United States v. Hernandez

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 00-20682

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

LINDA SUNIGA YORLE HERNANDEZ,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

January 11, 2002

Before JONES, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-Appellee, Linda Suniga Yorle Hernandez, was indicted

for possession with intent to distribute more than one kilogram of

heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i).

The district court granted Hernandez's motion to suppress the

heroin seized during a search of her luggage at a bus station. The

district court concluded that (1) the officer's manipulation of

Hernandez's suitcase was an illegal search in violation of the

1

Fourth Amendment under Bond v. United States, 529 U.S. 334 (2000),

and (2) Hernandez's subsequent consent to search her suitcase did

not cure the earlier Fourth Amendment violation. We AFFIRM.

I. BACKGROUND

On September 7, 1999, members of the Houston Police Department

were surveying passengers at the Greyhound bus station in Houston

for possible drug traffickers. During this drug interdiction

effort, Officer Armando Ordaz, who was not in uniform, observed

Hernandez enter the station. He continued to observe her as a

result of alleged suspicious activity.

Officer Ordaz testified that Hernandez entered the station

with a new black suitcase, which did not have identification tags.

In addition, Officer Ordaz noted that her suitcase appeared to be

heavy by the way she had difficulty moving it when she was standing

in the passenger line. According to Officer Ordaz, Hernandez

appeared nervous and frequently looked around the station as if she

were trying to determine whether she was being observed. Hernandez

also was observed checking her ticket several times and “swaying

back and forth,” which Officer Ordaz considered evidence that she

was anxious for the bus to depart. Officer Ordaz, furthermore,

noted that Hernandez guarded her suitcase "in a possessive manner."

Moreover, Officer Ordaz stood behind Hernandez in the passenger

line and observed that she was traveling to Washington, D.C., which

2

is, according to DEA investigation reports, a major "drug demand

city."

Officer Ordaz lost visual contact with Hernandez when he was

called away by another officer. Later, when Officer Ordaz's

attention was returned to Hernandez, he observed that both she and

her suitcase were aboard the Washington bound bus. Officer Ordaz

approached the bus and entered the luggage compartment to search

for Hernandez's suitcase. Although Hernandez's suitcase did not

have any identification tags, Officer Ordaz was able to locate it

because he recalled that the brand name was “Bagmax.” Without

taking the suitcase out of the luggage compartment, Officer Ordaz

picked it up and turned it around. He further manipulated the

suitcase by pressing on the outside of it with his hands. He

observed that it had “something solid or heavy in the center of

it.” At Hernandez's detention hearing, Officer Ordaz testified

that after handling the suitcase and feeling something solid or

heavy in it, he became more suspicious. However, on redirect

examination by the government, Officer Ordaz denied that he became

more suspicious after handling the suitcase.

After manipulating Hernandez's suitcase in the luggage

compartment, Officer Ordaz consulted with other police officers,

and they decided to speak with her. Officer Ordaz then boarded the

bus and approached Hernandez. He identified himself as a police

officer and questioned Hernandez about her travel plans. Officer

Ordaz then asked Hernandez to exit the bus with him. Officer Ordaz

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testified that Hernandez appeared nervous when she was leaving the

bus and that she produced seven one-way bus tickets, all of which

were from Houston to Washington, D.C., issued in Hernandez's name

and paid for with cash.

Hernandez told Officer Ordaz that she had a tan backpack as

well as a suitcase, which she described to him. Officer Ordaz then

pulled Hernandez's suitcase from the luggage compartment and asked

her to identify it. Hernandez told Officer Ordaz that she was

transporting the suitcase for someone else who had given it to her

in San Antonio and that she did not know its contents.

Officer Ordaz asked Hernandez for permission to open her

suitcase, and she consented. However, Hernandez did not know the

combination to the lock on the suitcase. As a result, Officer

Ordaz testified that he pried open the zipper of the suitcase using

either a pen or knife. While inspecting the contents of the

suitcase, Officer Ordaz discovered more than four kilograms of

heroin hidden within socks.

Hernandez initially pled guilty to possessing, with the intent

to distribute, more than one kilogram of heroin. However, prior to

her sentencing, the United States Supreme Court decided Bond v.

United States, 529 U.S. 334, 335 (2000), holding that a “law

enforcement officer's physical manipulation of a bus passenger's

carry-on luggage violated the Fourth Amendment's proscription

against unreasonable searches.” As a result, the district court

4

allowed Hernandez to withdraw her guilty plea.

