRMED.
16
EDITH H. JONES, dissenting:
The panel majority here concludes that Hernandez
voluntarily consented to the search of the black suitcase, but her
consent did not overcome the taint of the suitcase’s
unconstitutional investigative squeeze by Officer Ordaz. Applying
the exclusionary rule, they hold that evidence of 4 kilograms of
cocaine from the drug seizure must be suppressed. With due
respect, I dissent. I believe Hernandez’s consent was a product of
her free will and not of the exploitation of the unconstitutional
conduct.
The exclusionary rule’s primary purpose is to discourage
unconstitutional police misconduct. See, e.g., Illinois v. Krull,
480 U.S. 340, 347, 107 S.Ct. 1160, 1165 (1987). Thus, evidence may
be suppressed when it has been obtained directly or indirectly
through illegal police activity. Wong Sun v. United States, 371
U.S. 471, 484, 83 S.Ct. 407, 416 (1963). The exclusionary rule is
not, however, employed “when the nexus between the illegal police
activity and attainment of the evidence is sufficiently attenuated
so that the taint resulting from the misconduct is dissipated.”
United States v. Sheppard, 901 F.2d 1230, 1234 (5th Cir. 1990)
(citing Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417). When a
suspect voluntarily consents to a search that reveals the
incriminating evidence, this may, but does not necessarily,
17
overcome the taint of the illegal police activity. Brown v.
Illinois, 422 U.S. 590, 604-05, 95 S.Ct. 2254, 2261-62 (1975).
The majority opinion follows these authorities and
considers both the voluntariness of the suspect’s consent and
whether the consent represented an independent act of free will.
United States v. Chavez-Villareal, 3 F.3d 124, 127 (5th Cir. 1993).
Factors that bear on the latter issue, which the Supreme Court has
also characterized as whether the consent was based on exploitation
of illegality,1 include: the temporal proximity of the illegal
conduct and the consent, intervening circumstances, and
“particularly, the purpose and flagrancy of official misconduct.”
Rawlings v. Kentucky, 448 U.S. 98, 107-09, 100 S.Ct. 2556, 2562-64
(1980). (quoting Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62).
While the majority opinion finds Hernandez’s consent to
have been voluntary, it denies that her consent was an independent
act of free will based solely on the factors of close temporal
proximity with the bag squeeze, and no proof by the government of
intervening circumstances. The majority concede that the officer’s
conduct in squeezing Hernandez’s checked suitcase was not flagrant
(and did not even violate Fifth Circuit law at the time),2 but they
1
See Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417.
2
The United States conceded arguendo a Fourth Amendment
violation at oral argument, but it is far from certain that the
Supreme Court’s decision in Bond v. United States, 529 U.S. 334,
120 S.Ct. 1462 (2000), extends to the manipulation of the exterior
of luggage consigned to transportation companies’ baggage handling
operations. In this court, manipulation of suitcases delivered to
18
ignore the Supreme Court’s statement that this last circumstance is
“particularly” important. See Brown, 422 U.S. at 603-04, 95 S.Ct.
at 2261-62. In my view, the majority failed properly to balance
these three factors.
This case differs critically from other Fifth Circuit
cases in which the court concluded that consent was not the product
of a suspect’s free will. All of those cases involved prolonged
illegal detention of suspects pursuant to traffic stops. United
States v. Jones, 234 F.3d 234, 241 (5th Cir. 2000); United States
v. Dortch, 199 F.3d 193, 201 (5th Cir. 1999); United States v.
Chavez-Villareal, supra. In those cases, the suspects were not
free to leave the roadside; identification papers or drivers’
licenses had been retained by the law officers; and the suspects
had to be aware that they were under investigation for crimes other
than the minor traffic violations for which they were stopped. The
temporal proximity, indeed simultaneity, of the illegal detentions
and the suspects’ subsequent consents did not simply exist. As a
matter of law, we implied, it caused them to consent, for all
practical purposes, because the illegal detentions continued until
the baggage handling area (as opposed to those kept with the
passenger in an on-board overhead compartment), has been held
constitutional for some years. See United States v. Karman, 849
F.2d 928 (5th Cir. 1988).
