U.S. v. Lattimore

• Decision Date: 25 June 1996
• Docket Number: No. 94-5915,94-5915
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Furman LATTIMORE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 647

87 F.3d 647

UNITED STATES of America, Plaintiff-Appellee, v. Furman LATTIMORE, Jr., Defendant-Appellant.

No. 94-5915.

United States Court of Appeals Fourth Circuit.

Submitted Jan. 9, 1996.

Decided June 25, 1996.

Jack H. Lynn, Greenville, South Carolina, for Appellant. J. Preston Strom, Jr., United States Attorney, David Calhoun Stephens, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER, HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge WILKINS wrote the majority opinion, in which Chief Judge WILKINSON and Judges RUSSELL, WIDENER, NIEMEYER, LUTTIG, and WILLIAMS joined. Judge HALL wrote a dissenting opinion, in which Judges MURNAGHAN, ERVIN, HAMILTON, MICHAEL, and MOTZ joined.

OPINION

WILKINS, Circuit Judge:

Furman Lattimore, Jr. appeals a decision of the district court denying his motion to suppress evidence seized during a consent search of his automobile. Because we cannot conclude that the district court clearly erred in finding that Lattimore's consent to search was freely and voluntarily given, we affirm.

I.

The facts are not seriously disputed. On October 23, 1993, Lattimore was stopped by Trooper Raymond Frock of the South Carolina Department of Public Safety for exceeding the speed limit. Trooper Frock invited Lattimore to accompany him to his patrol vehicle while he prepared a ticket for failure to wear a seat belt and a warning ticket for the speeding violation. Lattimore obliged. After issuing the citations and returning Lattimore's driver's license, and as Lattimore prepared to exit the patrol vehicle, Trooper Frock asked him whether there were any narcotics or contraband in his automobile. Lattimore responded in the negative. Trooper Frock then requested and received Lattimore's oral consent to search the vehicle. ^*

Prior to conducting the search, while Trooper Frock prepared a written consent form, he and Lattimore engaged in a casual discussion about high school football. When Trooper Frock had completed the form, he offered it to Lattimore for his signature, explaining:

Trooper: Okay, you gave me a verbal consent, ... this is written consent, okay. Let me explain this paragraph right here. Says I have [in] no way forced you, threatened you, ... or compelled you 'til [sic] I may search your vehicle. You understand that?

Lattimore: Mm-hmm.

Trooper: I need your signature or an X on the bottom. Again, it's just giving me consent.

Lattimore: On that, what's the difference on that?

Trooper: What [do] you mean?

Lattimore: If I say yes or I say no, it's still....

Trooper: Well, let me explain something to you. I'm on a special team. I travel around the state. This is all I do. I search--

Lattimore: Uh-huh. I was watching that on ...

Trooper: --97 percent of the cars I stop. It don't matter if you're 18 to 80 years old, you're black, white, red, Indian, Hispanic. I don't care what you are. That's all I do. You say you saw it on the news?

[The two discuss a television program showing highway patrol officers.]

Lattimore: Yeah, and I seen where [sic] they pulled a guy over, and they, you know, asked him the same thing you're asking me--whether they could search his car or not. And, um, what's the difference? If you do or you don't, it's gonna happen anyway, right?

Trooper: Not really. If you don't, I feel you're hiding something. Therefore, I'll call a drug dog right up the road to come down here and let him search your car.

Lattimore: That's what I'm saying. It don't really make no difference.

Trooper: Well,--

Lattimore: That's what I'm saying.

Trooper: --there's certain reasons why we do that.

Tape of Encounter Between Trooper Frock and Furman Lattimore, Jr. (Oct. 23, 1993). Following this colloquy, Lattimore signed the consent form. During the search of the vehicle, Trooper Frock discovered a bag containing approximately 95 grams of cocaine base, razor blades, a scale, and plastic bags.

Lattimore subsequently moved to suppress the evidence seized during the search, alleging that he had not voluntarily consented. After hearing testimony from Trooper Frock, receiving the written consent form signed by Lattimore, and viewing the videotape of the encounter, the district court denied the motion to suppress. Although the court noted some concern about Trooper Frock's statement regarding the "drug dog," it ruled that the consent was voluntary, emphasizing:

[T]here was nothing else following that [statement] which indicated that the defendant did not fully understand his right to refuse and in fact went forward and executed the consent form which was subsequent to his verbal consent. And, therefore, the court finds that not only did the defendant understand what his rights were, he voluntarily and understandingly waived his rights ... and that this was a consent search.