Hernandez then moved to suppress the heroin. Rather than

holding an evidentiary hearing on the suppression motion, the

parties agreed to let the district court decide on the basis of the

transcript of Hernandez's detention hearing and the DEA's report of

the investigation. Hernandez argued that under Bond, the

manipulation of her suitcase was an illegal search violating the

Fourth Amendment and that the resulting contraband was “fruit of

the poisonous tree” that must be suppressed. See United States v.

Rivas, 157 F.3d 364, 368 (5th Cir. 1998). The government argued

that the contraband should not be suppressed because Officer Ordaz

had consent to search the suitcase, and because of the inevitable

discovery/independent source doctrine.

The district court granted the motion to suppress. The court

concluded that Bond was directly on point and found that

Hernandez's Fourth Amendment rights were violated because Officer

Ordaz searched her suitcase without probable cause and prior to

obtaining consent. The court determined that the inevitable

discovery/independent source doctrine did not apply because it was

clear that the officers were not pursuing a substantial alternative

line of investigation when the suitcase was being search. The

court noted that no one had reported that drug trafficking was

occurring at the bus station, much less that Hernandez might be

involved. Also, there were no drug-sniffing dogs present to alert

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the officers to Hernandez's suitcase. Notably, the court

characterized Officer Ordaz's testimony that his suspicion

concerning Hernandez did not increase after he had manipulated her

suitcase as “untruthful.” The reasons the district court concluded

Ordaz was lying were that (a) it is “incredible” that feeling

something suspicious in the bag did not increase Ordaz's

suspicions; and (b) Ordaz gave inconsistent testimony on this

point.

Furthermore, the court found that Officer Ordaz “was

suspicious of Hernandez only because she looked nervous, she was

anxious, her suitcase appeared heavy, the suitcase did not have an

identification tag and the suitcase appeared new.” However, the

court noted that “none of these observations alone, or together,

rose beyond suspicion.” Rather, according to the court, those

characteristics could have been observed from watching “an innocent

person who is not engaged in drug trafficking.” As a result, the

court found “incredible officer Ordaz's testimony that his

suspicions were unaffected by his 'touching and feeling' of the

'Bagmax' suitcase.”

The court also concluded that Hernandez's subsequent consent

did not cure the earlier violation. However, the court made no

findings regarding the voluntariness of Hernandez's consent. The

government appeals the district court's ruling.

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II. STANDARD OF REVIEW

The district court's determination of fact in ruling on a

motion to suppress are accepted unless the court's findings are

clearly erroneous. United States v. Jones, 234 F.3d 234, 239 (5th

Cir. 2000). A finding is clearly erroneous if the court is left

with the "definite and firm conviction that a mistake has been

committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573

(1985) (quoting United States v. United States Gypsum Co., 333 U.S.

364, 395 (1948)). Questions of law are reviewed de novo. Jones,

234 F.3d at 239. The court views the evidence in the light most

favorable to the prevailing party, which in this case is the

defendant. Id.

III. Discussion

The government appeals the district court's grant of

Hernandez's motion to suppress the heroin seized after searching

her suitcase. We note that the government does not argue on appeal

that the district court erred in concluding that the physical

manipulation of Hernandez's suitcase was an illegal search under

the Supreme Court's decision in Bond. It is well established that

issues raised before the district court but not presented on appeal

are waived. HC Gun & Knife Shows, Inc. v. City of Houston, 201

F.3d 544, 548 (5th Cir. 2000). Therefore, we need not consider

that issue in detail because the government has effectively

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conceded that Officer Ordaz's manipulation of the suitcase was an

illegal search.

The threshold question for this court is whether Hernandez's

subsequent consent to search her luggage cured any possible Fourth

Amendment violation. When a person gives consent to search, that

consent “may, but does not necessarily, dissipate the taint” of a

prior Fourth Amendment violation. United States v. Chavez-

Villarreal, 3 F.3d 124, 127 (5th Cir. 1993). The admissibility of

the challenged evidence “turns on a two-pronged inquiry: 1)

whether the consent was voluntarily given; and 2) whether the

consent was an independent act of free will.” Jones, 234 F.3d at

242 (citing Chavez-Villarreal, 3 F.3d at 127). The first prong of

this inquiry “focuses on coercion, the second on causal connection

with the constitutional violation.” Chavez-Villarreal, 3 F.3d at

127.

