     Case: 10-50313 Document: 00511482612 Page: 1 Date Filed: 05/19/2011




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

                                                 FILED
                                                                            May 19, 2011
                                       No. 10-50313
                                                                            Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

MARIA DE LOURDES CANTU,

                                                   Defendant - Appellant




                    Appeal from the United States District Court
                         for the Western District of Texas
                                    (07-CR-844)



Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Maria de Lourdes Cantu urges that her written confession must be
suppressed as the fruit of an unconstitutional search and an unwarned
interrogation. She appeals the district court’s ruling that the written statement
was admissible because it came after a separate, intervening interrogation by
a second law enforcement agency following a properly administered Miranda
warning. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50313



                                        I
      Defendant-appellant Maria de Lourdes Cantu was riding in the passenger
seat of a vehicle driven by Jose Aguilar. Deputy Sheriff Ricardo Rios of La
Pryor, Texas, stopped the car because it failed to come to a complete stop at a
stop sign, it lacked a registration sticker, and it had a permanent license plate
in the front but only a temporary plate in the rear. The missing registration
sticker and mismatched plates led Deputy Rios to suspect the vehicle may have
been stolen. As he approached the vehicle to request the driver’s license and
registration, Rios observed at least six air fresheners in the car, suggesting an
effort to mask the odor of narcotics.
      Deputy Rios testified in the district court that Aguilar failed to make eye
contact during the stop, he exhibited nervous behavior, and his insurance card
and license bore different names. Rios asked Aguilar to step out of the car.
Aguilar told the officer that he was driving to San Antonio to buy clothes for his
son, but he could not remember the boy’s name. He told the officer that the car
was owned by the person whose name appeared on the insurance card, but
Aguilar did not know who that was. Aguilar also told the officer that the female
passenger was his wife. Deputy Lopez arrived to assist, and Rios went to
question Cantu. Cantu stated that Aguilar owned the vehicle and that he was
a friend of hers.
      Aguilar consented to a search of the car. Rios observed two bags on the
floor near the front passenger seat, one of which appeared to be a purse. Both
bags were zippered shut. Rios asked Cantu if the bags belonged to her, and she
confirmed that they did. He then searched the bags. Deputy Rios did not
request Cantu’s permission to search her bags, although she did not object.
Inside the bags Rios discovered small amounts of marijuana and rolling paper.
When asked, Cantu admitted the marijuana belonged to her. Rios arrested

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Cantu, then informed Aguilar he was requesting a canine unit to check the
vehicle for any concealed narcotics.
       While other officers waited for the dog to arrive, Deputy Rios put Cantu
in a patrol car and drove her to the sheriff’s office. He had not yet informed her
of her Miranda rights.1 During the drive, Rios told Cantu that she should “help
herself out” and that “if there are any more narcotics in the vehicle, you know,
and stuff like that we should know about, I mean, you should let us know.”
Cantu responded that she believed there may be other narcotics in the vehicle.
       The canine alerted immediately to the vehicle. The handler allowed the
dog to enter through the front driver’s side door; the dog jumped to the back seat
and alerted to the floorboard. The officers then noticed that the front seats were
not properly bolted down. After removing the seats, they discovered a hidden
compartment underneath the passenger’s seat containing several kilograms of
cocaine.
       Deputy Rios reported the seizure of cocaine to Officer Gerardo Fuentes, a
local officer deputized to a federal Drug Enforcement Agency task force. Officer
Fuentes and two other DEA officers came to the sheriff’s office later that
afternoon. After first discussing the case with Deputy Rios, the DEA officers
interviewed Cantu. That interview began approximately 4.5 hours after Deputy
Rios’s conversation with Cantu in the patrol car. All three DEA officers were
wearing plain clothes, distinguishing them from the sheriff’s deputies who
conducted the traffic stop, and no sheriff’s office personnel were present during
the DEA interview.
       The DEA officers informed Cantu of her Miranda rights and asked if she
was willing to waive those rights; Cantu agreed and signed a written waiver.



