United States v. Hernandez

DeMOSS, JONES, Before SMITH Judges. Circuit DeMOSS, Judge: Circuit Suniga Linda Defendant-Appellee, Hernandez, posses- indicted for Yorle was more than intent to distribute sion with in of heroin violation of kilogram one 841(b)(l)(A)(i). 841(a)(1) §§ U.S.C. Hernandez’s granted The district court seized dur- suppress the heroin motion to at a bus sta- luggage of her ing search (1) The district court concluded that tion. manipulation of Hernandez’s the officer’s in violation suitcase was the Fourth Amendment under Bond States, 334, 120 S.Ct. (2) (2000), Her- L.Ed.2d subsequent consent to search nandez’s not cure the earlier Fourth suitcase did AFFIRM. We Amendment violation.

I. BACKGROUND 7, 1999, September members On survey- Department were Houston Police Greyhound at the bus sta- ing passengers possible drug in traffick- tion Houston for effort, During drug interdiction ers. Ordaz, was Armando who Officer uniform, enter observed her as a He continued to observe station. activity. alleged suspicious result that Hernandez Officer Ordaz testified with a new black suit- entered the station case, which not have identification addition, Ordaz noted tags. Officer heavy by appeared to be that her suitcase (ar- Powers, Atty. L. Asst. U.S. James difficulty moving it way she had when Turner, Atty., Asst. U.S. gued), James Lee passenger line. standing she was Houston, TX, Plaintiff-Appellant. for Ordaz, ap- According to Officer Houston, TX, frequently looked peared nervous (argued), Guy L. Womack trying to if she were around the station as Defendant-Appellee. for determine whether she being proached ob- Hernandez. He identified him- served. Hernandez also was observed self as a questioned officer and Her- checking her ticket times and several nandez about plans. her travel Officer forth,” “swaying back and which Officer Ordaz then asked Hernandez to exit the Ordaz considered evidence that she was bus with him. Ordaz Officer testified that anxious for depart. the bus to Officer Hernandez appeared nervous when she Ordaz, furthermore, noted that Hernandez leaving the bus produced and that she guarded her suitcase “in a possessive man- one-way tickets, seven bus all of which Moreover, ner.” stood be- were from Houston Washington, D.C., hind Hernandez in passenger line and issued paid name and for observed she was traveling Wash- cash. with D.C., ington, is, which according to DEA Hernandez told Officer Ordaz that she reports, major investigation “drug de- had a tan backpack suitcase, as well as a city.” mand which she described to him. Officer Ordaz Officer Ordaz lost visual contact with pulled then Hernandez’s suitcase from the Hernandez when he away by was called luggage compartment and asked her to Later, another officer. when Officer Or- identify it. told Hernandez Officer Ordaz Hernandez, daz’s was attention returned to that she was transporting the suitcase for he that observed both she and her suitcase someone else given who had it to her in Washington aboard the bound bus. San Antonio and that she did not know its Officer approached Ordaz the bus and en- contents. luggage compartment

tered the to search Officer Ordaz asked per- Hernandez for for Hernandez’s Although suitcase. Her- open suitcase, mission to and she con- nandez’s suitcase did not have identifi- However, sented. Hernandez did not tags, cation Officer Ordaz was able to lo- know the combination to the lock on the cate it because he recalled that the brand result, suitcase. As a Officer Ordaz testi- name “Bagmax.” was taking Without pried fied that he open zipper of the luggage suitcase out of the compartment, using pen suitcase either a or knife. While picked Officer Ordaz it and up turned it inspecting suitcase, the contents of the Of- around. He further manipulated the suit- ficer Ordaz discovered more than four kilo- by pressing case on the outside of it with grams of heroin within hidden socks. his hands. He observed that it had “some- thing heavy solid or in the center of it.” initially pled guilty Hernandez to pos- At Hernandez’s detention hearing, Officer sessing, distribute, with the intent to more Ordaz that handling testified after the suit- than one kilogram However, of heroin. feeling case and solid or something heavy prior to her sentencing, the United States it, became more suspicious. he Howev- Supreme Court decided Bond v. United er, on by govern- redirect examination States, 334, 335, 120 S.Ct. ment, Ordaz Officer denied that he became (2000), 146 L.Ed.2d 366 holding that a “law suspicious more handling after the suit- physical enforcement officer’s manipu- case. of a passenger’s carry-on lation bus lug- manipulating