To determine whether consent was voluntarily given, the court

uses a six factor test: 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

consent; 5) the defendant's education and intelligence; and 6) the

defendant's belief that no incriminating evidence will be found.

Jones, 234 F.3d at 242 (citing United States v. Shabazz, 993 F.2d

431, 438 (5th Cir. 1993)). No single factor in this test is

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dispositive. Id.

To determine whether the defendant's consent was an

independent act of free will, breaking the causal chain between the

consent and the constitutional violation, we must consider three

factors: 1) the temporal proximity of the illegal conduct and the

consent; 2) the presence of intervening circumstances; and 3) the

purpose and the flagrancy of the initial misconduct. Jones, 234

F.3d at 243 (citing Chavez-Villarreal, 3 F.3d at 128).

A. Voluntariness of Consent

Turning to the first prong of the test, we find that

Hernandez's consent was voluntarily given. First, Hernandez's

custodial status was voluntary. Hernandez maintains that she did

not feel free to leave for Washington, D.C., after having a police

officer board the bus where she was seated, identify himself, and

then ask her to disembark from the bus. However, Hernandez was not

in custody when she consented to leave the bus or gave her consent

for the suitcase to be searched. She had not been arrested and

there is nothing in the record to suggest that she did not feel she

could refuse to give her consent or speak with Officer Ordaz. See

United States v. Cooper, 43 F.3d 140, 146 (5th Cir. 1995) (finding,

under similar circumstances, that because a reasonable person would

have felt free to decline the officer’s request, the initial

contact with the defendant was a legitimate and completely

consensual citizen-police encounter). Approaching someone who is

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in a public place, identifying oneself as a police officer, and

asking questions does not constitute a seizure. United States v.

Gonzales, 842 F.2d 748, 752 (5th Cir. 1988) (citing United States

v. Hanson, 801 F.2d 757, 761 (5th Cir. 1986)).

Second, Officer Ordaz's actions were not coercive. Hernandez

contends that Officer Ordaz's actions of following her around in

the bus station was intimidating and, thus, coercive. However,

there is no evidence in the record to indicate that Hernandez even

knew she was being observed by police officers. Officer Ordaz

boarded the bus by himself. He did not display a weapon and he did

not attempt to threaten Hernandez in any way.

Third, Hernandez's cooperation with the police was

substantial. Hernandez argues to the contrary. She notes that she

did not give Officer Ordaz the combination to her suitcase and that

she falsely stated that there were no drugs in the suitcase and

that she did not pack the suitcase. Nevertheless, Hernandez

voluntarily agreed to get off the bus with Officer Ordaz. She

willingly identified her suitcase and gave permission for Officer

Ordaz to search it. There is nothing in the record that indicates

Hernandez displayed any hostile actions toward any police officer

or that she attempted to frustrate their investigation in any

considerable manner.

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Fourth, we find that it is not clear from the record whether

Hernandez was aware of her right to refuse consent. The record

indicates that Officer Ordaz did not inform her that she did not

have to disembark from the bus upon his request or that she did not

have to consent to the search of her suitcase. However, this

factor is but one of six to be considered by this court. United

States v. Gonzales, 79 F.3d 413, 421 (5th Cir. 1996). And, the

government is not required to show that the defendant was aware of

her right of refusal. See Gonzales, 842 F.2d at 755 (finding that

“apprising” suspect of the right to refuse consent is not required

to render the consent voluntary”).

Fifth, the record indicates that Hernandez is well educated.

Hernandez contends that she did not have any education or training

in police-civilian interaction. This is not surprising. Most

civilians do not have that type of education. However, Hernandez

has graduated from medical school and claims to have been on her

way to Washington, D.C., where she intended to pursue further

medical training. In addition, she is conversant in both Spanish

and English. There is nothing to indicate that a lack of education

impacted the voluntariness of her consent.

Sixth, it is likely Hernandez knew that incriminating evidence

would be found. However, if she did not know of any drugs inside

the suitcase as she initially claimed, there would have been no

reason for her to deny consent for a search. Thus, there is

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nothing under this factor to indicate that her consent was not

voluntary.

Based on the six factors discussed above, we find that

Hernandez voluntarily consented to having the police search her

suitcase. However, we must still determine whether the consent was

an independent act of free will. In other words, we must consider

whether the causal connection between the constitutional violation

and Hernandez's consent was sufficiently broken.

