United States v. Torres-Borunda
269 F. App'x 431
March 11, 2008 · Docket 06-51506
Headnotes
Generated summaries- Headnote 1
The court held that the Customs agent’s obtaining of Torres‑Borunda’s consent to search his vehicle satisfied the consent exception, making the subsequent discovery of marijuana admissible.
- Headnote 2
The district court’s finding that Torres‑Borunda’s consent was voluntary satisfied the government’s evidentiary burden under controlling precedent.
- Headnote 3
The court applied the totality‑of‑the‑circumstances analysis to determine that Torres‑Borunda’s consent was not the result of coercion.
- Headnote 4
The opinion listed these factors in evaluating Torres‑Borunda’s consent, noting that each must be weighed in the totality of circumstances.
- Headnote 5
The court emphasized that the factors are not exclusive determinants and must be considered together.
- Headnote 6
The appellate court affirmed the district court’s determination that Torres‑Borunda’s consent was voluntary because the finding met the plausibility standard.
- Headnote 7
The opinion distinguished the de novo review of legal issues from the clear‑error review of factual determinations.
- Headnote 8
The court applied this principle when assessing the testimony supporting the district court’s finding of voluntary consent.
- Headnote 9
The court cited Bengivenga to conclude that Torres‑Borunda’s stop was investigatory, not an arrest, despite the temporary retention of his documents.
- Headnote 10
The deputy’s retention of Torres‑Borunda’s documents was deemed lawful and not coercive, supporting the validity of the consent obtained.
- Headnote 11
Although Torres‑Borunda was not told he could refuse, the court held that such notice is unnecessary to establish voluntary consent, citing Schneckloth.
- Headnote 12
Testimony that Torres‑Borunda was cooperative was considered a factor supporting the district court’s conclusion of voluntary consent.
- Headnote 13
The court affirmed that consent searches do not require a warrant, relying on established Fourth Amendment jurisprudence.
- Headnote 14
The burden rests on the prosecution to show that consent was voluntary and not induced by duress.
- Headnote 15
The appellate court applied the totality‑of‑circumstances test to evaluate the suspect’s consent.
- Headnote 16
The opinion listed six factors that together inform the totality‑of‑circumstances analysis of consent.
- Headnote 17
The court emphasized that each factor is relevant but none alone determines voluntariness.
- Headnote 18
The appellate court applied the clear‑error standard and found the district court’s finding plausible, so it was affirmed.
- Headnote 19
The opinion distinguished the appellate standard for legal issues from that for factual findings.
- Headnote 20
This evidentiary rule guided the court’s assessment of the record presented at the suppression hearing.
- Headnote 21
The court held that the Deputy’s retention of Torres’s documents was lawful and did not taint the consent.
- Headnote 22
The opinion applied this rule to determine that Torres’s detention was investigatory, not an arrest.
- Headnote 23
The court contrasted the investigatory stop with the definition of arrest for Fourth Amendment analysis.
- Headnote 24
Citing Schneckloth v. Bustamante, the court held that lack of warning does not itself invalidate voluntary consent.
- Headnote 25
Testimony indicated Torres was cooperative, supporting the government’s position on voluntariness.
- Headnote 26
The court observed that no coercive methods were used during the encounter, weighing toward voluntariness.
- Headnote 27
Evidence of Torres’s schooling and prior police experience was considered a favorable factor for the government.
- Headnote 28
The court noted that the concealed marijuana suggested Torres did not expect discovery, supporting voluntariness.
- Headnote 29
The court cites United States v. Tompkins, holding that consent searches fall within a recognized category that does not require a judicial warrant.
- Headnote 30
In this case the district court relied on Tompkins, which places the burden on the government to show consent was voluntary by the more likely than not standard.
- Headnote 31
The opinion invokes United States v. Shabazz, emphasizing that courts must examine all surrounding facts to determine if consent was the product of free will.
- Headnote 32
The court lists these factors from Shabazz and applies them to the facts, noting that they are considered collectively rather than in isolation.
- Headnote 33
The opinion stresses that Shabazz makes clear that each factor is weighed together and none alone controls the inquiry.
- Headnote 34
Citing United States v. Jacquinot, the court holds that appellate review of the district court’s consent finding is limited to determining whether the conclusion was plausible.
- Headnote 35
The opinion notes that, unlike factual determinations, legal issues receive a fresh, independent examination according to Jacquinot.
- Headnote 36
The court relies on Jacquinot to affirm that the appellate record is considered from the perspective of the prevailing side at the hearing.
- Headnote 37
The opinion cites United States v. Brigham, holding that retaining Torres’s documents while the deputy questioned him was a permissible investigatory practice.
- Headnote 38
The court applies United States v. Bengivenga’s rule that a temporary detention without restraint on freedom to depart does not constitute arrest.