After Hernandez’s gage suitcase violated the Fourth Amendment’s in the luggage compartment, Officer Ordaz proscription against unreasonable police officers, consulted with other result, searches.” As a the district court they speak decided to with her. Officer allowed Hernandez withdraw her guilty Ordaz then boarded ap- plea. the bus and Furthermore, found Offi- the court suppress then moved suspicious of holding an evidentia- cer Ordaz “was than Rather

heroin. motion, nervous, was she suppression only she looked hearing on the because ry anxious, heavy, appeared to let the district parties agreed her suitcase transcript tag the basis of not have an identification decide suitcase did hearing and detention appeared new.” Howev- and the suitcase investigation. Her- of the report er, DEA’s these court noted that “none of Bond, the ma- that under argued alone, nandez rose be- together, or observations suitcase of her nipulation Rather, according to the suspicion.” yond the Fourth Amendment violating court, have characteristics could those resulting contraband watching “an innocent from been observed that must be poisonous tree” “fruit of drug traf- engaged person who is Rivas, See United States suppressed. result, “in- the court found ficking.” As testimony his officer Ordaz’s credible the contraband argued government ‘touching unaffected his suspicions were suppressed not be because should suitcase.” feeling’ ‘Bagmax’ suitcase, to search the had consent also concluded Hernan- The court discovery/in- of the inevitable because the subsequent consent did not cure dez’s doctrine. source dependent However, the court earlier violation. motion to granted court The district the voluntari- findings regarding made no that Bond court The concluded suppress. The govern- ness of consent. Hernandez’s that Her- directly point on and found ruling. appeals the district court’s ment rights were Fourth Amendment nandez’s searched Officer Ordaz violated because II. OF STANDARD REVIEW cause and probable without her suitcase district court’s determina The court de- prior obtaining consent. The sup ruling of fact on motion to tion discovery/in- that termined the inevitable find accepted are unless the court’s press apply not source doctrine dependent States erroneous. clearly ings are officers were it was clear because (5th Cir.2000). Jones, 234, v. 239 234 line pursuing a substantial alternative not if finding clearly A is erroneous was be- investigation of when the suitcase and firm convic is left with the “definite The court that no one ing search. noted tion that a mistake has been committed.” drug trafficking was oc- reported had City, 470 City v. Bessemer Anderson of station, less that curring at the bus much 573, 1504, 564, L.Ed.2d 105 S.Ct. 84 Also, there might be involved. (1985) (quoting United States v. Unit 518 dogs present to alert drug-sniffing were no Co., 395, 364, Gypsum ed States No- officers to Hernandez’s suitcase. (1948)). Ques 68 S.Ct. 92 L.Ed. tably, the court characterized Officer Or- Jones, reviewed de novo. tions of law are testimony suspicion concern- daz’s that his F.3d at 239. The court views after he ing Hernandez did not increase to the fight evidence in the most favorable “untruth- manipulated her as had suitcase party, wiiich in this case is the prevailing the district court con- ful.” The reasons defendant. Id. (a) lying it is cluded Ordaz was something suspi- feeling “incredible” that III. DISCUSSION bag in the did not increase Ordaz’s cious (b) dis government appeals inconsis- suspicions; gave grant trict of Hernandez’s motion testimony point. on this court’s tent suppress the heroin seized after search- criminating Jones, evidence will be found. ing her suitcase. gov- We note 234 F.3d at 242 (citing United States v. ernment does argue appeal on Shabazz, that the (5th Cir.1993)). district court in concluding erred that the single No factor this test dispositive. physical manipulation of Hernandez’s suit- Id. case was an illegal under the Su- To determine whether the defen preme Court’s decision It is Bond. well dant’s consent independent was an act of established that issues raised before the will, free breaking the causal chain be district court presented but not appeal tween the consent and the constitutional Shows, are waived. HC Gun & Inc. Knife violation, we must consider three factors: City Houston, 1) temporal prorimity Cir.2000). Therefore, we need not consid- 2) consent; conduct and the presence er that issue in govern- detail because the intervening 3) circumstances; and ment has effectively conceded that Officer purpose and the flagrancy of the initial Ordaz’s manipulation of the suitcase was Jones, misconduct. 234 F.3d at 243 (citing an illegal search. Chavez-Villarreal, 128). 3 F.3d at question threshold for this court whether Hernandez’s subsequent A. Voluntariness Consent consent to search her luggage cured Turning to the prong first possible Fourth Amendment violation. test, we find that Hernandez’s consent person gives When search, consent to voluntarily First, given. but “may, does not necessari custodial status was voluntary. Hernan ly, dissipate the prior taint” of a Fourth dez maintains that she did not feel free to Amendment violation. United States v. D.C., leave for Washington, having after a Chavez-Villarreal, (5th 3 F.3d 127 police officer board the bus where she was admissibility chal seated, himself, identify and then ask her lenged evidence “turns on a two-pronged to disembark from However, the bus. 1) inquiry: whether the consent was volun Hernandez in custody was not when she 2) tarily given; and whether the consent consented to leave the bus or gave her an independent