B. Consent as an Independent Act of Free Will

To determine whether the causal connection between the

constitutional violation and Hernandez's consent was sufficiently

broken, we must apply the three factors under the second prong of

the admissibility test, which were already mentioned above. Having

done that below, we find that there was not a sufficient break in

the causal connection between the initial search of Hernandez's

suitcase and the later search to which she consented. Therefore,

even though Hernandez voluntarily consented to Officer Ordaz’s

opening her suitcase and searching it, her consent did not cure the

Fourth Amendment violation caused by Officer Ordaz's prior

manipulation of the suitcase.

First, there was a close temporal proximity between the

illegal search of Hernandez's suitcase and her removal from the bus

and the subsequent search with Hernandez's consent. Officer

Ordaz's initial manipulation of Hernandez's suitcase and

12

Hernandez's consent were closely related in time. The government

points to no intervening circumstances.

The police misconduct, however, was not flagrant. Officer

Ordaz's physical manipulation of the suitcase likely would not have

been considered a search under Fifth Circuit precedent at the time.

Nevertheless, consideration of the above three factors leads this

court to conclude that the causal connection between the violation

and the consent was not broken. Therefore, we agree with the

district court's finding that it was only after Officer Ordaz had

manipulated the suitcase and had felt what he thought were

narcotics that he decided to approach Hernandez and ask her for

consent to search the suitcase.

Rather than consider the second prong of the test used to

determine whether challenged evidence is admissible, the government

cites United States v. Ibarra-Sanchez, 199 F.3d 753, 761 (5th Cir.

1999) (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963))

for the proposition that, “To warrant suppression, the challenged

evidence must have been obtained 'by exploitation of [the alleged]

illegality.'” In Ibarra-Sanchez, the police officers made a felony

stop of a van. As the officers approached the vehicle, they

smelled an odor of marijuana and decided to conduct a “protective

sweep” under Terry v. Ohio, 392 U.S. 1 (1968). They drew their

weapons, ordered the passengers out of the van, handcuffed them,

and placed them in the back of the police cars. Ibarra-Sanchez,

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199 F.3d at 757. The defendants argued that the officers' show of

force “converted a Terry stop based on reasonable suspicion into a

full-blown arrest for which the officers had no probable cause.”

Id. at 760-61. The court, however, held the that there was no

causal link between the alleged arrest and the evidence of

marijuana because the police had probable cause to search the van

for drugs, and “it made no difference to the ultimate result

whether [the passengers] stood by the side of the road or sat

handcuffed in police cars.” Id. at 762.

In the instant case, however, the illegal search did make a

difference. The district court found that Officer Ordaz became

sufficiently suspicious to engage Hernandez in conversation only

after he had detected a hard, heavy item in the suitcase. We

cannot conclude that this factual finding is clearly erroneous

because Officer Ordaz contradicted himself when he was asked about

how the manipulation of the suitcase affected the investigation.

The district court rejected Officer Ordaz's assertion that he had

already decided to approach Hernandez before manipulating the

suitcase and that his suspicions were unaffected by the illegal

search.

The government also cites the Sixth Circuit's decision in

United States v. Flowal, 234 F.3d 932 (6th Cir. 2000). In Flowal,

DEA agents were informed that an airline passenger en route from

Los Angeles to Fort Wayne, Indiana, matched a drug-courier profile.

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Id. at 934. The agents intercepted Flowal's luggage while he was

waiting for a connecting flight in Cincinnati. Id. The agents

shook the luggage to see if anything moved around, but they did not

discover anything suspicious. Id. In addition, a drug-sniffing

dog did not alert the agents to any drugs inside the luggage. Id.

Nevertheless, the agents approached Flowal and asked him for

consent to search his luggage, which he authorized. Id. Flowal

did not have a key to the luggage locks, so the officers had to

open the bag by alternative means. Id. Inside the luggage, the

officers found over five kilograms of cocaine. Id.

Flowal, citing Bond, claimed that the officers had violated

his Fourth Amendment rights when they shook and pushed on the

luggage to determine if there might be anything suspicious inside.

