Filed: Aug. 23, 2012
Latest Update: Mar. 26, 2017
Summary: Case: 11-30868 Document: 00511966916 Page: 1 Date Filed: 08/23/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED August 23, 2012 No. 11-30868 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HAROUT ANSOURIAN, Defendant - Appellant. Appeal from the United States District Court for the Middle District of Louisiana USDC 3:09-CR-152-2 Before WIENER, ELROD, and SOUTHWICK, Circuit Judges. PER CURIAM:* Harout Ansour
Summary: Case: 11-30868 Document: 00511966916 Page: 1 Date Filed: 08/23/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED August 23, 2012 No. 11-30868 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HAROUT ANSOURIAN, Defendant - Appellant. Appeal from the United States District Court for the Middle District of Louisiana USDC 3:09-CR-152-2 Before WIENER, ELROD, and SOUTHWICK, Circuit Judges. PER CURIAM:* Harout Ansouri..
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Case: 11-30868 Document: 00511966916 Page: 1 Date Filed: 08/23/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 23, 2012
No. 11-30868
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAROUT ANSOURIAN,
Defendant - Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC 3:09-CR-152-2
Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Harout Ansourian appeals the district court’s denial of his motion to
suppress. Because the district court did not err in finding that Ansourian’s
consent to the search was an independent act of free will, we AFFIRM.
I.
While patrolling the interstate after midnight, Officer Jarod Averette
noticed a pickup truck towing a car on a trailer that was drifting repeatedly into
the adjacent lane. Officer Averette initiated a traffic stop. A video camera inside
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Case: 11-30868 Document: 00511966916 Page: 2 Date Filed: 08/23/2012
the patrol car and a microphone attached to Officer Averette’s clothing recorded
the encounter.
Officer Averette asked the driver, Harout Ansourian, to step out and
accompany him to the front of the patrol car. The officer questioned Ansourian
about his travels, his passenger, Gayk Eskichyan, and the ownership of the
truck, car, and trailer. Ansourian responded that he was driving his truck from
California to Florida, that he borrowed the trailer from a friend, and that
Eskichyan owned the car. Officer Averette then approached Eskichyan who had
remained in the truck and asked similar questions. Eskichyan’s answers
corroborated those of Ansourian. Officer Averette told both men to “hang tight”
for a few minutes while he checked their drivers’ licenses.
Back in his patrol car, Officer Averette turned the camera’s audio off,
called for backup, and ran a computer check. During the suppression hearing,
Officer Averette testified that he told the officers to come to his location and that
he “had a vehicle [he] wanted to search.” The computer check showed that
Ansourian had a prior arrest for first degree murder, Eskichyan had a prior
arrest for carrying a loaded firearm, and both men had been arrested less than
a month earlier for fraud.
Approximately thirteen minutes after Officer Averette entered his patrol
car, he turned the audio back on, exited the vehicle, and asked Ansourian for the
paperwork on the car being towed. Ansourian provided the registration
certificate for the pickup and stated that he could get the car’s documentation.
Officer Averette continued to question Ansourian while examining the pickup’s
registration. Officer Gerardo Almendares arrived and talked with Ansourian
while Officer Averette approached Eskichyan to ask about the car’s paperwork.
Eskichyan explained that it would be difficult to retrieve the paperwork because
the car doors were blocked by the trailer’s fenders.
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Seven minutes after leaving his patrol car, Officer Averette walked back
to Ansourian, returned his license and paperwork, advised him that he was not
going to be ticketed for the traffic violation, and said, “You’re free to go.” Ten
seconds later, Officer Averette asked Ansourian for consent to search
Ansourian’s “stuff.” Ansourian immediately responded, “You’re more than
welcome to,” but told Officer Averette that he and Eskichyan had already spent
three days on the road and were “really in a hurry.” Officer Averette assured
Ansourian that the search “wouldn’t take very long.” Ansourian asked the
officer what he was looking for, and Officer Averette responded that he was
looking for “anything illegal.” Officer Averette then asked again, “Do you mind
if I search your vehicle?” Ansourian answered, “I don’t mind.”
The officers began to search the vehicles. During the search, Ansourian
approached the officers and offered to remove the trailer’s fenders in order to
allow the officers to gain access to the car. He did not attempt to stop the search
or complain about the length of the search. The police recovered $1,300 in cash,
several gift cards, and plastic cards which appeared to be counterfeit hidden in
the truck’s headliner. Inside the car’s trunk, the police found several apparently
counterfeit credit cards, handwritten lists of four-digit personal identification
numbers, small pinhole cameras, credit card readers, and numerous electronic
storage devices.