was act of free will.” consent for the suitcase to be searched. Jones, 234 F.3d at 242 (citing Chavez- She had not been arrested and there is Villarreal, 127). 3 at prong F.3d The first nothing in the record to suggest that she inquiry coercion, “focuses on did not feel she could give to refuse her second on causal connection with the con or speak consent with Officer Ordaz. See stitutional Chavez-Villarreal, violation.” Cooper, United States v. at 127. F.3d (5th Cir.1995) (finding, similar under cir

To cumstances, determine whether consent was that because a per reasonable voluntarily given, the court a six fac uses son would have felt free to decline the 1) tor test: the voluntariness of the defen request, officer’s the initial contact with 2) status; dant’s custodial the presence of legitimate the defendant was a and com 3) police procedures; coercive the extent pletely citizen-police consensual encoun ter). and level of cooperation the defendant’s Approaching someone who is in a 4) police; with the the defendant’s aware public place, identifying police as a oneself 5) right consent; ness of his to refuse officer, and asking questions not con does defendant’s education and intelligence; stitute seizure. United v. States Gon 6) zales, (5th defendant’s belief in- that no Cir.1988) that Hernan- Fifth, indicates Hanson, the record States

(citing United contends Hernandez Cir.1986)). is well educated. dez 757, 761 or any education did not have that she Second, were not actions Ordaz’s Officer This interaction. training police-civilian in Officer that contends Hernandez coercive. do not Most surprising. civilians is not following her around in actions Ordaz’s However, type of education. have that and, thus, intimidating the bus station medical graduated from has Hernandez However, evidence there is no coercive. way on her to have been and claims school even to indicate that Hernandez the record D.C., she intended Washington, where to by police being observed knew she was training. medical pursue further to the bus Ordaz boarded Officer officers. Spanish addition, both is conversant in she weapon display not He did himself. to indicate nothing English. There is Hernandez attempt to threaten not he did the vol- impacted a lack of education any way. her consent. untariness of Third, cooperation with argues substantial. Hernandez police Sixth, knew likely it Hernandez is that she did contrary. She notes to the found. be incriminating evidence would the combination give any drugs not Officer However, if she did not know falsely stated claimed, and that she her suitcase initially as she inside suitcase in the suitcase drugs no there for her to have no reason there would been pack the suitcase. not and that she did Thus, there deny for a search. voluntarily Nevertheless, indicate that this factor to nothing under with agreed get off the bus voluntary. consent was her her suit- willingly Ordaz. identified She six factors discussed Based on the for Officer Ordaz permission and gave case voluntarily above, we find nothing in the rec- to search it. There having consented to displayed indicates Hernandez ord However, still deter- we must suitcase. any police offi- any actions toward hostile indepen- the consent was mine whether their to frustrate attempted cer or that she words, we In other act of free will. dent manner. investigation considerable connec- the causal must consider whether Fourth, that it is not clear we find violation between the constitutional tion whether Hernandez was from the record sufficiently consent and Hernandez’s right to consent. The aware of refuse her broken. Ordaz did not that Officer record indicates to disem that she did not have inform her Independent as an B. Consent request or that upon the bus his bark from Free Act Will of to to the search she did not have consent causal To determine whether However, this factor is of her suitcase. vio the constitutional connection between by this to considered one six be but suffi Gonzales, lation and Hernandez’s consent v. court. States broken, the three apply we must And, ciently govern prong of the ad the second that factors under show required ment is not to test, already men which were missibility right aware of her refus defendant was below, that we Having done Gonzales, tioned at 755 above. (finding al. See “ break was not a sufficient find that right of the to there ‘apprising’ suspect initial connection between in the causal to render required is not refuse consent and the suitcase search of Hernandez’s voluntary”). the consent Ohio, later search to which she under Terry sweep” consented.

