U.S. v. Tompkins

Decision Date25 November 1997
Docket NumberNo. 97-50237,97-50237
Citation130 F.3d 117
PartiesUNITED STATES of America, Plaintiff-Appellee, v. David Roy TOMPKINS, a/k/a David Roy Yates, Defendant-Appellant. Summary Calendar.
CourtU.S. Court of Appeals — Fifth Circuit

Richard L. Durbin, Jr. and Mark Randolph Stelmach, Asst. U.S. Attys., San Antonio, TX, for Plaintiff-Appellee.

Walter Mabry Reaves, Jr., West, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant David Roy Tompkins appeals his 21 U.S.C. § 841(a)(1) conviction for possession with intent to distribute methamphetamine, arguing that some of the evidence used against him was the product of an unlawful search and, as such, was erroneously admitted at trial. Tompkins' initial contention is that this circuit should revise its standard of review of a district court's ultimate determination that consent to search was voluntary--changing from clear error to de novo--basing his argument on a recent Supreme Court opinion. 1 Finding Tompkins' position on the appropriate standard of review fallacious, and perceiving no reversible error in the district court's findings and holding, we affirm.

I. FACTS AND PROCEEDINGS

Tompkins was convicted following a bench trial for possession with intent to distribute methamphetamine and sentenced to a sixty-month term of imprisonment, a four-year term of supervised release, and a $3,000 fine. Prior to trial, Tompkins filed a motion to suppress evidence seized during a search of the motel room that he was occupying when arrested.

Tompkins argued for suppression on the ground that his consent to the search--conducted without a warrant--was not voluntarily The evidence introduced at the suppression hearing revealed the following facts surrounding Tompkins' arrest. An anonymous informant, through a "Crimestoppers" hotline, informed law enforcement authorities that Tompkins had checked into a La Quinta Motel room and that he had a large quantity of methamphetamine with him at the time. According to the informant, Tompkins had transported the methamphetamine from California to Texas for distribution. The informant also indicated that Tompkins was accompanied by a woman, Kimberly Rendon, who might have been wanted by Bell County authorities. And the informant provided physical descriptions of both Tompkins and Rendon.

given; rather, insists Tompkins, his consent was obtained through the arresting officer's threat to secure the motel room and procure a search warrant. The officer's threat, says Tompkins, gave him the impression that a search was inevitable, thereby causing him to believe that he had no choice but to consent. So induced, asserts Tompkins, his consent was coerced, and the motel-room evidence was obtained by means of an unlawful search. As a result, concludes Tompkins, the district court erred reversibly in denying his motion to suppress and admitting the evidence at trial.

Acting on that information, Officer Michael Brown of the Killeen Police Department contacted the La Quinta desk clerk to confirm that Tompkins was registered at the motel. At first the clerk was unable to confirm Tompkins' registration, but a subsequent check revealed that Tompkins--originally thought to have been registered to room 234--had been given room 236. The La Quinta night manager called Officer Brown at 3:30 a.m., shortly after Tompkins and those accompanying him returned to the motel. Brown went to the motel and kept Tompkins' room under surveillance until its lights were dimmed, then departed. He returned to the motel prior to check-out time the next morning and resumed his surveillance.

Officer Brown saw three women--one of whom matched the description of Rendon--leave the room, enter a vehicle, and drive away. While Brown followed the vehicle he had a check run on Rendon. He then stopped the car after observing the driver commit a traffic violation and called for backup. Rendon was a passenger in the vehicle. Brown told the occupants why he had stopped their car, and also related the information that he had received regarding the methamphetamine.

The driver consented to a search of the vehicle, and a drug dog alerted to a cosmetic case that Officer Brown had seen one of the passengers carrying out of Tompkins' motel room. The officer found a baggie containing methamphetamine residue in the cosmetic case. One of the women then told Officer Brown that there was methamphetamine in Tompkins' room. Rendon was arrested on an outstanding warrant, but the other women were released. Fearing that the released women might contact Tompkins, Officer Brown quickly returned to the motel with another officer.