- Headnote 39
The opinion invokes United States v. Raborn to define the point at which a detention escalates to an arrest.
- Headnote 40
Citing Schneckloth v. Bustamante, the court holds that the failure to advise Torres of his right to refuse does not automatically render the consent involuntary.
- Headnote 41
The court notes that consent searches fall within a well‑established exemption to the warrant requirement, allowing officers to search without a warrant when consent is obtained.
- Headnote 42
To validate a consent search, the prosecution must show that the defendant’s consent was not obtained through duress or coercive tactics, meeting the preponderance standard.
- Headnote 43
The court treats voluntariness as a factual inquiry, requiring consideration of all surrounding facts to determine if the consent was given of the defendant’s own free will.
- Headnote 44
In assessing whether consent was voluntary, courts weigh the defendant’s custody, any coercive tactics, cooperation, knowledge of the right to decline, personal characteristics, and expectations regarding evidence.
- Headnote 45
The court emphasizes that the presence or absence of any one factor does not alone determine whether consent was voluntary; the totality of circumstances governs the analysis.
- Headnote 46
On appellate review, the trial court’s factual determinations are upheld unless they are implausible when the whole record is considered, applying the clear‑error standard.
- Headnote 47
The appellate court examines the lower court’s legal interpretations without deference, unlike factual findings which receive clear‑error review.
- Headnote 48
When evaluating the suppression hearing record, the court adopts the most favorable construction for the party that succeeded at the hearing.
- Headnote 49
The court holds that a temporary traffic stop is not an arrest when the circumstances indicate the driver remains free to depart after the officer’s inquiry.
- Headnote 50
The court defines arrest as a situation where a person’s freedom of movement is restrained to a degree that a reasonable person would not feel free to depart.
- Headnote 51
The court finds that retaining identification documents for the duration of a brief stop does not violate the Fourth Amendment, provided the stop is lawful.
- Headnote 52
The court cites Schneckloth v. Bustamante, holding that a suspect’s knowledge of the ability to decline consent is unnecessary for a consent search to be valid.
- Headnote 53
The court considers the defendant’s cooperation with officers, his educational background, intelligence, and the belief that no incriminating evidence would be discovered as factors supporting voluntariness.
Opinion
Having conditionally pleaded guilty to possession with intent to distribute marijuana, Jesus Maria Torres-Borunda was sentenced to 37 months’ imprisonment. He maintains his consenting to the search of his vehicle was involuntary. AFFIRMED.
I.
Torres’ vehicle was stopped by a Sheriffs Deputy for following too closely behind a tractor-trailer, in violation of Texas law. Torres indicated to the Deputy he did not understand English, but he responded to the request to produce a driver’s license and proof of insurance. The license was from Mexico; the insurance had been issued the previous day. The vehicle had current license plates from Mexico.
The Deputy noticed no accumulation of paperwork in the vehicle and a single key on Torres’ key chain. Both were indicative, according to the Deputy, of a drug trafficker. As a result, the Deputy became suspicious and wanted to search the vehicle.
Not being fluent in Spanish, the Deputy returned to his vehicle and, using his cell phone, contacted a United States Customs Agent who had previously assisted him with translation. The Deputy asked Torres, who was seated next to the Deputy in his vehicle, to speak with the Agent.
The Agent asked Torres about: the identity of the registered owner of the vehicle; where his trip originated; and his destination. Torres replied: the vehicle was registered to him; he was from Mexico; he had crossed into the United States at El Paso the previous day and spent the night there; and, he was traveling to Odessa, Texas, to purchase a water-well pump.
After the Agent conveyed Torres’ responses to the Deputy, he requested the Agent’s seeking consent from Torres to search his vehicle. The Agent first asked Torres whether he was transporting drugs, firearms, or large amounts of currency. Torres answered in the negative. Without informing Torres of his right to refuse consent, the Agent then asked for, and received, consent to search the vehicle.
Upon doing so, the Deputy discovered a loose rear-quarter panel on the passenger side. He lifted the panel, shined a flashlight inside, and discovered numerous bricks of marijuana (totaling approximately 300 pounds). The Deputy estimated: three to five minutes elapsed between stopping Torres vehicle and the call to the Agent; 15 minutes, between the stop and his discovering marijuana.
Torres moved to suppress the marijuana. At a hearing on the motion, the Deputy, the Agent, and Torres testified. In a very detailed opinion, the district court ruled: although the Deputy lacked probable cause for the search, Torres voluntarily consented to it. Accordingly, the suppression motion was denied.
II.
Torres’ guilty plea was conditioned on his being able to appeal the suppression ruling. He maintains his consent was given involuntarily, asserting he was coerced into giving consent by: the Deputy’s retaining his driver’s license and insurance document; being placed in the patrol car; and answering the Agent’s questions on the cell phone rather than face-to-face. (Torres does not contest the district court’s ruling the consent was not tainted by an illegal detention.)