Therefore, though (1968). even Hernandez volun- S.Ct. 20 L.Ed.2d They tarily to Officer opening consented Ordaz’s drew weapons, their passen- ordered the it, her suitcase and searching van, out gers them, of the handcuffed cure the Fourth Amendment viola- placed them in the police back cars. by prior tion caused Officer Ibarra-Sanchez, 199 F.3d at 757. The manip- Ordaz’s ulation of the suitcase. argued defendants that the officers’ show Terry stop of force “converted a based on

First, temporal prox- there was a close suspicion reasonable into a full-blown ar- imity illegal between the search of Her- rest for which the probable officers had no nandez’s suitcase and her removal from Id. at 760-61. The cause.” court, howev- subsequent and the bus search with er, held the that there was no causal link Hernandez’s consent. ini- Officer Ordaz’s alleged between the arrest and the evi- manipulation tial of Hernandez’s suitcase marijuana dence of police because the had and Hernandez’s consent closely re- probable to cause search the van for lated time. government points drugs, and “it made no difference to the intervening no circumstances. ultimate result whether passengers] [the misconduct, police however, was not by stood the side of the road or sat hand- flagrant. Officer manipu- Ordaz’s physical cars.” Id. at 762. cuffed in lation of the suitcase likely would not have case, however, been the instant considered Fifth illegal under Cir- precedent cuit Nevertheless, at the search did time. make a difference. The district of the court found consideration three factors above became suf- ficiently suspicious leads this court to engage that the causal conclude only connection between the violation and conversation after he had detected hard, Therefore, heavy consent was not broken. item in the we suitcase. We agree with the district cannot finding court’s conclude this factual finding is only clearly it was after Officer erroneous manip- Ordaz had because Officer Ordaz ulated the suitcase and had felt contradicted himself what he when he was asked thought were how manipulation narcotics he about decided to the suitcase approach Hernandez affected her for the investigation. ask con- The district rejected sent to search the suitcase. Officer Ordaz’s assertion n already that he had approach decided to Rather than consider prong the second manipulating before the suit- used to test determine whether chal case that his suspicions were unaffect- lenged admissible, evidence is govern ed search. ment cites United States v. Ibarra-San chez, (5th Cir.1999) 753, 199 F.3d 761 government The also cites the Sixth Cir- (quoting Wong States, Sun v. Flowal, 371 cuit’s in decision United States v. 471, 488, 407, (6th Cir.2000). U.S. 83 S.Ct. Flowal, 9 L.Ed.2d 441 234 F.3d 932 In (1963)) proposition that, for the “To war agents DEA were informed that an airline suppression, rant the challenged evidence passenger en Angeles route from Los to must ‘by exploitation Indiana, have been obtained Wayne, Fort matched a drug- alleged] Ibarra- illegality.’” [the In Id. at 934. The agents profile. courier Sanchez, police the a,felony officers made intercepted luggage Flowal’s while he was stop a van. As approached the waiting officers for a connecting flight in Cincinna- vehicle, they the Id. smelled an odor of mari agents luggage ti. The the shook to juana around, and decided to a “protective anything conduct see if they moved but did

310 from resulting violation Offi- Id. In Amendment suspicious. anything

not discover prior manipulation of the suit- cer Ordaz’s not alert addition, dog did drug-sniffing a of the district court is judgment The case. luggage. the any drugs inside agents the AFFIRMED. Nevertheless, approached agents Id. him for consent and asked Flowal JONES, Judge, EDITH H. Circuit he authorized. which luggage, his dissenting: key a to the not have