The Sixth Circuit disagreed and explained that

the search of Flowal's luggage was not

unconstitutional under Bond. The officers investi-

gated Flowal's luggage because he matched the drug

courier profile, not because they had felt

something suspicious in it. In other words, unlike

the agents in Bond, the officers in this case had a

reasonable belief that the luggage could contain

contraband before ever touching it. In fact,

neither the officers' prodding of the luggage nor

the drug-sniffing dog revealed anything suspicious,

hence the reason the officers approached Flowal and

obtained his consent to search the bags.

Flowal, 234 F.3d at 935. Flowal, however, is inapposite to

Hernandez's case. As we have already noted, in Hernandez's case

the district court found that Officer Ordaz decided to approach

15

Hernandez only after he had felt something suspicious in her

suitcase. There is no evidence that Officer Ordaz believed

Hernandez's suitcase contained drugs before he manipulated it.

IV. CONCLUSION

For the foregoing reasons, we hold that Hernandez's subsequent

consent to search her suitcase did not cure the Fourth Amendment

violation resulting from Officer Ordaz's prior manipulation of the

suitcase. The judgment of the district court is AFFIRMED.

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EDITH H. JONES, dissenting:

The panel majority here concludes that Hernandez

voluntarily consented to the search of the black suitcase, but her

consent did not overcome the taint of the suitcase’s

unconstitutional investigative squeeze by Officer Ordaz. Applying

the exclusionary rule, they hold that evidence of 4 kilograms of

cocaine from the drug seizure must be suppressed. With due

respect, I dissent. I believe Hernandez’s consent was a product of

her free will and not of the exploitation of the unconstitutional

conduct.

The exclusionary rule’s primary purpose is to discourage

unconstitutional police misconduct. See, e.g., Illinois v. Krull,

480 U.S. 340, 347, 107 S.Ct. 1160, 1165 (1987). Thus, evidence may

be suppressed when it has been obtained directly or indirectly

through illegal police activity. Wong Sun v. United States, 371

U.S. 471, 484, 83 S.Ct. 407, 416 (1963). The exclusionary rule is

not, however, employed “when the nexus between the illegal police

activity and attainment of the evidence is sufficiently attenuated

so that the taint resulting from the misconduct is dissipated.”

United States v. Sheppard, 901 F.2d 1230, 1234 (5th Cir. 1990)

(citing Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417). When a

suspect voluntarily consents to a search that reveals the

incriminating evidence, this may, but does not necessarily,

17

overcome the taint of the illegal police activity. Brown v.

Illinois, 422 U.S. 590, 604-05, 95 S.Ct. 2254, 2261-62 (1975).

The majority opinion follows these authorities and

considers both the voluntariness of the suspect’s consent and

whether the consent represented an independent act of free will.

United States v. Chavez-Villareal, 3 F.3d 124, 127 (5th Cir. 1993).

Factors that bear on the latter issue, which the Supreme Court has

also characterized as whether the consent was based on exploitation

of illegality,1 include: the temporal proximity of the illegal

conduct and the consent, intervening circumstances, and

“particularly, the purpose and flagrancy of official misconduct.”

Rawlings v. Kentucky, 448 U.S. 98, 107-09, 100 S.Ct. 2556, 2562-64

(1980). (quoting Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62).

While the majority opinion finds Hernandez’s consent to

have been voluntary, it denies that her consent was an independent

act of free will based solely on the factors of close temporal

proximity with the bag squeeze, and no proof by the government of

intervening circumstances. The majority concede that the officer’s

conduct in squeezing Hernandez’s checked suitcase was not flagrant

(and did not even violate Fifth Circuit law at the time),2 but they

1

See Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417.

2

The United States conceded arguendo a Fourth Amendment

violation at oral argument, but it is far from certain that the

Supreme Court’s decision in Bond v. United States, 529 U.S. 334,

120 S.Ct. 1462 (2000), extends to the manipulation of the exterior

of luggage consigned to transportation companies’ baggage handling

operations. In this court, manipulation of suitcases delivered to

18

ignore the Supreme Court’s statement that this last circumstance is

“particularly” important. See Brown, 422 U.S. at 603-04, 95 S.Ct.

at 2261-62. In my view, the majority failed properly to balance

these three factors.

This case differs critically from other Fifth Circuit

cases in which the court concluded that consent was not the product

of a suspect’s free will. All of those cases involved prolonged

illegal detention of suspects pursuant to traffic stops. United

States v. Jones, 234 F.3d 234, 241 (5th Cir. 2000); United States

v. Dortch, 199 F.3d 193, 201 (5th Cir. 1999); United States v.

