Manuel and Michelle Quintero were charged with conspiracy to possess with intent to distribute and distribute in excess of 50 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2; possession with intent to *663 distribute in excess of 50 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and conspiracy to engage in money laundering in violation of 18 U.S.C. § 1956. The Quinteros moved to suppress evidence seized from a warrantless search of their hotel room, contending Michelle did not voluntarily consent to the search. The district court 1 agreed, granting the motions to suppress from which the government now appeals. We affirm.
I
On September 15, 2009, security personnel at the Dakota Magic Casino and Hotel in Hankinson, North Dakota, reported to Agent Jason Weber of the Richland County Sheriffs Office a glass lightbulb in one of the hotel rooms had apparently been used as a smoking device for narcotics. Although the occupant of the room where the bulb was found, Manuel Quintero, had recently checked out, hotel staff discovered reservations for the upcoming night under the name of Michelle Quintero, Manuel’s wife. Weber, who was familiar with the Quinteros, requested the hotel security personnel notify him when the couple returned. Around 4:30 p.m., hotel security informed Weber of the Quinteros’s return, and Weber thereafter asked the security team to conduct surveillance of the couple until law enforcement arrived.
Over five hours later, around 9:45 p.m., Weber and two other task force officers reached the hotel. The officers began their investigation by utilizing a K-9 sniff on two vehicles believed to be associated with the Quinteros, as well as a sniff outside the hotel rooms the Quinteros and their friends had rented for the night. The dog failed to alert at the respective locations, however, leading the officers to conduct a “knock-and-talk” with the Quinteros around 10:35 p.m. due to the absence of any probable cause. At this time, Weber — surrounded by another agent, hotel security personnel, and an associate manager — knocked on the Quinteros’s hotel room door three separate times. 2 After the third round of knocking, a man inside the room, later identified as Manuel, asked, “Who is it?” Rather than identifying himself with the Sheriffs Department, Weber answered, “Security.” Upon opening the door, Manuel asked if he should step outside the room. He also informed the officers his “girlfriend,” later identified as Michelle, was undressed in the darkened room. While Manuel stood in the hallway, Weber directed Michelle to get dressed on multiple occasions and come to the door.
After four or five minutes, Michelle approached the door and proclaimed to the officers, “You’re scaring the shit out of me, what happened?” Weber asked Michelle if she rented the room and if the officers could come inside. Although the government asserts Michelle answered in the affirmative, the district court noted a tape recording of the incident was inaudible as to her response. After her remarks, Weber asserted, “We’ll come in with you so we’re not making a spectacle in the hallway.” Once inside, the officers turned the light on and asked Michelle if there was anything in the room she wanted to inform the officers of, to which she replied “no” and “not that I know of.” Weber then probed multiple times whether the officers could “tak[e] a look around.” He ex *664 plained to Michelle the request stemmed from the discovery of the lightbulb in the room rented by Manuel the previous night. On the recording, Michelle was heard asking if she had a “right to ah,” as well as stating, “I don’t know” and “I don’t understand.” She also reiterated multiple times the officers were scaring her, prompting Weber to attempt to reassure Michelle by clarifying the officers just wanted to take “a quick peek around.”
After Michelle finally consented to a search of the room, the officers began conducting a thorough inspection, including an examination of the Quinteros’s personal belongings, despite Weber’s prior representations indicating the officers only wanted to take “a quick peek around.” Weber further embellished the evidence the officers maintained against the Quinteros, as he told Manuel the lightbulb discovered the previous night had been dusted for fingerprints, which matched Manuel’s fingerprints, and he asked Manuel about the incident. During the suppression hearing, Weber admitted he never actually dusted the lightbulb and he intentionally misrepresented the evidence to Manuel.
Amid the officers’ search of the room, Michelle objected, “Can you stop and get out of here?” Weber stated the officers could stop searching, but they would not leave. Seconds later, another officer declared he found apparent methamphetamine residue on a plastic wrapper in Michelle’s purse, which was located inside a night stand drawer. The officers then ceased the search immediately and informed the Quinteros they would be detained pending a search warrant. After the officers subsequently discovered a syringe needle and ziploc baggies on Michelle’s person, both Michelle and Manuel were arrested. Upon obtaining a search warrant the following day, officers uncovered more than 200 grams of methamphetamine.
The Quinteros were charged with conspiracy to possess with the intent to distribute and distribute methamphetamine, possession with intent to distribute, and conspiracy to engage in money laundering. Manuel, later joined by Michelle, moved to suppress evidence based on the unlawful search of the hotel room. Following an evidentiary hearing, the district court issued an order bifurcating its analysis into two stages, considering whether Michelle voluntarily consented to the officers’ (1) entry into the room and (2) search of the room. Taking up the first issue, the court noted whether Michelle consented was “a close call,” given Weber’s conduct outside the room, but the court ultimately held a reasonable person could find Michelle impliedly consented to the officers’ entry into the room. Once the officers gained entry to the room, the court held the totality of the circumstances did not demonstrate Michelle voluntarily consented to their search. Specifically, the court discussed the officers’ unexplained five-and-a-half-hour delay in arriving at the hotel, which resulted in them rousing the Quinteros from sleep after 10:80 p.m. The court was also concerned with the officers’ pressure on Michelle, the number of officers involved, the coercive environment surrounding the search, and Michelle’s repeated expressions of fear. Under these circumstances, the court granted the Quinteros’s motions to suppress all evidence seized as a result of the search of the hotel room. The government filed this interlocutory appeal under 18 U.S.C. § 3731, challenging the court’s voluntariness determination based on the court’s (1) consideration of irrelevant factors; (2) failure to consider proper factors; and (3) *665 misapplication of factors. 3
II
A. Standard of Review
Before reaching the merits of the government’s appeal, we first address the applicable standard of review. When reviewing a district court’s suppression determination, we review the court’s factual findings for clear error and its legal conclusions de novo.