Id. Flowal majority here concludes panel The open locks, had to so the officers luggage voluntarily consented to Id. Inside means. bag by alternative suitcase, con- but her search of the black found over five officers luggage, the taint of the not overcome the sent did Id. kilograms of cocaine. investigative unconstitutional suitcase’s Bond, Flowal, claimed that citing Applying Ordaz. squeeze his Fourth Amend- had officers violated rule, exclusionary they hold evidence they pushed shook and rights ment when drug from the kilograms of 4 of cocaine might if there luggage to determine suppressed. due must be With seizure The suspicious inside. Sixth anything be I respect, I dissent. believe explained that disagreed and Circuit product of her free will and consent was luggage was not of Flowal’s the search exploitation not of the the unconstitu- offi- Bond. The unconstitutional under tional conduct. luggage Flowal’s be- investigated cers exclusionary primary purpose rule’s drug pro- courier cause he matched discourage unconstitutional is to file, something felt they had not because See, Krull, e.g., misconduct. Illinois v. words, in In other unlike suspicious it. 1160, 1165, 340, 347, 107 S.Ct. U.S. Bond, the officers this agents (1987). Thus, may L.Ed.2d 364 evidence case had a reasonable belief suppressed when it has been obtained be before luggage could contain contraband indirectly through illegal police directly or fact, touching it. neither the ever States, activity. Wong Sun v. United luggage nor the prodding officers’ 471, 484, 407, 416, 9 L.Ed.2d 83 S.Ct. dog anything sus- drug-sniffing revealed (1963). not, exclusionary rule is the officers picious, hence the reason however, employed “when the nexus be and obtained his con- approached Flowal illegal police activity and attain tween the bags. sent to search sufficiently attenu ment the evidence resulting so that the taint from the Flowal, however, ated Flowal, at 935. dissipated.” misconduct is United States case. As we inapposite to Hernandez’s Sheppard, Cir. noted, in Hernandez’s case already have 1990) Sun, (citing Wong 371 U.S. at that Officer Ordaz the district court found 417). suspect at volun 83 S.Ct. When only after approach decided to tarily consents to a search that reveals the something suspicious he had felt evidence, incriminating may, but does no evidence that Officer suitcase. There is necessarily, overcome the taint of the Hernandez’s suitcase con- Ordaz believed Illinois, illegal police activity. Brown v. manipulated it. drugs tained before he 590, 604-05, 2261- 95 S.Ct. IV. CONCLUSION (1975). 62, 45 L.Ed.2d 416 reasons, we hold that foregoing majority opinion For the these au- The follows consent to search considers the voluntari- subsequent thorities and both suspect’s consent and Fourth ness of the whether her suitcase did not cure the

311 independent product eluded that consent was not the represented an of the consent States v. Chavez- act of free will. United All suspect’s a free will. of those cases Cir.1993). (5th Villarreal, 124, 3 F.3d 127 prolonged illegal involved detention of sus- issue, the latter Factors that bear on pects pursuant stops. to traffic also charac Supreme which the Court has (5th Jones, 234, States v. 234 F.3d 241 the consent was based terized as whether Dortch, Cir.2000); United States v. 199 exploitation illegality,1 of include: (5th 193, Cir.1999); F.3d 201 United States temporal proximity illegal conduct Chavez-Villarreal, supra. v. In those consent, intervening and the circum cases, suspects were not free to leave stances, purpose and “particularly, roadside; papers identification or driv- flagrancy of official misconduct.” Rawl ers’ licenses had been retained the law 98, 107-09, 100 ings Kentucky, v. 448 U.S. officers; suspects and the had to be aware (1980). 2556, 2562-64, 633 S.Ct. 65 L.Ed.2d they investigation were under for Brown, 603-04, 422 at 95 (quoting crimes other than the minor traffic viola- 2261-62). at S.Ct. they stopped. tions for which majority opinion finds Her- While temporal proximity, simultaneity, indeed voluntary, it nandez’s consent to have been illegal suspects’ detentions and the indepen- denies her consent was subsequent simply consents did not exist. solely dent act of free will based on the law, a implied, As matter of we it caused temporal proximity factors of close with consent, practical all purposes, them for proof by the bag squeeze, and no illegal because the detentions continued government intervening circumstances. Chavez, they gave until consent.3 In majority concede that the officer’s pointed impact out the of the coer- in squeezing conduct Hernandez’s checked Chavez, cive conduct. detention 3 (and flagrant even suitcase was not did not F.3d at 127. time),2 Fifth at the but violate Circuit law they ignore Supreme state- however, Court’s Here, temporal proximity did “partic- ment this last circumstance way, not function in the same since Her- Brown, 422 ularly” important. See U.S. at bag nandez never knew her had been 603-04, view, my 95 S.Ct. at 2261-62. squeezed investigated. or One of our majority properly failed to balance precisely point, emphasiz- cases makes these three factors. ing that to search was effective suspect gave where the who consent did critically

