     Case: 14-30439      Document: 00513081974         Page: 1    Date Filed: 06/17/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-30439                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                   June 17, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

MICHAEL ROBERTSON,

              Defendant - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:13-CR-108


Before WIENER, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       Michael Robertson was indicted on one charge of being a felon in
possession of a firearm and one charge of possession of marijuana. He filed a
motion to suppress evidence, arguing that he did not validly consent to the
search of his vehicle that led to the discovery of two firearms and marijuana.
The district court granted the motion; the government appealed. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 14-30439
                          FACTUAL BACKGROUND
      Baton Rouge police officer Aaron Spelying stopped Robertson for
speeding and asked him to step out of the car. Spelying testified that after
Robertson got out of his vehicle, he detected the odor of marijuana both on
Robertson and from within the vehicle. When Spelying asked for Robertson’s
license, Robertson explained that he did not have it because it had been
suspended. Spelying ran Robertson’s and his passenger’s names through a
database that confirmed Robertson’s license was suspended and that both men
were convicted felons. Spelying testified that he then intended to gain consent
to search the vehicle. He told Robertson he was not going to give him a ticket
and returned the vehicle’s rental documentation to him. At the suppression
hearing, Spelying claimed that he decided not to ticket Robertson in an effort
to obtain his voluntary consent to a search of his vehicle.
      Also at the suppression hearing, Spelying testified that as Robertson
turned to leave, the officer asked him, “before you go, we have problems with
people smuggling things on the interstate: guns, drugs, weapons, you know,
anything of that nature. Can I search your vehicle before you go?” Robertson
agreed to the search. Spelying found a partially smoked marijuana cigar and
two handguns hidden in the car’s center console. Robertson and his passenger
each claimed one of the guns. Spelying arrested both men.
                                 DISCUSSION
      This court reviews a district court’s factual findings on a motion to
suppress for clear error and its legal conclusions de novo. United States v.
Iraheta, 764 F.3d 455, 460 (5th Cir. 2014). The evidence is considered in the
light most favorable to the prevailing party. Id. A district court’s finding on
whether consent to a search is voluntary is a question of fact, which we review
for clear error. United States v. Dilley, 480 F.3d 747, 749 (5th Cir. 2007).
“Factual findings are clearly erroneous only if a review of the record leaves this
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                                  No. 14-30439
court with a definite and firm conviction that a mistake has been committed.”
United States v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009) (citation and internal
quotation marks omitted).      “Where the judge bases a finding [regarding]
consent on the oral testimony at a suppression hearing, the clearly erroneous
standard is particularly strong since the judge had the opportunity to observe
the demeanor of the witnesses.” United States v. Solis, 299 F.3d 420, 436 (5th
Cir. 2002) (citation and internal quotation marks omitted).
       We determine the voluntariness of consent by considering six factors,
giving none controlling weight but instead examining the totality of the
circumstances:
       (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.

United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir. 1988)
(citation omitted).
       Applying this analysis, the district court held that a reasonable person
would not have felt free to leave and would have felt compelled to agree to the
search. Regarding the first, second, and sixth factors, the court found several
facts weighed against the voluntariness of consent. The court determined that
the officer had engaged in a coercive tactic when he twice stated “before you
go” as part of his request for consent to search the vehicle. The court also noted
that Spelying never informed Robertson that he was free to leave. Finally,
because the contraband was hidden, the court found that Robertson likely
knew of the contraband and therefore would have known the police might find
it.



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                                 No. 14-30439
      On the other hand, the district court found that Robertson seemed to be
cooperating with police, and thus the third factor weighed in favor of
voluntariness. Last, the court found there was no evidence regarding whether
Robertson knew he could withhold consent, nor was there evidence of his
education or intelligence.   Therefore, it found factors four and five were
neutral. Relying on the totality of the factors, the district court held that
Robertson’s consent was not voluntary.
      Because we are not firmly convinced that a mistake was made, the
district court’s findings of fact are not clearly erroneous. See Hearn, 563 F.3d
at 101. The government presents case law in which consent to search was
upheld even though arguably similar language was used by law enforcement,
but the review of fact-finding very much depends on the precise facts in a case
and the discretion of the district court in weighing those facts. “A factual
finding is not clearly erroneous if it is plausible in light of the record as a
whole.” United States v. Zavala, 541 F.3d 562, 574 (5th Cir. 2008) (citation
and internal quotation marks omitted).           Under the totality of the
circumstances here, it is plausible that Robertson did not believe he was free
to leave and did not voluntarily consent to the search.
      AFFIRMED.




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