Officer Trickery Can Taint Subsequent Admissions or Consent Depending on Circumstances

United States v. Guzman, No. 12-11279 (5th Cir. Jan. 7, 2014) (Higginbotham, Owen, Higginson)

The panel vacates Guzman’s conviction and remands since “the district court expressly declined to make factual findings that may have had a determinative impact on the outcome of the suppression hearing.”  What factual findings did the court refuse to make?  Whether Guzman consented, whether the officer misrepresented his authority to search Guzman’s car, and whether the officer’s misrepresentation rendered Guzman’s statements inadmissible and consent involuntary.  Instead, the court decided that even if the officer tricked Guzman into making an admission, such trickery did not taint the search.

Here’s what happened: Officers arrive at a house based on a tip that meth is being sold there.  Guzman was sitting in a car in the driveway, and he exited the car when the officers approached.  An officer “struck up a conversation” with Guzman, during which Guzman mentioned that he was just released from prison.  In the officer’s version of what happened next, he asked Guzman if he could search his car for drugs; Guzman consented, saying there were no drugs but there was a handgun.  In Guzman’s version (corroborated by the audio recording of his later interrogation), the officer said he was going to search the car, and Guzman responded that there were no drugs but there was a handgun.  The officers found the handgun but no drugs.  Of course, the officers also discovered that Guzman was a convicted felon, and he was then charged with being a felon in possession.

In response to Guzman’s suppression motion, the Government argued that Guzman gave verbal consent or, alternatively, that the search was permissible under the automobile exception since Guzman said he was released from prison and there was a gun in the car.  During closing, the district court asked whether an officer could trick a defendant into making a guilty admission by saying, “I’m going to search your car whether you like it or not.  When I do, am I going to find any contraband?,” and whether a guilty admission would justify probable cause to search the car.  The court decided an officer could do such a thing, which would justify probable cause for the automobile exception to the warrant requirement, and denied the motion to suppress without deciding whether or not Guzman voluntarily consented to the search or whether or not the officer asked for consent or said he was going to search the car.

The panel points out that a false claim of lawful authority could affect the validity of Guzman’s consent and the admissibility of his subsequent statements.  “An inadmissible statement cannot constitute probable cause to support an otherwise illegal search.”  Further, “‘any misrepresentation by the Government is a factor to be considered in evaluating’ whether the defendant’s consent was voluntary.”  The panel clarified that United States v. Andrews, 746 F.2d 247 (5th Cir. 1984), “did not establish a general rule that officers can use trickery to obtain consent” but was a “narrow” decision holding that the Government carried its burden in that case to show that Andrew’s consent was voluntary.

Since the district court did not ask the right legal questions in making its ruling and declined to make the factual findings necessary to resolve the issue, the panel remands to the district court to obtain additional findings.

Note: As an alternative, Guzman argues for the first time on appeal that the automobile exception could not apply to this case because his car was parked in a private driveway.  Even though the panel finds Guzman waived this argument by not raising it at the suppression hearing, the panel notes that this argument does not have clear support in Fifth Circuit precedent when officers believe the home in question was being used for illegal activity.