                    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that this opinion should not be published and is not precedent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


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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


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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.




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