     Case: 16-31045      Document: 00514129298         Page: 1    Date Filed: 08/23/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals

                                      No. 16-31045
                                                                                Fifth Circuit

                                                                              FILED
                                                                        August 23, 2017

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellant

v.

LARRY WALKER,

              Defendant - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:15-CR-138


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:*
       The government appeals the district court’s partial grant of a motion to
suppress evidence as the fruit of an illegal search of a vehicle on the basis that
the consent to search was invalid. Because we conclude that the district court
did not clearly err in finding, after an evidentiary hearing, that Larry Walker’s
consent to search was not voluntary, the partial grant of the motion to suppress
evidence 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 16-31045
                    FACTS AND PROCEDURAL HISTORY
       On September 2, 2014, Sergeant Donald Dawsey, who was assigned to
the narcotics criminal patrol unit, was patrolling Interstate 10 in Baton Rouge.
Dawsey was parked in the median around 10 p.m. when he observed a silver
Chrysler 300 pass his location traveling eastbound with a tinted plexiglass
license plate cover that he apparently mistakenly believed was in violation of
Louisiana Revised Statute § 32:53. 1 Dawsey stopped the vehicle and, as he
approached the passenger’s side, he said he noticed one or two screwdrivers in
the driver’s door console.
       The three occupants of the car were Larry Walker, the backseat
passenger, Walter Glenn, the driver, and Thomas James, the front passenger.
Glenn provided his driver’s license and proof of insurance, and Dawsey asked
him to step to the rear of the car so he could show him why he stopped them.
Dawsey pointed out the license plate cover. Glenn informed Dawsey that
Walker had rented the car and that the license plate cover was attached to the
car when it was rented. Glenn also offered to remove the cover, to which
Dawsey replied, “that’s gonna be up to you.” Upon Dawsey’s inquiry into the
trio’s travel history, Glenn said the men were returning from a Labor Day
family cookout in Beaumont, 2 Texas, after driving from Connecticut to Texas
the prior week. Glenn said that Walker is his cousin and they both lived in
Connecticut, while James is his uncle and lived in South Carolina but was
planning to meet up with his wife in New Jersey. He also said the car was due
back to the rental agency on September 5, 2014.
       Dawsey then returned to the passenger side of the vehicle and asked
Walker for the rental agreement. Walker also told Dawsey that he rented the


       1 Louisiana Revised Statute § 32:53 does not make it illegal to have a tinted license
plate cover.
       2 The defendants pronounced it “Bewmont” or “Boomont.”

