United States v. Garcia

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 01-20640 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARISOL GARCIA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (H-00-CR-793-1)

March 29, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Marisol Garcia appeals her conviction for possession with

intent to distribute 500 grams or more of a mixture and substance

containing a detectable amount of cocaine, in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii). Garcia claims her consent, at a Houston, Texas, airport, to a search of her body, which

revealed approximately one kilogram of cocaine, was involuntary

because she was illegally detained in violation of the Fourth

Amendment, and there was no intervening break between this

violation and her subsequent consent. Garcia maintains also that

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. the six factors used to determine voluntariness weigh heavily in

favor of a finding of coerced consent. See United States v.

Olivier-Becerril, 861 F.2d 424, 426 (5th Cir. 1988) (stating six-

factor test used to evaluate voluntariness of consent).

“In reviewing the denial of the defendant’s motion to

suppress, we review the district court’s factual findings for clear

error and its legal conclusions de novo.” United States v. Green,

272 F.3d 748, 752 (5th Cir. 2001). “‘We view the evidence in the

light most favorable to the party that prevailed in the district

court.’” Id. (quoting United States v. Hunt, 253 F.3d 227, 230

(5th Cir. 2001)). “The voluntariness of consent is ‘a question of

fact to be determined from the totality of all the circumstances.’

We will not reverse the district court’s finding that consent was

voluntary unless it is clearly erroneous.” United States v.

Kelley, 981 F.2d 1464, 1470 (5th Cir.) (internal citations omitted;

quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)), cert.

denied, 508 U.S. 944 (1993).

The district court determined the initial encounter between

Garcia and the DEA Agents was consensual. See United States v.

Cooper, 43 F.3d 140, 145 (5th Cir. 1995) (officer may generally

approach any person to ask for identification or ask questions, as

long as officer does not convey that compliance is required). A

consensual encounter does not amount to a seizure under the Fourth

Amendment. Id. Garcia voluntarily engaged in conversation with

the Agents at their request. At no point during the encounter did

she inform them she did not wish to speak to them. There was no

violation of Garcia’s Fourth Amendment rights.

2 In addition, Garcia’s consent to the search was voluntary. As

discussed, Garcia was not in custody during her encounter with the

Agents; she voluntarily stopped and talked to them and fully

cooperated with them. Garcia was aware of her right to refuse to

consent because she had twice refused it before ultimately

consenting. Although the facts may slightly favor a finding of

coercion with regard to the Agents’ discussion of the possibility

of obtaining a warrant, and although Garcia knew that incriminating

evidence would be found in a search, neither factor is dispositive.

See United States v. Tompkins, 130 F.3d 117, 121-123 (1997), cert.

denied, 523 U.S. 1036 (1998).

In the light of the entire record, the district court’s

decision is not clearly erroneous. Therefore, the motion to

suppress was properly denied.

AFFIRMED