Friday, January 26, 2007

Trucker's Consent to Search Rig Was Voluntary, Even Though He Didn't Know He Could Refuse and Surely Knew Marijuana Would Be Found

United States v. Arias-Robles, N0. 05-51494 (5th Cir. Jan. 25, 2007) (Higginbotham, Smith, DeMoss)

A Texas DPS trooper pulled over Arias's 18-wheeler because he thought the tires sounded defective. After performing a "level two" safety inspection, the trooper found a couple of "out-of-service" violations (bad tires and delinquent log book). The trooper tried to print out a copy of the inspection report and a citation from the printer in his patrol car, but the printer wouldn't work. Arias followed the trooper to the nearby DPS office, where the trooper was able to get his printer to work. The trooper issued Arias the citation and inspection report, and told him that he would have to go to a nearby truck stop to resolve the out-of-service violations (one of which required him to chill for at least eight hours) before proceeding on his way. The trooper then told Arias that he was free to go. Immediately thereafter, the trooper expressed curiosity about some discrepancies in Arias's log book, and also mentioned that he knew about Arias's prior drug arrest. He also asked Arias if he could search the truck, and Arias consented. There turned out to be several bricks of marijuana hidden in the tractor's sleeper compartment.

Arias moved to suppress the marijuana on several grounds, including that his consent to search was involuntary. The district court denied the motion, and Arias appealed on the voluntariness issue alone.

The court held that the district court did not err in finding that Arias voluntarily consented to the search of his rig, based on the following factors comprising the totality of circumstances: 1) the trooper told Arias he was free to go; 2) there was no coercion; 3) Arias was cooperative; 4) although the trooper didn't inform Arias that he could refuse consent to search, that factor isn't dispositive; 5) Arias had some education and was intelligent enough to understand what was going on; and 6) even though Arias had to know that the trooper would find marijuana, that factor is also not dispositive. The court then concludes with this intriguing comment:
Concededly, under our cases a defendant faces a high hurdle in his effort to escape an affirmative response to an officer’s request for permission. At the least we are persuaded that our test ought to be skeptical of a defendant’s alleged consent when the defendant persuades that he did not know that he had a right to refuse the request for consent to search and it is plain from the facts that the contraband would likely be found. That said, we cannot conclude that such recurring circumstances so often produce a coerced consent that we ought to find them inherently coercive. There is no “Miranda requirement” attending a simple request for permission to search.

Slip op. at 8-9 (emphasis added). Sounds like a clear signal for district courts to view such "consent" more circumspectly.


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