When he arrived, Officer Brown knocked on Tompkins' door and identified himself as a police officer. Tompkins presented his identification on request but refused to allow the officers to enter the room. Brown told Tompkins about the anonymous tip and Rendon's arrest. When Tompkins heard this he was "visibly shaken." Brown again asked Tompkins for consent to a search of his motel room, informing Tompkins that he could refuse. Tompkins was also told by Brown that the officers would obtain a search warrant for the room if consent were withheld and that Tompkins would be denied access to the room while the warrant was being obtained. Tompkins then agreed to the search and signed a consent form. A distribution quantity of methamphetamine was recovered from the room.

II. ANALYSIS
A. STANDARD OF REVIEW

With regard to a ruling on a motion to suppress, we review "the district court's factual findings for clear error and its ultimate conclusion as to the constitutionality of In Ornelas, the Supreme Court held that a district court's determination of reasonable suspicion and probable cause when evaluating the constitutionality of investigative stops and searches under the Fourth Amendment is subject to a two-tier standard of appellate review: The ultimate conclusion on reasonable suspicion or probable cause--a mixed question of law and fact--is reviewed de novo, whereas the events leading up to the search or seizure--the historical facts--are reviewed for clear error, giving "due weight to inferences drawn from those facts by resident judges and local law enforcement officers." 5

                the law enforcement action de novo." 2  Under the law of this circuit, the voluntariness of a detainee's consent to a warrantless search is a finding of fact to be reviewed for clear error. 3  Despite this long-standing Fifth Circuit standard, Tompkins maintains that, in light of the Supreme Court's recent Ornelas decision, 4 we should re-examine our standard of review of the question whether consent to search is given voluntarily and change to a standard that incorporates de novo review.  We disagree
                

Tompkins notes that the determination whether consent to a warrantless search was voluntary involves applying legal principles to historical facts. 6 Thus, urges Tompkins, voluntariness of consent should be subject to the same two-tier standard of review that Ornelas established for reasonable suspicion and probable cause--insisting that voluntariness of consent too is a mixed question of law and fact under the Fourth Amendment. 7

We decline Tompkins' invitation to employ Ornelas' two-tier standard when we review a district court's determination whether consent to search was given voluntarily. The Supreme Court reiterated its deferential standard of review for Fourth Amendment voluntariness determinations in Ohio v. Robinette, 8 a post-Ornelas decision. The Robinette Court noted that voluntariness of consent to search is a question of fact; 9 as such, it does not trigger the de novo review mandated by the Supreme Court in Ornelas for mixed questions of law and fact. 10 The

Supreme Court's refusal to depart from its established precedent, 11 coupled with the virtually monolithic position of the circuits in affording deferential review to voluntariness inquiries raised by consensual searches, 12 persuades us that Tompkins' reliance on Ornelas to mandate a change in our clear error standard of review is misplaced. 13

B. APPLICABLE LAW

A search conducted pursuant to consent is one of the well-settled exceptions to the Fourth Amendment's warrant requirement. 14 In relying upon the consensual search exception, the government must prove, by a preponderance of the evidence, that consent was freely and voluntarily given. 15 Voluntariness is determined from the totality of the circumstances surrounding the search; 16 relevant factors include:

(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 to consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found. 17

Although all six factors are relevant, "no single factor is dispositive or controlling of the voluntariness issue." 18

Tompkins argues that his consent was coerced in light of the investigating officer's failure, when informing Tompkins of the consequences of his refusal to consent, to distinguish between procuring a search warrant and attempting to procure a search warrant. Tompkins' point is that because he was told by Officer Brown that a warrant would be obtained--not that a warrant would be sought or applied for--Tompkins was given the impression that a search of the motel room was inevitable. This impression, he In support of his argument, Tompkins invites our attention to dicta in United States v. Boukater 20 suggesting that consent might not be voluntary if the investigating officer "either said or implied that defendant might as well consent because a warrant could be quickly obtained if he refused." 21 Tompkins also relies on...

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