This case differs from other prior police con- know of the misconduct. Fifth Circuit cases which the court Sun, 488, ment), some Wong 1. See 371 U.S. at 83 S.Ct. at has been held constitutional for Karman, 417. years. See United States v. (5th 1988). Cir. arguendo 2. The United States conceded argu Fourth Amendment violation at oral true, course, 3.It that an detention ment, but it is far from certain that the Su preclude finding alone does not of volun- preme in Bond v. United Court’s decision See, Kelley, e.g., v. tariness. United States States, 1462, 120 S.Ct. (5th Cir.1993); see also Unit (2000), manipu L.Ed.2d 365 extends to the Navarro, ed States v. luggage consigned lation of the exterior of cases, these this court In both transportation companies' baggage handling applied Brown factors and held that the court, operations. manipulation In this purged consents to search the taint of baggage handling suitcases delivered to the (as possible Fourth Amendment violation. See kept pas opposed area to those with the senger compart Rawlings Kentucky, supra. in an on-board overhead also surely they almost follow- Richard, contrary, States event, then-applicable Fifth Circuit law. any ing And in tem- “exploit” not determinative a Fourth They trying alone is were not to proximity poral product of ques- consent was they the when of whether Amendment violation free will. See independent suspect’s the and obtained her con- tioned Hernandez at 1471. Kelley, 981 F.2d “particu- This to search suitcase. sent the weigh heavily should larly” relevant factor told Second, was not while Hernandez position. government’s in of the favor leave or could refuse free that she was search, not detained she was consent to that rather than there Finally, it seems not hold onto her police did illegally. The circumstances,4 the intervening being no no There is causal or her tickets. I.D. attenu expressly single circumstance of giving consent connection between illegal from Hernandez’s ates the conduct squeezing in illegal conduct the and the of the two separateness is the noted, illegal detention the As suitcase. the other cases where events. Unlike all cases in all of the in critical occurrence evidence, suppressed Her this court has ultimately exclusionary rule was which precipitated by nandez’s consent was not applied. illegal detention or her awareness Third, of the deten illegality even by police. In no sense illegal conduct are temporal proximity not tion and the that her free will it be can concluded police en determinative where previous officer’s con “overborne” exploit or gage flagrant misconduct Likewise, held that duct. con Supreme Court their violations. person from a sent to search obtained who Rawlings v. Ken out this calculus bears person’s involun was unaware another suspect “after tucky, confessed where the tary intervening cir consent was based assumed to an being in what was be Richard, cumstances. United States v. su forty-five Applying minutes. detention for pra. exception to the exclusion the attenuation rule, emphasized the infor ary the Court inquiry As the for the attenua- ultimate Shep See mal nature of the detention.” exception suspect con- tion whether at n. 10 pard, (summarizing will, I act of free independent sented as pointed also Rawlings). The Court out majority find otherwise. fail to see how the appeared there to be act that the officers exclusionary Applying rule over- ing good faith and unaware their consent makes no sense come Hernandez’s Fourth might conduct violate the Amend here. 110-111, at Rawlings, ment. reasons, I would For these REVERSE concluded: S.Ct. at 2564. The Court judgment. district court’s .... here does the conduct level of conscious or not rise to the requiring prophy-

flagrant misconduct petitioner’s

lactic exclusion state-

ments.

Rawlings, id. majority that the concede officers’ hardly flagrant. On

conduct here was Illinois, supra; telling suspect he Among intervening 4. such circumstances are consent, Kelley,supra. giving warnings, could refuse to Brown v. Miranda

Case Details

Case Name: United States v. Hernandez

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 11, 2002

Citation: 279 F.3d 302

Docket Number: 00-20682

Court Abbreviation: 5th Cir.