United States v. Johnson,
Although the government recognizes the voluntariness inquiry is a factual question reviewed for clear error, it seeks a de novo review in light of the recording of the September 15, 2009, search of the Quinteros’s hotel room, which was admitted into evidence at the suppression hearing. According to the government, because the entire encounter was recorded, and Michelle did not testify at the hearing, the recording is the undisputed factual record in this case. Thus, the government argues it is only challenging the court’s legal conclusions based upon the undisputed facts.
We decline to apply a de novo standard of review. First, we are guided by our well-established precedent demonstrating the voluntariness determination is a factual question reviewed for clear error.
See United States v. Garcia,
Second, we are unpersuaded by the government’s efforts to distinguish this case based on the tape recording. As an initial matter, the recording fails to provide a complete accounting of the facts of the encounter, which may help explain why the government felt it necessary to call two officers at the suppression hearing to testify as to their version of the events, rather than relying solely on the recording as the complete factual record. For instance, there is a void in the recording concerning the number of officers present during the search, the officers’ blocking of the hotel room door, and the officers’ physical appearance, i.e., Weber’s frame of standing 6'4" and 260 pounds and whether the officers were uniformed or in plain clothes. In addition, the recording is inaudible during crucial times, such as when Michelle responded to Weber’s initial request for *666 consent. On the other hand, certain statements evident on the recording turned out to be falsehoods, which was demonstrated only by Weber’s later admissions to the contrary, including his misstatement of his identity while he knocked on the door, his intended scope of the search, and his false confirmation of Manuel’s fingerprints on the lightbulb through forensic evidence. Moreover, Weber testified to additional facts not present on the recording, such as Michelle’s nervous demeanor. Under these circumstances, we cannot accept the government’s argument as to the recording being the complete factual record of the incident.
Furthermore, most of the cases cited by the government in support of its suggested de novo review restate, unremarkably, the general standard concerning our review of a district court’s factual findings for clear error and its legal conclusions de novo, as we recognized above.
See Johnson,
More importantly, to the extent these cases are applicable to the question of voluntariness, we find them distinguishable because each involved undisputed facts. In this case, notwithstanding the government’s concession to certain disputed facts noted by the Quinteros, such as the number of officers present at the hotel, the government continues to challenge matters more properly characterized as factual determinations. For instance, the government argues there was no improper delay on the part of the officers in arriving at the hotel; Michelle was “scrubbing” the hotel room clean of drugs during the time the officers were awaiting her arrival at the door, rather than dressing herself; she maintained control over the entire encounter with law enforcement; her fear was likely due to the hidden methamphetamine, rather than the officers’ conduct; and the officers exerted no improper pressure on her to consent. The Quinteros dispute each of these facts, among others argued by the government — many of which played a critical role in the court’s analysis.
Finally, the clear error standard we employ here reinforces the district court’s province to make factual findings regarding the nuances, tone of voice, and other subtle aspects inherent in determining whether an individual voluntarily consented to a search.
Cf. United States v. White,
B. The District Court’s Voluntariness Determination
While the Fourth Amendment does not permit warrantless searches, law enforcement may conduct such a search if they obtain a resident’s voluntary consent.
United States v. Kelley,
(1) the individual’s age and mental ability; (2) whether the individual was intoxicated or under the influence of drugs; (3) whether the individual was informed of [her] Miranda rights; and (4) whether the individual was aware, through prior experience, of the protections that the legal system provides for suspected elimináis. It is also important to consider the environment in which an individual’s consent is obtained, including (1) the length of the detention; (2) whether the police used threats, physical intimidation, or punishment to extract consent; (3) whether the police made promises or misrepresentations; (4) whether the individual was in custody or under arrest when consent was given; (5) whether the consent was given in public or in a secluded location; and (6) whether the individual stood by silently or objected to the search.
United States v. Golinveaux,
1. Whether the Court Considered Irrelevant Factors
First, the government argues the court placed great weight on the five-and-a-half-hour delay between the time the officers became aware of the Quinteros’s check-in at the hotel and the time the officers commenced the knock-and-talk at 10:30 p.m. The government contends the delay was irrelevant and no evidence established the officers intentionally delayed their investigation to confront the Quinteros at night.
We conclude the court properly considered the time of the search in determining whether Michelle’s consent was voluntary. First, our case law suggests the factors enumerated under the totality of the circumstances inquiry are non-exhaustive.