       1
        See Miranda v. Arizona, 384 U.S. 436 (1966); see also Dickerson v. United States, 530
U.S. 428 (2000) (reaffirming Miranda).

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The officers then spoke with Cantu for about an hour, reporting that she was
“very cooperative” during the interview. She told the officers that she had an
intermittent romantic relationship with Aguilar and that she suspected he was
involved in narcotics trafficking. She said she knew there were drugs in the
vehicle, but claimed she did not know what kind of drugs they were, where in the
vehicle they were located, or what Aguilar planned to do with them. At the end
of the interview, the officers asked if she was willing to provide a written
statement.2 When Cantu agreed, she was given writing supplies and left alone
inside an office to prepare her statement, which she gave to the officers
approximately 1.5 hours later.
       Cantu moved before trial to suppress the drug evidence, her unwarned
statement to Deputy Rios, and her written confession to the DEA officers.3 The
district court held that the search of Cantu’s bags violated the Fourth
Amendment and suppressed the marijuana evidence. It also ruled that the
statement made to Deputy Rios was inadmissible as the product of an unwarned
interrogation.      However, the district court refused to suppress the cocaine
evidence, explaining that the passenger in an automobile does not have standing
to challenge the legality of a search of the vehicle,4 and also refused to suppress
the written confession, finding there had been sufficient attenuation of the taint
from the earlier illegality.
       Following a single-day jury trial, Cantu was convicted of possession with
intent to distribute five kilograms or more of cocaine and of a corresponding

       2
         According to Officer Fuentes, it is “possible” that Cantu was told that if she cooperated
he would recommend she be released on bond, although he did not specifically recall any
officers telling her this.
       3
        Cantu did not move to suppress her oral statements to the DEA officers, nor did she
object when those statements were introduced at trial.
       4
       See, e.g., United States v. Grant, 349 F.3d 192, 196 (5th Cir. 2003); United States v.
Runyan, 275 F.3d 449, 457 (5th Cir. 2001). Cantu does not challenge this ruling on appeal.

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conspiracy count. She received concurrent sentences of 121 months. Cantu now
appeals her judgment of conviction, challenging the admission of her written
confession.


                                              II
      Oregon v. Elstad holds that “[a] subsequent administration of Miranda
warnings to a suspect who has given a voluntary but unwarned statement
ordinarily should suffice to remove the conditions that precluded admission of
the earlier statement.”5          The Elstad Court rejected the argument that
statements made in a properly conducted interrogation must be suppressed
because the defendant “‘let the cat out of the bag’” in an earlier, inadmissible
interrogation.6 Because Cantu was given a proper Miranda warning at the start
of her DEA interview, Elstad instructs that her written confession at the end of
that interview is admissible despite the earlier, unwarned interrogation by
Deputy Rios.
      The Court later held in Michigan v. Seibert that the administration of a
Miranda warning may fail to cure the illegality when police employ a two-stage
interrogation procedure designed to end-run Miranda, with the second
interrogation serving only to ratify statements obtained in an unwarned
interrogation.7 Unlike in Seibert, however, there was little continuity between
the two interrogations in this case.8 Deputy Rios asked his questions in his
patrol car, whereas the later DEA interview was conducted in a different



      5
          470 U.S. 298, 314 (1985).
      6
          See id. at 311 (quoting United States v. Bayer, 331 U.S. 532, 540–41 (1947)).
      7
          542 U.S. 600 (2004).
      8
       Cf. id. at 615 (plurality opinion); id. at 621, 622 (Kennedy, J., concurring in the
judgment).

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                                          No. 10-50313

location by different personnel working for a different agency. There was a 4.5-
hour break between the two interrogations, and the DEA agents in their
interview did not exploit or refer back to Cantu’s earlier statement. Under the
circumstances here, we conclude that the DEA interrogation and the resulting
confession were not impermissibly tainted by Deputy Rios’s earlier Miranda
violation.