J.A. 38. Lattimore subsequently pled guilty to possession with the intent to distribute cocaine base, see 21 U.S.C.A. § 841(a)(1) (West 1981), reserving the right to challenge the denial of the motion to suppress.

Lattimore offers two arguments in support of his contention that the district court erred in denying the motion to suppress. He first claims that his consent to the search was not voluntarily given. Alternatively, Lattimore maintains that Trooper Frock exceeded the permissible scope of the traffic stop and that this illegal detention vitiated his consent to the search. We address them in turn.

II.

The Fourth Amendment prohibits unreasonable searches, and searches conducted without a warrant are per se unreasonable unless a valid exception to the warrant requirement is applicable. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). Voluntary consent to a search is such an exception. Id. Lattimore's primary argument is that the search of his automobile was unreasonable and therefore violative of the Fourth Amendment because his consent to the search was involuntary, that Trooper Frock's threat to utilize a "drug dog" in the event that he refused written permission for the search rendered his consent invalid.

In determining whether consent to search was freely and voluntarily given, the totality of the circumstances surrounding the consent must be examined. See id. at 227, 93 S.Ct. at 2047-48 ("[T]he question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances."). In viewing the totality of the circumstances, it is appropriate to consider the characteristics of the accused (such as age, maturity, education, intelligence, and experience) as well as the conditions under which the consent to search was given (such as the officer's conduct; the number of officers present; and the duration, location, and time of the encounter). See United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976); United States v. Analla, 975 F.2d 119, 125 (4th Cir.1992), cert. denied, 507 U.S. 1033, 113 S.Ct. 1853, 123 L.Ed.2d 476 (1993); United States v. Morrow, 731 F.2d 233, 236 (4th Cir.), cert. denied, 467 U.S. 1230, 104 S.Ct. 2689, 81 L.Ed.2d 883 (1984). Whether the accused knew that he possessed a right to refuse consent also is relevant in determining the voluntariness of consent, although the Government need not demonstrate that the defendant knew of his right to refuse consent to prove that the consent was voluntary. Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2058-59; United States v. Gordon, 895 F.2d 932, 938 (4th Cir.), cert. denied, 498 U.S. 846, 111 S.Ct. 131, 112 L.Ed.2d 98 (1990).

The voluntariness of consent to search is a factual question, and as a reviewing court, we must affirm the determination of the district court unless its finding is clearly erroneous. See United States v. Wilson, 895 F.2d 168, 172 (4th Cir.1990) (per curiam); Gordon, 895 F.2d at 938. And, we have recognized that when the lower court " 'bases a finding of consent on the oral testimony at a suppression hearing, the clearly erroneous standard is particularly strong since the [court] had the opportunity to observe the demeanor of the witnesses.' " Wilson, 895 F.2d at 172 (quoting United States v. Sutton, 850 F.2d 1083, 1086 (5th Cir.1988)). Thus, even when an appellate court is convinced that it would have reached an opposite conclusion had it been charged with making the factual determination in the first instance, and although the temptation to substitute its judgment is particularly seductive when the encounter was recorded, a reviewing court may not reverse the decision of the district court that consent was given voluntarily unless it can be said that the view of the evidence taken by the district court is implausible in light of the entire record. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).

Based on our review of the totality of the surrounding circumstances, we cannot say that the factual finding of the district court that Lattimore's oral consent to the search was voluntary was clearly erroneous. On the date of the search, Lattimore was 29 years old, had a high school education, and held employment with the United States Postal Service. "There is no indication in this record that [Lattimore] was a newcomer to the law...." Watson, 423 U.S. at 424-25, 96 S.Ct. at 828. Furthermore, nothing in the videotaped record of the traffic stop indicates an environment that was coercive or intimidating; to the contrary, Lattimore appeared to be quite relaxed throughout. The incident occurred on a well-travelled highway, during the middle of the afternoon, and was not of inordinate duration. Trooper Frock was the sole officer present when Lattimore granted his consent to search, and at no time did the...