On February 15, 2013, the Fifth Circuit Court of Appeals decided the United States v. Gonzalez-Garcia [i], which is instructive regarding the law related to consent to search obtained while a person is in custody. The facts of Gonzalez, taken directly from the case, are as follows:
Federal agents suspected that criminal activity was afoot at a house in McAllen, Texas and began surveilling the residence. Agents observed several details that they believed to be suggestive of drug activity, including that the house’s yard was “unkempt,” several vehicles in front of the house had temporary license plates, and persons at the house stored mini-vans in the house’s garage while leaving “luxury vehicles” in the driveway.
Agents later observed a black Mercedes-Benz drive away from the residence soon after a passenger “put . . . what appeared to be luggage” in the vehicle. Agents followed the Mercedes, which eventually pulled into a Target parking lot. Its driver made a brief phone call, drove out of the lot, and sped off—causing the agents to abandon their pursuit.
Around the same time as the phone call, Gonzalez left the residence. He walked quickly away from the house, “looking back and forth . . . like he was nervous.” ICE agent Michael Ramirez drove past Gonzalez, parked, and exited his pickup truck. Ramirez approached Gonzalez and asked whether Gonzalez was in the country legally. Gonzalez admitted that he was not. Ramirez then handcuffed him, placed him in the front passenger seat of the truck, and drove toward the house.
During the drive, Ramirez began a “conversation” with Gonzalez. Ramirez asked if Gonzalez “was guarding drugs in [the] house;” Gonzalez responded, “yes.” Ramirez asked, “[s]o to be clear, there are drugs in that house right now;” Gonzalez again responded, “yes.” At that time, Gonzalez—sitting, in handcuffs, in a law-enforcement vehicle—had not received Miranda warnings. The government concedes that the district court properly suppressed these statements.
About the same time as Gonzalez’s second “yes,” Ramirez claims to have said “hold on” and reached for his Miranda rights card. Ramirez decided not to read Gonzalez his Miranda rights, however, because as he reached for his Miranda card, Gonzalez requested a lawyer. Soon after the request, case agent Michael Renaud approached Ramirez’s car window.
Ramirez informed Renaud that Gonzalez desired counsel. Renaud then asked Ramirez to inquire whether Gonzalez would consent to a search of the house. According to Ramirez, the following transpired: Ramirez asked Gonzalez for consent. Gonzalez did not respond and “looked like he was thinking about it.” Perhaps a minute later, Ramirez asked again. Gonzalez responded, asking, “Well, what can you do for me? What’s in it for me?” After Ramirez said he might advise the prosecutor of Gonzalez’s cooperation, Gonzalez “just kind of looked like he was deciding, you know, kind of a sigh here or there.” Ramirez again sought consent; Gonzalez again asked, “What can you do for me?;” and Ramirez again mentioned advising the prosecutor of Gonzalez’s cooperation. A few seconds later, Ramirez stepped out of the truck and Renaud entered. Minutes later Ramirez reentered the truck with “the understanding that [Gonzalez] was still thinking about it.” Ramirez then asked, “Okay, we need to know, Mr. Gonzalez, will you consent to search the house?” After Gonzalez responded, “yes,” he signed a consent form that Ramirez had read to him.
Agent Renaud believed that he and Ramirez spent five to seven minutes seeking permission to search. He testified at a suppression hearing that Gonzalez was “not nervous, not afraid, [and] not anxious” when he consented. After consenting, Gonzalez turned over a key to the house and instructed agents on how to open the door. A search of the house revealed bundles of marijuana—about 2,043 kilograms, or roughly two-and-one-quarter tons, in all. [ii]
Gonzalez was subsequently charged with federal drug offenses, and he filed a motion to suppress his statements and the drugs. The district court suppressed all incriminating statements made by Gonzalez but denied the motion to suppress relating to the drugs.
Gonzalez entered a conditional plea and appealed the denial of his motion to suppress to the Fifth Circuit Court of Appeals. The appeal was based on two theories. First, Gonzalez argued that consent was not valid because it was obtained after he had requested counsel, which was a violation of Edwards v. Arizona [iii]. Second, he argued that the consent was a product of his statements which were obtained in violation of Miranda.
The court began by examining the law related to Gonzalez’s first argument of whether consent obtained after a person has requested counsel is invalid based upon a violation of Edwards v. Arizona.
First the court noted that Miranda v. Arizona [iv] required various measures to ensure that a person’s Fifth Amendmentright against compelled, self incriminating statements is not violated during custodial questioning. Later, in Edwards v. Arizona, the Supreme Court held that statements made after a person has requested counsel are not admissible against a defendant. The court stated:
Edwards provides that “when an accused has invoked his right to have counsel present during custodial interrogation . . . [he] is not subject to further interrogation by the authorities until counsel has been made available to him.” This “prophylactic” rule is designed to “prevent police from badgering a defendant into waiving his previously asserted Miranda rights” and protects “a suspect’s voluntary choice not to speak outside his lawyer’s presence.” The rationale undergirding Edwards is that “once a suspect indicates that ‘he is not capable of undergoing [custodial] questioning without advice of counsel,’ ‘any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is . . . not the purely voluntary choice of the suspect. [v]
The court also noted that, under the Fourth Amendment:
A warrantless search is per se unreasonable, subject to certain exceptions. The only exception pertinent here is “a search that is conducted pursuant to consent.” Consent to search need only be given voluntarily; unlike the knowing waiver of Miranda rights, voluntariness does not “require proof of knowledge of a right to refuse.” [vi]
The court then noted that, even if the agents violated the rule set forth in Edwards, suppression of the drugs would still not be the appropriate remedy, since Miranda and Edwards only apply to testimonial evidence. Non-testimonialevidence obtained in violation of Miranda and Edwards need not be suppressed. Specifically, the court stated:
A violation of the prophylactic Miranda rule does not require “suppression of the [nontestimonial] physical fruits of the suspect’s unwarned but voluntary statements.” Nor does a violation of Edwards’s“second layer of prophylaxis.” Because the marijuana seized is physical, nontestimonial evidence, an Edwards violation itself would not justify suppression. [vii]
The second argument proffered by Gonzalez was that the preceding Miranda violations rendered his consent involuntary. It appeared that Gonzalez argued that consent is involuntary whenever the police use an unwarned statement to obtain consent to search. The court responded to this argument by stating:
[A] categorical rule is inconsistent with the multi-factor, holistic approach to assessing voluntariness that this Court and the Supreme Court have endorsed. Gonzalez’s position appears to be an analog of the “cat out of the bag” theory rejected in Oregon v. Elstad. Just as a confession following an unwarned confession may be voluntary, consent following an unwarned confession may be voluntary. [viii]
As such, the Miranda violation did not automatically render the consent involuntary.
Thus, the court of appeals affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 11-41365, 2013 U.S. App. LEXIS 3366
[ii] Id. at 1-4
[iii] 451 U.S. 477 (1981)
[iv] 384 U.S. 436 (1966)
[v] Gonzalez at 7-8
[vi] Id. at 8-9 (internal citations omitted)
[vii] Id. at 10 (see United States v. Patane, 542 U.S. 630, 634, 124 S. Ct. 2620, 159 L. Ed. 2d 667 (2004); McNeil v. Wisconsin, 501 U.S. 171, 176, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991); see United States v. Cannon, 981 F.2d 785, 789 (5th Cir. 1993)
[viii] Id. at 12-13 (internal citations omitted)