                                              III
      The district court also determined that the warrantless search of Cantu’s
bags violated the Fourth Amendment, but found this illegality sufficiently
attenuated by the end of the DEA interview that it did not taint the written
confession. When weighing the attenuation of the taint from an illegal search,
we consider “‘the temporal proximity of the illegality and the confession, the
presence of intervening circumstances, and, particularly, the purpose and
flagrancy of the official misconduct.’” 9


                                               A
      The district court held that Deputy Rios’s search of Cantu’s bags was
unconstitutional under this court’s decision United States v. Jaras.10 In Jaras,
police received consent for a search from the driver of a vehicle, leading them to
two suitcases in the trunk.          The driver told the officers that the suitcases
belonged to his passenger, Jaras.             The officers told Jaras that they had
permission from the driver to search the car, then proceeded to open the




      9
        Rawlings v. Kentucky, 448 U.S. 98, 107 (1980) (quoting Brown v. Illinois, 422 U.S.
590, 603–04 (1975)); United States v. Miller, 608 F.2d 1089, 1102 (5th Cir. 1979).
      10
           86 F.3d 383 (5th Cir. 1996).

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suitcases, with Jaras neither consenting nor specifically objecting to the search.11
We held that the search of Jaras’s suitcases violated the Fourth Amendment
because the driver had neither actual nor apparent authority to consent to a
search of his passenger’s property 12 and because Jaras’s “mere acquiescence”
could not be construed as voluntary consent when officers never asked for his
permission.13
       The Government argues that the search was permissible under United
States v. Navarro,14 but Navarro is distinguishable. In that case, as in Jaras, a
driver consented to a search of his vehicle, which contained a closed duffle bag
on the back seat. Unaware that the duffle bag belonged to a passenger, police
opened the bag and found methamphetamine.15 We distinguished Jaras and
allowed the contents of Navarro’s duffle bag to be admitted because the officers
in Navarro had “no indication” that the bag belonged to someone other than the
driver.16
       Deputy Rios knew that the bags he found belonged to Cantu, not the
driver. She told him so. While the officers in Navarro may have reasonably




       11
            Id. at 386.
       12
          Id. at 389–90; see also United States v. Infante-Ruiz, 13 F.3d 498, 505 (1st Cir. 1994)
(driver’s consent does not allow police to search briefcase identified as belonging to the
passenger); United States v. Welch, 4 F.3d 761, 764–65 (9th Cir. 1993) (driver’s consent does
not permit police to search his girlfriend’s purse found in the trunk).
       13
          Jaras, 86 F.3d at 390–91 (citing Bumper v. North Carolina, 391 U.S. 543, 548–49
(1968)); see also United States v. Hurtado, 905 F.2d 74 (5th Cir. 1990) (en banc) (holding that
the Government must prove consent by a preponderance of the evidence).
       14
            169 F.3d 228 (5th Cir. 1999).
       15
            Id. at 230.
       16
            Id. at 232.

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believed that the duffle bag belonged to the consenting driver,17 the officer
here—like the officers in Jaras—knew the closed bags belonged to a passenger
who had not given consent. The district court correctly ruled that the search of
Cantu’s bags was unconstitutional.
       The government further argues that, even if the search was illegal, it was
not particularly flagrant. We disagree. There is nothing unclear about Jaras,
which has been the law of this circuit for almost 15 years. Deputy Rios had no
authority to search inside Cantu’s closed bags without her consent, which he
neither sought nor obtained. And he knew the bags he was searching were hers.
       While the illegality of the handbag search was plain, the nexus between
the evidence it produced and Cantu’s confession is weak.18 The cocaine hidden
under the floorboard was several steps removed from the marijuana found in her
purse.      Nothing suggests that Deputy Rios searched Cantu’s bags to gain
leverage to exact her confession to other drugs in the car, nor did his discovery
that she had possession of a small quantity of marijuana compel her to confess
to possession of a large quantity of cocaine when it was later found.