19
they gave consent.3 In Chavez, the court pointed out the impact of
the coercive police detention conduct. Chavez, 3 F.3d at 127.
Here, however, temporal proximity did not function in the
same way, since Hernandez never knew her bag had been squeezed or
investigated. One of our cases makes precisely this point,
emphasizing that consent to search was effective where the suspect
who gave consent did not know of the prior police misconduct.
United States v. Richard, 994 F.2d 244, 252 (5th Cir. 1993). And
in any event, temporal proximity alone is not determinative of
whether the consent was a product of the suspect’s independent free
will. See Kelley, 981 F.2d at 1471.
Second, while Hernandez was not told that she was free to
leave or could refuse consent to search, she was not detained
illegally. The police did not hold onto her I.D. or her tickets.
There is no causal connection between her giving of consent and the
illegal conduct in squeezing the suitcase. As noted, illegal
detention is the critical occurrence in all of the cases in which
the exclusionary rule was ultimately applied.
Third, even the illegality of the detention and the
temporal proximity are not determinative where the police did not
3
It is true, of course, that an illegal detention alone does
not preclude a finding of voluntariness. See, e.g., United States
v. Kelley, 981 F.2d 1464, 1471 (5th Cir. 1993); see also United
States v. Navarro, 169 F.3d 228, 231 (5th Cir. 1999). In both
these cases, this court applied the Brown factors and held that the
consents to search purged the taint of any possible Fourth
Amendment violation. See also Rawlings v. Kentucky, supra.
20
engage in flagrant misconduct or exploit their violations. The
Supreme Court bears out this calculus in Rawlings v. Kentucky,
where the suspect confessed “after being in what was assumed to be
an illegal detention for forty-five minutes. Applying the
attenuation exception to the exclusionary rule, the Court
emphasized the informal nature of the detention.” See Sheppard,
901 F.2d at 1235, n.10 (summarizing Rawlings). The Court also
pointed out that the officers there appeared to be acting in good
faith and unaware that their conduct might violate the Fourth
Amendment. Rawlings, 448 U.S. at 110-111, 100 S.Ct. at 2564. The
Court concluded:
. . . . the conduct of the police here does not rise to the
level of conscious or flagrant misconduct requiring
prophylactic exclusion of petitioner’s statements.
Rawlings, id.
The majority concede that the officers’ conduct here was
hardly flagrant. On the contrary, they were almost surely
following then-applicable Fifth Circuit law. They were not trying
to “exploit” a Fourth Amendment violation when they questioned
Hernandez and obtained her consent to search the suitcase. This
“particularly” relevant factor should weigh heavily in favor of the
government’s position.
Finally, it seems that rather than there being no
intervening circumstances,4 the single circumstance that expressly
4
Among such intervening circumstances are the giving of Miranda
warnings, Brown v. Illinois, supra; and telling the suspect he
21
attenuates the illegal conduct from Hernandez’s consent is the
separateness of the two events. Unlike all the other cases where
this court has suppressed evidence, Hernandez’s consent was not
precipitated by illegal detention or her awareness of any illegal
conduct by the police. In no sense can it be concluded that her
free will was “overborne” by the officer’s previous conduct.
Likewise, this court held that consent to search obtained from a
person who was unaware of another person’s involuntary consent was
based on intervening circumstances. United States v. Richard,
supra.
As the ultimate inquiry for the attenuation exception is
whether the suspect consented as an independent act of free will,
I fail to see how the majority find otherwise. Applying the
exclusionary rule to overcome Hernandez’s consent makes no sense
here.
For these reasons, I would REVERSE the district court’s
judgment.
could refuse to consent, Kelley, supra.
22