See, e.g., United States v. Griffin,
Moreover, regardless of whether the officers intentionally delayed their investigation to effectuate a nighttime search, our precedent clearly recognizes the time of the day during which a search takes place is relevant in the analysis.
See United States v. Barnum,
2. Whether the Court Failed to Consider Proper Factors
Second, the government argues the court misapplied the law by not addressing four factors which weighed in favor of voluntariness: (1) the short length of time of the encounter; (2) the fact Michelle was not in custody when she gave consent; (3) the fact her initial consent was given in a public place; and (4) the fact she was not passively silent during the search, but objected to it.
We disagree. As an initial matter, the government’s argument suggests a mechanical analysis of the factors is required, which has been expressly rejected by this court on numerous occasions.
See United States v. Comstock,
Further, we reject the government’s implication as to the court not being cognizant of these factors in its analysis. For instance, the court’s order confirms it was intimately aware of the timing of the encounter, as it discussed at length the timing between the hotel’s notification to Weber at 4:23 p.m. of the Quinteros’s re *669 turn to the hotel and the officers’ arrival on the scene at 9:45 p.m. The court detailed the K-9 search at 10:26 p.m. outside the first room associated with the Quinteros, the 10:33 p.m. search outside the second room, and the specific timing associated with the encounter. See, e.g., Suppression Order at 4 (“After four to five minutes of directing Michelle to get dressed, Michelle came to the door”). Indeed, at the hearing, the court viewed the hotel surveillance footage, and it listened to the recording of the encounter in its entirety. After a careful review of the record, we reject any notion the court was not aware of the factors it was required to consider.
Next, the government argues the court misapplied the law by giving insufficient weight to the defendant-specific factors, such as Michelle’s age, intelligence, and education; whether she was intoxicated at the time; whether she was read her Miranda rights; and whether she had a criminal history and was aware of her legal protections. In its order, the court stated:
Michelle was not called to testify. Little information is known about her age or mental ability. Agent Weber testified, however, that the Quinteros were known to law enforcement before the circumstances giving rise to this case. The Court is not concerned that Michelle lacked the ability to consent or did not understand the process. Instead, the Court is concerned about the timing of the investigation and the coercive manner in which the officers went about obtaining consent.
Id. at 10. The government contends these factors weighed in its favor, and the court’s “concession” to them cannot be overstated in the analysis.
We are not persuaded by the government’s argument. As the government recognizes, the court expressly acknowledged the defendant-specific factors in its analysis. Rather, the government essentially disagrees with the outcome of the court’s weighing of the factors. The court explicitly stated it was concerned the other relevant factors showed the officers obtained Michelle’s consent in a coercive manner, and these coercive factors outweighed the other factors under the circumstances.
See United States v. Cisneros-Gutierrez,
The problem with the government’s argument is exemplified by its analogy to
United States v. Va Lerie,
3. Whether the Court Misconstrued Factors
Finally, the government argues the court misapplied the law by holding *670 Michelle was coerced into consenting to the search because other reasons, such as the hidden methamphetamine, justified her fear, and the presence of six individuals— three officers, two security guards, and one hotel manager — was insufficient to create a coercive environment. The government also asserts the court misapplied the law in holding the officers made misrepresentations which led to the involuntary consent because officer deception, standing alone, does not invalidate consent. Moreover, the government argues Michelle knew her consent to search would reach locations where the narcotics could be hidden.
We disagree. The record supports the court’s conclusion as to the coercive atmosphere, which, coupled with the officers’ misrepresentations and Michelle’s repeated ' expressions of fear, demonstrated her consent was involuntary. We find illustrative the Supreme Court’s decision in
United States v. Drayton,
We are unpersuaded by the government’s attempts to diminish the effect of the officers’ coercion, such as its assertion as to Michelle’s fear being the product of her own illegal activity, rather than the officers’ threatening conduct. This argument runs counter to our precedent, which holds “[t]he defendant’s actual subjective state of mind at the time that he allegedly gave his consent is not determinative; our focus, rather, is on how a reasonable person could have perceived his state of mind at that time.”
United States v. Starr,
In sum, “[t]he ultimate question is whether the individual’s will has been overborne and his capacity for self-determination critically impaired, such that his consent to search must have been involuntary.”
United States v. Vinton,
Ill
We affirm the district court’s grant of the Quinteros’s motion to suppress.
Notes
. The Honorable Ralph R. Erickson, Chief Judge, United States District Court for the District of North Dakota.
. The officer with the K-9 unit was returning the dog to his vehicle at the time the knock- and-talk commenced, but later rejoined the other two officers in the search.
. The government contends the Quinteros chose not to cross-appeal the court’s ruling as to Michelle's consent to enter the hotel room and thus conceded her consent was voluntary. Appellant's Reply Br. at 14. The government goes on to argue this supposed concession undermines the Quinteros’s arguments with respect to their consent to search the room. We note the government's arguments in this regard are plainly contrary to the ambit of § 3731, which provides only
the government
with the right to an interlocutory appeal of a suppression order.
See United States v. Marasco,