Chavez-Villareal, supra. In those cases, the suspects were not

free to leave the roadside; identification papers or drivers’

licenses had been retained by the law officers; and the suspects

had to be aware that they were under investigation for crimes other

than the minor traffic violations for which they were stopped. The

temporal proximity, indeed simultaneity, of the illegal detentions

and the suspects’ subsequent consents did not simply exist. As a

matter of law, we implied, it caused them to consent, for all

practical purposes, because the illegal detentions continued until

the baggage handling area (as opposed to those kept with the

passenger in an on-board overhead compartment), has been held

constitutional for some years. See United States v. Karman, 849

F.2d 928 (5th Cir. 1988).

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they gave consent.3 In Chavez, the court pointed out the impact of

the coercive police detention conduct. Chavez, 3 F.3d at 127.

Here, however, temporal proximity did not function in the

same way, since Hernandez never knew her bag had been squeezed or

investigated. One of our cases makes precisely this point,

emphasizing that consent to search was effective where the suspect

who gave consent did not know of the prior police misconduct.

United States v. Richard, 994 F.2d 244, 252 (5th Cir. 1993). And

in any event, temporal proximity alone is not determinative of

whether the consent was a product of the suspect’s independent free

will. See Kelley, 981 F.2d at 1471.

Second, while Hernandez was not told that she was free to

leave or could refuse consent to search, she was not detained

illegally. The police did not hold onto her I.D. or her tickets.

There is no causal connection between her giving of consent and the

illegal conduct in squeezing the suitcase. As noted, illegal

detention is the critical occurrence in all of the cases in which

the exclusionary rule was ultimately applied.

Third, even the illegality of the detention and the

temporal proximity are not determinative where the police did not

3

It is true, of course, that an illegal detention alone does

not preclude a finding of voluntariness. See, e.g., United States

v. Kelley, 981 F.2d 1464, 1471 (5th Cir. 1993); see also United

States v. Navarro, 169 F.3d 228, 231 (5th Cir. 1999). In both

these cases, this court applied the Brown factors and held that the

consents to search purged the taint of any possible Fourth

Amendment violation. See also Rawlings v. Kentucky, supra.

20

engage in flagrant misconduct or exploit their violations. The

Supreme Court bears out this calculus in Rawlings v. Kentucky,

where the suspect confessed “after being in what was assumed to be

an illegal detention for forty-five minutes. Applying the

attenuation exception to the exclusionary rule, the Court

emphasized the informal nature of the detention.” See Sheppard,

901 F.2d at 1235, n.10 (summarizing Rawlings). The Court also

pointed out that the officers there appeared to be acting in good

faith and unaware that their conduct might violate the Fourth

Amendment. Rawlings, 448 U.S. at 110-111, 100 S.Ct. at 2564. The

Court concluded:

. . . . the conduct of the police here does not rise to the

level of conscious or flagrant misconduct requiring

prophylactic exclusion of petitioner’s statements.

Rawlings, id.

The majority concede that the officers’ conduct here was

hardly flagrant. On the contrary, they were almost surely

following then-applicable Fifth Circuit law. They were not trying

to “exploit” a Fourth Amendment violation when they questioned

Hernandez and obtained her consent to search the suitcase. This

“particularly” relevant factor should weigh heavily in favor of the

government’s position.

Finally, it seems that rather than there being no

intervening circumstances,4 the single circumstance that expressly

4

Among such intervening circumstances are the giving of Miranda

warnings, Brown v. Illinois, supra; and telling the suspect he

21

attenuates the illegal conduct from Hernandez’s consent is the

separateness of the two events. Unlike all the other cases where

this court has suppressed evidence, Hernandez’s consent was not

precipitated by illegal detention or her awareness of any illegal

conduct by the police. In no sense can it be concluded that her

free will was “overborne” by the officer’s previous conduct.

Likewise, this court held that consent to search obtained from a

person who was unaware of another person’s involuntary consent was

based on intervening circumstances. United States v. Richard,

supra.

As the ultimate inquiry for the attenuation exception is

whether the suspect consented as an independent act of free will,

I fail to see how the majority find otherwise. Applying the

exclusionary rule to overcome Hernandez’s consent makes no sense

here.

For these reasons, I would REVERSE the district court’s

judgment.

could refuse to consent, Kelley, supra.

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