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                                  No. 16-31045
vehicle the prior week in Connecticut and that it was due back on September
5, 2014. Walker said that he had moved to Orlando, but had flown back to
Connecticut a few weeks earlier for a visit before the group decided to drive to
Beaumont, Texas to visit family members. He said they had also stopped in
Houston.     The rental paperwork verified that Walker currently lived in
Orlando and that the car was rented in Connecticut on August 22, 2014.
      Dawsey returned to the rear of the vehicle and resumed questioning
Glenn about where Walker was from and how he traveled to Connecticut.
Glenn said Walker was from Connecticut, but had moved to Florida, and that
he had driven from Florida to Connecticut. Dawsey asked Glenn what kind of
car Walker had and Glenn said he had a Range Rover. Glenn did not say
Walker drove a Range Rover to Connecticut.          Dawsey then told Glenn to
remain where he was and said he was going to “run all the stuff and make sure
everything is straight.” Instead of running any of the information, Dawsey
returned to his police cruiser and called for backup officers to assist in a search
of the vehicle.
      About twelve minutes after initiating the stop, Dawsey exited his
cruiser, told Glenn he was still running the information and asked additional
questions about the men’s trip and the specific day of the family cookout.
Glenn said that he and Walker both drove on the trip to Beaumont, that they
went to Houston to do some shopping earlier that day – referencing visible
shopping bags in the vehicle, then returned to Beaumont and that he drove
from Beaumont to Baton Rouge. He also reiterated that the cookout was on
Labor Day. Dawsey responded that “we’ve gotta big problem people going this
way from Houston with you know something like a hundred pounds of
marijuana, a couple kilos of cocaine, large amounts of U.S. currency.” Glenn
replied that the men did not have any of that and also did not have drug
histories.
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                                  No. 16-31045
      While still in possession of the rental agreement, insurance verification
and Glenn’s driver’s license, Dawsey asked Glenn for permission to search the
car. Glenn consented, but Dawsey told a second officer who had arrived on the
scene that they needed to check with Walker, the “registered owner.” Dawsey
then questioned the front passenger, James, about which items in the car
belonged to him and instructed him to exit the vehicle. James was then
frisked.
      About fifteen minutes after initiating the stop, Dawsey ordered Walker
out of the car, saying, “I asked the driver if I could search the car, and he said
yeah.”     Walker replied, “[h]e said…he said you can search it, search it.”
Dawsey then started questioning Walker about which items in the car
belonged to him and had him move to the back of the car.
      During the search, officers did not find any drugs, but instead found: (1)
a screwdriver; (2) a front license plate and bolts; (3) “newly purchased items”;
(4) 114 blank ID cards; (5) 49 blank check sheets; (6) 45 holographic overlays;
(7) power inverter; (8) printer; (9) scissors; (10) tape; (11) an iron; (12) $95,000
cash; (13) seven white envelopes with names and social security numbers
written on them; and (14) multiple computer devices. When Dawsey suggested
the men were making credit cards, Glenn responded that he was not making
credit cards and said his wife owned a beauty salon. Glenn also said the money
belonged to him and that he buys houses. Additionally, Walker was self-
employed in the real estate business.
      Walker, Glenn and James were arrested and subsequently indicted for
unauthorized access device fraud in violation of 18 U.S.C. §§ 1029(a)(3) and 2;
aggravated identity theft in violation of 18 U.S.C. § 1028A; and conspiracy in
violation of 18 U.S.C. §§ 371 and 2, 18 U.S.C. § 514(a)(1) and (2), 18 U.S.C. §
1028(a)(1), and 18 U.S.C. § 1029(a)(2).        The defendants filed motions to
suppress, with Glenn and James contesting the justification for the initial stop,
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                                  No. 16-31045
all three contesting the duration of the stop, and Walker contesting the search
of the vehicle.
      After a hearing and post-hearing briefing, the district court denied
Walker’s motion as to the legality of the stop, but granted the motion on the
basis that the vehicle search was in violation of the Fourth Amendment
because Walker did not give voluntary consent to search. Thus, the court
suppressed all evidence illegally seized. The district court denied Glenn’s
motion and James’ motion, finding that they were not unlawfully seized and
had no standing to challenge the search.         The government subsequently
appealed.
                          STANDARD OF REVIEW
      In reviewing a district court’s grant of a motion to suppress evidence
obtained in violation of the Fourth Amendment, this court reviews the district
court’s factual findings for clear error and its legal conclusions de novo. United
States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003). Voluntariness of consent
is a factual inquiry which is reviewed for clear error. United States v. Rounds,
749 F.3d 326, 338 (5th Cir. 2014). “Where a court has based its denial on live
testimony, ‘the clearly erroneous standard is particularly strong because the
judge had the opportunity to observe the demeanor of the witnesses.’” Id.
(quoting United States v. Santiago, 410 F.3d 193, 197 (5th Cir.2005)). We view
the evidence introduced at a suppression hearing in the light most favorable to
the prevailing party. United States v. Orozco, 191 F.3d 578, 581 (5th Cir.1999).
                                 DISCUSSION
      The government asserts that the district court clearly erred in finding
that Walker’s consent was not voluntary under the totality of the
circumstances.
      Consent provides an exception to the Fourth Amendment’s warrant and
probable-cause requirements. Rounds, 749 F.3d at 338; see also Schneckloth
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v. Bustamonte, 412 U.S. 218, 219 (1973).         But, to rely on consent, the
government must prove by a preponderance of the evidence that the consent
was given freely and voluntarily. United States v. Tompkins, 130 F.3d 117,
121 (5th Cir. 1997).     Voluntariness is determined by the totality of the
circumstances and includes a consideration of the following non-exclusive
relevant factors:
      (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). The district
court concluded that Walker’s consent was the product of an involuntary
custodial status and coercive police tactics.
      Specifically, the government asserts that all six relevant factors favor a
finding of voluntariness. We disagree.
(1) The voluntariness of the defendant's custodial status
      The government asserts that, although Walker was stopped and
detained, he was unrestrained on a public road and that this factor should
carry little weight.
      Although Walker was not handcuffed, Dawsey’s actions clearly indicated
that Walker was not free to leave. Dawsey also testified to the fact that Walker
was not free to leave at any time after he was ordered to exit the vehicle.
Additionally, Dawsey had possession of Walker’s rental agreement, insurance
verification and Glenn’s driver’s license throughout the stop. A panel of this
court has said in an unpublished opinion that the failure to return a rental
agreement after the issuance of a warning citation where there was no
indication that the defendant asked for its return was, by itself, not sufficient