In considering the denial of a suppression motion, factual findings are reviewed for clear error; legal conclusions, de novo. E. g. United States v. Jacquinot, E. g. 258 F.3d 423, 427 (5th Cir.2001). A factual finding is not clearly erroneous if it is plausible when reviewed in the light of the entire record. Id. Evidence presented at the suppression hearing must be viewed in the light most favorable to the prevailing party. Id.
“A search conducted pursuant to consent is one of the well-established exceptions to the Fourth Amendment’s warrant requirement.” United States v. Tompkins, 130 F.3d 117, 121 (5th Cir.1997) (citation omitted). The Government must prove by a preponderance of the evidence that the consent was freely and voluntarily given; that it was not the result of coercion or duress. Id. “The voluntariness of consent is a question of fact to be determined from the totality of all the circumstances.” United States v. Shabazz, 993 F. 2d 431, 438 (5th Cir.1993) (emphasis added) (citation and internal quotation marks omitted). In evaluating such voluntariness, six factors are considered:
(1) the voluntariness of the defendant’s custodial status; (2) the presence of coercive [law enforcement] procedures; (3) the extent and level of the defendant’s cooperation with [law enforcement]; (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.
Id. (citation and internal quotation marks omitted). No one factor is dispositive. Id.
Because voluntariness vel non is a factual issue, the finding is reviewed only for clear error. Tompkins, 130 F.3d at 120. Where, as here, the district court bases a finding of consent on live testimony at a suppression hearing, the clearly-erroneous standard is even stronger, because the court had an opportunity to observe the witnesses’ demeanor. Shabazz, 993 F.2d at 438 (citation omitted).
The Deputy properly obtained Torres’ driver’s license and insurance document and questioned him about his itinerary and destination. See United States v. Brigham,, 382 F.3d 500, 507-10 (5th Cir.2004) (en banc). The documents were retained by the Deputy while he directed Torres to the Deputy’s vehicle so the Agent could question him by telephone. During that questioning, Torres sat next to the Deputy. He testified at the suppression hearing that, as a result, Torres had been detained.
A brief investigatory stop does not constitute an arrest if a reasonable person in the defendant’s position would believe that he could leave once the reason for the detention has been satisfied. See United States v. Bengivenga, 845 F.2d 593, 600 (5th Cir.1988) (en banc). An arrest occurs, however, when “under the totality of the circumstances, a reasonable person would have thought he was not free to leave”. United States v. Raborn, 872 F.2d 589, 593 (5th Cir.1989) (citation and internal quotation marks omitted). Torres could not leave without his driver’s license and insurance document. The Deputy testified that, not only was Torres being detained, he would not have been allowed to leave before his vehicle was searched. Torres’ detention, therefore, was involuntary, a factor weighing against the Government.
Testimony at the suppression hearing does not show coercive methods were used to obtain consent. Indeed, the seizure of Torres’ documents was permissible under the Fourth Amendment. See Brigham, 382 F.3d at 507-08. The Agent’s questioning was similarly permissible, and only 15 minutes elapsed between the stop and marijuana discovery. Torres’ being in the Deputy’s vehicle to speak to the Agent, while perhaps relevant to the voluntariness of his confinement, appears to have been a matter of convenience, not of coercion. The lack of coercion is a factor weighing in favor of the Government.
The Deputy and Agent testified Torres was cooperative. This factor weighs in favor of the Government.
Torres was not informed of his right to refuse consent. Awareness of the right, however, is not required to establish voluntary consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
The Agent testified Torres appeared to be educated and understand the questions asked him. Likewise, Torres testified he was educated, reasonably intelligent, and understood the Agent was requesting consent to search the vehicle. (The presentence investigation report states Torres completed one year of preparatory school in Mexico and that he worked in Mexico as a police officer for 20 years.) His intelligence is a factor that weighs in favor of the Government.
The Deputy discovered the marijuana after noticing the loose rear-quarter panel on the passenger side. It can be inferred that Torres did not believe the Deputy would discover the hidden contraband. See, e.g., United States v. Three Hundred Sixty-Nine Thousand Nine Hundred Eighty Dollars, 214 Fed.Appx. 432, 434 (5th Cir.2007) (unpublished) (finding sixth factor in favor of Government because contraband was concealed in a compartment under the rear seat). This sixth, and final, factor weighs in favor of the Government.
The district court’s factual finding that Torres’ consent was voluntary is plausible in the light of the entire record. Therefore, the finding was not clearly erroneous. As a result, the district court did not err in denying the suppression motion.
III.
For the foregoing reasons, the judgment is AFFIRMED.
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.