IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-31366 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERBERT JOHNSON, JR.,
Defendant-Appellant.
-------------------- Appeal from the United States District Court for the Eastern District of Louisiana (00-CR-131-1-F) -------------------- June 18, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Herbert Johnson, Jr. was indicted for
possession of a firearm as a convicted felon and for possession
with intent to distribute less than 100 grams of heroin in
violation of 21 U.S.C. § 841(a)(1). Johnson filed a motion to
suppress evidence of the gun and the narcotics, which were found
during a search of his room in his mother’s house after she
consented to a search. Johnson insists that his Fourth Amendment
rights were violated when he was stopped while driving his car and
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. detained at the site. As a result, argues Johnson, the consent
subsequently given to the two DEA agents by his mother, Vivian
Johnson, to search “his” room in her home —— even if knowing and
voluntary, which he contests —— was the product of the unlawful
stop. Consequently, he asserts, the evidence found in his room was
fruit of the poisonous tree and thus inadmissible. Disagreeing
with Johnson for the reasons set forth below, we affirm the
district court’s denial of his suppression motion and also affirm
his conviction and sentence.
“The proponent of a motion to suppress has the burden of
proving, by a preponderance of evidence, that the evidence in
question was obtained in violation of his Fourth Amendment rights.”
United States v. Kelley, 981 F.2d 1464, 1467 (5th Cir.
1993)(citation omitted). In considering a ruling on a motion to
suppress, we review questions of law de novo and factual findings
for clear error. United States v. Dortch, 199 F.3d 193, 197 (5th
Cir. 1999), corrected on denial of rehearing, 203 F.3d 883 (5th
Cir. 2000). The evidence is viewed in the light most favorable to
the party that prevailed in the district court. Id.
The district court was vocally critical of the stop of
Johnson’s car and his detention there by the police, agreeing with
Johnson that it violated the Fourth Amendment. Not surprisingly,
the government disagrees. For purposes of our consideration today,
however, we need not resolve this issue; instead we assume without
granting that the initial stop and detention was improper, as held
by the district court. The issue before us is thus narrowed to the
2 question whether the search of Johnson’s room that actually turned
up the evidence —— the gun and the narcotics —— was tainted by the
stop, making the resulting evidence fruit of the poisonous tree as
he contends or, as the government contends and the district court
found, the product of a search made lawful by informed consent
sufficiently attenuated from the assumedly unlawful stop and
detention of Johnson, thereby avoiding suppression.
“[V]oluntary consent can validate a search even when the
consent to search is preceded by a Fourth Amendment violation.”
United States v. Kelley, 981 F.2d at 1470. We evaluate consent
given after a Fourth Amendment violation by making a two-pronged
inquiry: (1) whether the consent was voluntarily given; and (2)
whether the consent was an independent act of free will. United
States v. Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir. 1993). “The
first prong focuses on coercion, the second on causal connection
with the constitutional violation.” Id.
We consider six factors when evaluating the voluntariness of
consent: (1) The voluntariness of defendant’s custodial status;
(2) the presence of coercive police procedures; (3) the extent and
level of cooperation with the police; (4) the defendant’s awareness
of the 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. United States v. Tompkins,
130 F.3d 117, 121 (5th Cir. 1997). No single factor is
dispositive; and we must determine the voluntariness of consent
from the totality of the circumstances. Id. When the trial
3 court’s finding of consent is based on oral testimony at a
suppression hearing, as it was here, our clear-error standard of
review of factual findings is “particularly strong since the judge
had the opportunity to observe the demeanor of the witnesses.”
United States v. Gonzales, 79 F.3d 413, 421 (5th Cir.
1996)(citation and internal quotation marks omitted).
Mindful at all times that in this case the person suffering
the unlawful seizure was a different person than —— and was
geographically remote from —— the person giving the consent to
search, our careful review of the record of the extensive
suppression hearing in the instant case satisfies us that the six
Tompkins factors for determining voluntariness support the district
court’s conclusion on that aspect. Both Vivian Johnson and a
neighbor who at Mrs. Johnson’s request was present at all relevant
times, testified in detail regarding the discrete occurrences
between the time when two agents appeared at the Johnson house and
the time, following a reading and explanation of the consent form
by one agent, when Mrs. Johnson signed that form. Mrs. Johnson
knew that her son was in custody, but understood that she was not;
her version of the events and that of her neighbor’s eschew the
presence of any coercive procedures by the police —— on the
contrary only two agents were present and they were considerate and
solicitous; Mrs. Johnson was cooperative with the agents; she was
aware of her right to refuse consent, as demonstrated both by the
wording of the form that one agent read to her and by her and the
neighbor’s discussion and weighing of the warrant option; the
4 record reflects nothing about her education, but her testimony
demonstrates that Mrs. Johnson was clearly of average or higher
intelligence; and she expressed confidence that nothing would be
found in the search that would incriminate her. All of this amply
supports the district court’s conclusion that Mrs. Johnson’s
consent was given freely and knowingly, and was not the product of
police intimidation or duress. We agree with the district court
that Mrs. Johnson’s consent to search was free, voluntary, and
knowingly given.