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                                  No. 16-31045
to invalidate consent. United States v. Bessolo, 269 F. App’x 413, 419-20 (5th
Cir. 2008). In a subsequent case, this court further acknowledged that a
reasonable person might not feel free to leave in a similar situation until he
had received the “promised warning and his driver’s license had been
returned.”   United States v. Cavitt, 550 F.3d 430, 439 (5th Cir. 2008).
“Furthermore, we have previously concluded that an officer’s retention of
identification documents suggests coercion.” Id.
      Thus, under the circumstances here, it was not clearly erroneous for the
district court to weigh this factor against the government.
(2) The presence of coercive police procedures
      The government asserts that there was no basis for the district court to
find that Walker was subjected to coercive tactics.
      In United States v. Jaras, 86 F.3d 383, 389-90 (5th Cir. 1996), this court
concluded that the district court erred in denying a motion to suppress
evidence where an officer received consent to search a vehicle from the driver,
but then proceeded to search the luggage of a passenger. The officer never
asked the passenger for consent to search his luggage, which was contained in
the trunk of the vehicle, but merely informed him that the driver had
consented to a search of the car. Id. This court concluded that the search was
not justified on the basis of the driver’s consent. Further, this court found that
the passenger had not given implied consent by failing to object when the
officer informed him that the driver consented or when he responded to
questions about the suitcases, saying in relevant part: “Jaras’s consent to a
search of the suitcases cannot be inferred from Jaras’s silence and failure to
object because the police officer did not expressly or implicitly request Jaras’s
consent prior to the search.”    Id. at 390. Jaras is not inapposite, as the
government claims.