                                             B
       The Government contends that the taint of the illegal search was
sufficiently attenuated by the intervening DEA interrogation and its
accompanying Miranda warning. When a confession is obtained following an
unconstitutional search, the Constitution “requires not merely that the
statement meet the Fifth Amendment standard of voluntariness[,] but that it be



       17
         Cf. Herring v. United States, 555 U.S. 135 (2009) (holding that isolated, good-faith
errors by police do not trigger the exclusionary rule).
       18
         Cf. United States v. Sheppard, 901 F.2d 1230, 1236 n.11 (5th Cir. 1990) (noting a
“lack of nexus between the purpose of the police conduct and either what was disclosed
thereby, the consent, or the evidence in issue”).

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‘sufficiently an act of free will to purge the primary taint.’”19 We have identified
the administration of a Miranda warning as one significant factor in this
analysis,20 but a Miranda warning alone will not always suffice to purge the
taint of an unconstitutional search or seizure.21
       In this case, the full circumstances of the DEA interrogation served to
attenuate any effect from the earlier misconduct. The Miranda warning made
clear that Cantu was under no obligation to talk to the police, even if asked to
confirm or deny information the police already knew.                       Further, the DEA
interrogation was performed by federal officers, not the sheriff’s deputies who
conducted the traffic stop, and neither Deputy Rios nor any other sheriff’s office
personnel participated in the DEA interview. The DEA officers wore plain
clothes rather than police uniforms, distinguishing them from the sheriff’s
deputies. Although the DEA interview took place at the sheriff’s office, it was
well removed in time and location from the traffic stop and the patrol car where
the earlier misconduct took place.
       In short, the DEA interrogation was conducted in a “different place[] . . .
with different people in a different atmosphere” than the illegal search.22 By
distancing the DEA interview from the earlier misconduct, these circumstances



       19
            Brown, 422 U.S. at 602 (quoting Wong Sun v. United States, 371 U.S. 471, 486
(1963)).
       20
          See, e.g., United States v. Basey, 816 F.2d 980, 995 (5th Cir. 1987) (noting that “the
curative power of Miranda warnings may be given great weight in some situations,” so “we
review repeated efforts to inform [a defendant] of his rights as a factor tending to support the
conclusion that his statements . . . were an act of free will” (citing Elstad, 470 U.S. at 298));
see also Rawlings, 448 U.S. at 98 (describing Miranda warnings as “important, although not
dispositive”).
       21
         Brown, 422 U.S. at 601; United States v. Webster, 750 F.2d 307, 324 (5th Cir. 1984);
Miller, 608 F.2d at 1102; cf. Taylor v. Alabama, 457 U.S. 687, 691 (1982) (three Miranda
warnings not enough to purge taint of illegal arrest).
       22
            United States v. Richard, 994 F.2d 244, 252 (5th Cir. 1993).

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                                       No. 10-50313

created an “atmosphere . . . more conducive to an act of free will.” 23 That willful
act— Cantu’s        knowing      and   voluntary   decision   to   give   a   written
confession—purged any remaining taint from the earlier illegality, weighing
heavily in favor of admitting the confession.


                                            C
      Approximately seven hours passed between the search of Cantu’s purse
and the receipt of her written confession. This is a relatively short period of
time, but not exceptionally so. The Supreme Court held in Taylor v. Alabama
that a six-hour interval was not long enough to purge the taint where the
suspect “was in police custody, unrepresented by counsel, and . . . questioned on
several occasions, fingerprinted, and subjected to a line-up.” 24 The time interval
here was roughly similar, but Cantu spent most of her detention at the sheriff’s
office in a room by herself. Unlike the defendant in Taylor, who was subject to
constant interruption, Cantu had approximately 4.5 hours preceding the DEA
interview when she was not under interrogation. In contrast to Taylor, the
Court held in Rawlings v. Kentucky that a period as short as 45 minutes may
help to attenuate the taint if the suspect is held in a “congenial atmosphere.” 25
      We are persuaded that the district court properly admitted the written
confession in this case. The judgment of conviction is AFFIRMED.




      23
           Id.
      24
           457 U.S. at 691.
      25
           448 U.S. at 107–08.

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