Nevertheless, when there has been an unlawful detention, the
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-31366 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERBERT JOHNSON, JR.,
Defendant-Appellant.
-------------------- Appeal from the United States District Court for the Eastern District of Louisiana (00-CR-131-1-F) -------------------- June 18, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Herbert Johnson, Jr. was indicted for
possession of a firearm as a convicted felon and for possession
with intent to distribute less than 100 grams of heroin in
violation of 21 U.S.C. § 841(a)(1). Johnson filed a motion to
suppress evidence of the gun and the narcotics, which were found
during a search of his room in his mother’s house after she
consented to a search. Johnson insists that his Fourth Amendment
rights were violated when he was stopped while driving his car and
* 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. detained at the site. As a result, argues Johnson, the consent
subsequently given to the two DEA agents by his mother, Vivian
Johnson, to search “his” room in her home —— even if knowing and
voluntary, which he contests —— was the product of the unlawful
stop. Consequently, he asserts, the evidence found in his room was
fruit of the poisonous tree and thus inadmissible. Disagreeing
with Johnson for the reasons set forth below, we affirm the
district court’s denial of his suppression motion and also affirm
his conviction and sentence.
“The proponent of a motion to suppress has the burden of
proving, by a preponderance of evidence, that the evidence in
question was obtained in violation of his Fourth Amendment rights.”
United States v. Kelley, 981 F.2d 1464, 1467 (5th Cir.
1993)(citation omitted). In considering a ruling on a motion to
suppress, we review questions of law de novo and factual findings
for clear error. United States v. Dortch, 199 F.3d 193, 197 (5th
Cir. 1999), corrected on denial of rehearing, 203 F.3d 883 (5th
Cir. 2000). The evidence is viewed in the light most favorable to
the party that prevailed in the district court. Id.
The district court was vocally critical of the stop of
Johnson’s car and his detention there by the police, agreeing with
Johnson that it violated the Fourth Amendment. Not surprisingly,
the government disagrees. For purposes of our consideration today,
however, we need not resolve this issue; instead we assume without
granting that the initial stop and detention was improper, as held
by the district court. The issue before us is thus narrowed to the
2 question whether the search of Johnson’s room that actually turned
up the evidence —— the gun and the narcotics —— was tainted by the
stop, making the resulting evidence fruit of the poisonous tree as
he contends or, as the government contends and the district court
found, the product of a search made lawful by informed consent
sufficiently attenuated from the assumedly unlawful stop and
detention of Johnson, thereby avoiding suppression.
“[V]oluntary consent can validate a search even when the
consent to search is preceded by a Fourth Amendment violation.”
United States v. Kelley, 981 F.2d at 1470. We evaluate consent
given after a Fourth Amendment violation by making a two-pronged
inquiry: (1) whether the consent was voluntarily given; and (2)
whether the consent was an independent act of free will. United
States v. Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir. 1993). “The
first prong focuses on coercion, the second on causal connection
with the constitutional violation.” Id.
We consider six factors when evaluating the voluntariness of
consent: (1) The voluntariness of defendant’s custodial status;
(2) the presence of coercive police procedures; (3) the extent and
level of cooperation with the police; (4) the defendant’s awareness
of the 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. United States v. Tompkins,
130 F.3d 117, 121 (5th Cir. 1997). No single factor is
dispositive; and we must determine the voluntariness of consent
from the totality of the circumstances. Id. When the trial
3 court’s finding of consent is based on oral testimony at a
suppression hearing, as it was here, our clear-error standard of
review of factual findings is “particularly strong since the judge
had the opportunity to observe the demeanor of the witnesses.”
United States v. Gonzales, 79 F.3d 413, 421 (5th Cir.
1996)(citation and internal quotation marks omitted).