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                                 No. 16-31045
      Here, Dawsey conceded that he never asked Walker for consent to
search. Instead, Dawsey merely informed Walker that Glenn gave consent.
Also, Dawsey acknowledged that he knew Glenn was not authorized to give
consent. The record does not establish that Walker would have been able to
hear Dawsey ask Glenn for permission to search or tell the other officer that
they also needed to check with Walker. But the record does establish that
Dawsey clearly knew Walker rented the car and that he was the only person
authorized to provide consent. It was unreasonable for Dawsey to rely on any
consent from Glenn to search the car. Dawsey never informed Walker that
only he could lawfully provide consent or refuse to give consent to search the
vehicle, but he did inform Walker that he already had Glenn’s consent.
Moreover, the fact that Walker did not object does not establish consent. See
id.; see also Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) (the burden
of proving consent “cannot be discharged by showing no more than
acquiescence to a claim of lawful authority.”).
      Thus, it was not clearly erroneous for the district court to find that the
officer’s statement of Glenn’s consent, rather than asking Walker for consent,
also militates against the government.
(3) The extent and level of the defendant's cooperation with the police
      The government asserts that the district court correctly found that
Walker’s cooperation with Dawsey favors voluntariness.            Indeed, Dawsey
testified that the occupants did not seem nervous and were cooperative.
(4) The defendant's awareness of his right to refuse to consent
      The government asserts that the district court ignored Walker’s criminal
history in concluding that Walker was not aware of his right to refuse consent.
      Dawsey admitted that he never informed Walker of his right to refuse
consent and that he retained possession of Walker’s rental agreement, Glenn’s
driver’s license, and the insurance verification throughout the encounter. The
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government’s assertion that the officers discussed the need for Walker’s
consent within earshot of Walker is not established by the record. Regardless
of whether the officers discussed it outside the rental car or in Dawsey’s patrol
car, Walker was still in the backseat of the rental car stopped along a major,
public interstate with heavy traffic noise. The backdoor was closed. Nothing
on the dash cam video 3 of the stop contradicts the district court’s findings. See
United States v. Wallen, 388 F.3d 161, 164 (5th Cir. 2004) (“Findings that are
in plain contradiction of the videotape evidence constitute clear error.”).
      We have said that, in cases involving ambiguous statements of consent
or where the officer retains possession of a defendant’s personal effects, the
failure to inform the defendant of his right to refuse consent properly militates
against the government. See United States v. Shabazz, 993 F.2d 431, 438 (5th
Cir. 1993); see also United States v. Zavala, 459 F.App’x 429, 434 (5th Cir.
2012). Further, the government fails to establish that any prior, unrelated
criminal history somehow provided Walker with the knowledge that only he,
as the authorized driver and renter, could provide consent for the search of the
car or refuse consent where the officer had already removed and frisked two
occupants, conveyed that he had Glenn’s consent, and retained possession of
the occupants’ personal effects.
      Accordingly, it was not clearly erroneous for the district court to find that
the failure to inform Walker of his right to refuse consent militates against the
government.
(5) The defendant's education and intelligence
      The government asserts that the district court erred in finding that this
factor weighed only marginally in favor of voluntariness.


      3 The government introduced a transcript of the video. The audiovisual recording
may be accessed via the following internet link:
http://www.ca5.uscourts.gov/opinions/unpub/16/16-31045.mp4.
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                                        No. 16-31045
      Dawsey testified that his report said thirteen years of education which
indicated that Walker had conveyed that he had at least briefly attended
college. Dawsey also specifically said that he did not make any assessment of
Walker’s level of intelligence, but added that he “spoke well and our
conversation was well.”
      Based on the record, the district court did not clearly err in finding that
this factor marginally militates in favor of the government.
(6) The defendant's belief that no incriminating evidence will be found
      The government concedes that Walker may not have been aware that
incriminating evidence would be found in his rental car.                      Further, the
government agrees that, because there is little evidence in the record from
which to draw a conclusion, the district court properly found that this factor
was of neutral weight in the voluntariness balance.
                                      CONCLUSION
      After weighing each of these factors, the district court found that Walker
did not voluntarily consent to the warrantless search of the vehicle, saying,
“[t]he degree of Walker’s cooperation and intelligence are outweighed by the
involuntary nature of his custodial status, the use of coercive police tactics
coupled with the fact that he was not informed of his right to refuse consent.
These factors weigh heavily against the voluntariness of his purported
consent.”
      After concluding that Walker’s purported consent was not voluntary, the
district court conducted a probable cause inquiry, despite the failure of the
parties to raise Dawsey’s pronouncement 4 of probable cause, and determined
that there was not probable cause.




      4   Dawsey testified that he believed he could verbalize probable cause for the search.
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                                       No. 16-31045
       The district court heard live testimony, did a thorough analysis
considering all factors and concluded that the government did not prove by a
preponderance of the evidence that the consent was given freely and
voluntarily under the totality of the circumstances. Nothing on the video or in
the record contradicts the district court’s factual findings on consent.
       For the reasons stated herein and stated by the district court in its
Ruling and Order, we conclude that the district court did not clearly err in
finding that Walker’s consent was not voluntary. Thus, the district court’s
partial grant of the motion to suppress is AFFIRMED. 5




       5  Walker raises an alternative issue of whether there was reasonable suspicion for an
officer to transform a traffic stop into an on-scene drug investigation. Based on our conclusion
that the district court did not err, we do not find it necessary to determine whether that issue
is properly raised or to address it.
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