Mindful at all times that in this case the person suffering
the unlawful seizure was a different person than —— and was
geographically remote from —— the person giving the consent to
search, our careful review of the record of the extensive
suppression hearing in the instant case satisfies us that the six
Tompkins factors for determining voluntariness support the district
court’s conclusion on that aspect. Both Vivian Johnson and a
neighbor who at Mrs. Johnson’s request was present at all relevant
times, testified in detail regarding the discrete occurrences
between the time when two agents appeared at the Johnson house and
the time, following a reading and explanation of the consent form
by one agent, when Mrs. Johnson signed that form. Mrs. Johnson
knew that her son was in custody, but understood that she was not;
her version of the events and that of her neighbor’s eschew the
presence of any coercive procedures by the police —— on the
contrary only two agents were present and they were considerate and
solicitous; Mrs. Johnson was cooperative with the agents; she was
aware of her right to refuse consent, as demonstrated both by the
wording of the form that one agent read to her and by her and the
neighbor’s discussion and weighing of the warrant option; the
4 record reflects nothing about her education, but her testimony
demonstrates that Mrs. Johnson was clearly of average or higher
intelligence; and she expressed confidence that nothing would be
found in the search that would incriminate her. All of this amply
supports the district court’s conclusion that Mrs. Johnson’s
consent was given freely and knowingly, and was not the product of
police intimidation or duress. We agree with the district court
that Mrs. Johnson’s consent to search was free, voluntary, and
knowingly given.
Nevertheless, when there has been an unlawful detention, the
suppression court must consider three additional factors to
evaluate the validity of a consent to search: (1) The temporal
proximity of the illegal conduct and the consent; (2) the presence
of intervening circumstances; and (3) the purpose and flagrancy of
the initial misconduct. Brown v. Illinois, 422 U.S. 590, 603-04
(1975); United States v. Jones, 234 F.3d 234, 243 (5th Cir. 2000).
Again, we must temper and adjust our Brown analysis in the instant
case with constant awareness that the person who gave the consent
is Mrs. Johnson, not the person who was unlawfully detained, her
son, Herbert Johnson, Jr., the Defendant-Appellant.
As for temporal separation, there is no direct testimony on
precisely how much time elapsed between the stop and detention of
Johnson and the giving of consent by his mother; however,
extrapolation of facts in the record supports the government’s
position that 20 or 30 minutes elapsed between the initial stop and
the consent. Particularly when considered in light of Johnson’s
5 continuing detention, the temporal separation between the car stop
and the agents’ receipt of consent has to be classified as “close.”
Close proximity, in and of itself, is not dispositive, however.
See United States v. Kelley, 981 F.2d at 1471. When, as here,
there is no evidence of coercive police tactics, and the person
from whom consent is sought is adequately informed of the right to
refuse consent, these factors constitute intervening circumstances
sufficient to purge the taint of an unreasonable detention. Id. at
1471-72. As in Kelley, there is no indication here that police
used coercive tactics that would lead Mrs. Johnson to believe that
she could not refuse consent. To the contrary, both she and her
neighbor testified that the agents explained the form and read it
to her before she signed it; and both acknowledged that the form
states that she could refuse to consent. Not only does the record
reflect a total absence of coercive tactics, it contains
affirmative evidence that the agents were patient, polite, and
accommodating to Mrs. Johnson’s nervousness and concerns. No
weapons were ever drawn, much less pointed; there was no badgering
or raising of voices; there was no hint of threats for refusing to
consent. Neither did Mrs. Johnson view her son in custody or know
whether other law enforcement agents were in the vicinity of her
house.
The record supports the determination of the district court
that there were sufficient intervening circumstances to cure the
Fourth Amendment violation that the district court attributed to
Johnson’s initial stop and detention, particularly in light of the
6 fact that it was not Johnson but his mother —— located, as she was,
in her home several miles away from the point of detention —— who
granted the consent to search and who limited it to Johnson’s room
rather than the entire premises. Moreover, as sole owner of the
house and of some of the personal effects in the room occupied by
her son at her sufferance, Mrs. Johnson clearly was the appropriate
person to grant or deny consent to search.
In sum, we are satisfied that Vivian Johnson’s consent to
search was voluntarily given and that it was sufficiently
attenuated from the stop and detention that presumably violated the
Fourth Amendment rights of her grown son to cure any taint that
such constitutional defect might otherwise have imparted to her
consent. See United States v. Kelley, 981 F.2d at 1471-72; Brown
v. Illinois, 422 U.S. 590, 603-04 (1975). Accordingly, we hold
that the motion to suppress was properly denied and that Johnson’s
conviction on his plea of guilty should be and therefore is, in all
respects,
AFFIRMED.