The officers immediately arrested Ansourian and Eskichyan. A federal
grand jury subsequently indicted both men, charging them with possessing
device-making equipment in violation of 18 U.S.C. § 1029(a)(4), and possessing
15 or more counterfeit access devices in violation of § 1029(a)(3).
Ansourian filed a motion to suppress the evidence seized during the traffic
stop, arguing that he was illegally detained after the computer check was
completed. After a two-day evidentiary hearing, the district court denied the
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motion with a thorough ruling spanning twenty-six pages. The district court
determined that the prolonged detention by Officer Averette was a violation of
the Fourth Amendment because the officer lacked reasonable suspicion of
additional criminal activity warranting further investigation. However, the
district court concluded that the defendant voluntarily consented to the search
and his consent was an independent act of his free will that was sufficient to
dissipate any taint of the unlawful detention.
Ansourian pleaded guilty to the second count in the indictment,
specifically reserving his right to appeal the district court’s order denying his
motion to suppress. The district court sentenced Ansourian to forty-six months
imprisonment, and Ansourian timely filed a notice of appeal.
II.
When reviewing a district court’s denial of a motion to suppress, this court
reviews factual findings for clear error and legal conclusions de novo. United
States v. De Jesus-Batres, 410 F.3d 154, 158 (5th Cir. 2005). “Where a district
court’s denial of a suppression motion is based on live oral testimony, the clearly
erroneous standard is particularly strong because the judge had the opportunity
to observe the demeanor of the witnesses.” United States v. Santiago,
410 F.3d
193, 197 (5th Cir. 2005).
The only issue on appeal is whether Ansourian’s consent was an
independent act of free will. Neither party challenges the district court’s
conclusion that extending the traffic stop after the license check was completed
was unconstitutional. See United States v. Jenson, 462 F.3d 399, 404–06 (5th
Cir. 2006). However, consent to a search may remedy the taint of a
constitutional violation if the consent was both voluntary and an independent
act of free will. United States v. Chavez-Villarreal,
3 F.3d 124, 127–28 (5th Cir.
1993). Ansourian admits that his consent to the search was voluntarily given,
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but he challenges the district court’s finding that it was an independent act of
free will. “Even though voluntarily given, consent does not remove the taint of
an illegal detention if it is the product of that detention and not an independent
act of free will.” Id. This prong focuses on the causal connection between the
consent and the unconstitutional detention. Id. at 127.
We consider three factors to determine whether the consent was an
independent act of free will: “(1) the temporal proximity of the illegal conduct
and the consent; (2) the presence of intervening circumstances; and (3) the
purpose and flagrancy of the initial misconduct.” Jenson, 462 F.3d at 407
(citations omitted).
The first factor weighs in favor of Ansourian. Officer Averette asked for
Ansourian’s consent just ten seconds after telling Ansourian that he was free to
leave and returning his paperwork. Thus, the district court properly concluded
that “the first factor supports a finding that defendant’s consent was not an
independent act of free will.”
The second factor of intervening circumstances indicates the consent was
an independent act of free will. Prior to asking for consent, Officer Averette
communicated to Ansourian that “You’re free to go.” At this point, Officer
Averette also returned Ansourian’s license and registration. We have previously
identified both of these facts as intervening circumstances. See Jenson, 462 F.3d
at 407 (holding that the second factor cut against the government because “there
is no evidence that (a) [the defendant] knew he was free to leave or (b) that his
license had been returned to him, both of which might be viewed as intervening
circumstances”). The knowledge that one is free to leave, accompanied by the
return of the license and registration, cuts the causal chain between the
unconstitutional detention and the consent. Cf. United States v. Sanchez-Pena,
336 F.3d 431, 443 (5th Cir. 2003) (noting that after the driver receives the
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license, registration, and any other material needed to leave then the encounter
after a traffic stop becomes a consensual one). Both of these intervening
circumstances distinguish the case at hand from our prior decision in United
States v. Macias, 658 F.3d 509 (5th Cir. 2011). In Macias, this court held that
the second factor weighed against the government because there were “no
circumstances that intervened between the detention and the consent, and thus
. . . there [was] no reason to think that [the defendant] believed he was free to
go.” 658 F.3d at 524 (internal quotations omitted).
Finally, although there is some support for both sides, the third factor of
flagrancy and purpose of police misconduct leans in favor of the government. On
the one hand, Officer Averette said that he wanted to search a vehicle when he
radioed for backup, and we have held that if the clear purpose of the detention
was to obtain consent to search the vehicles, then that factor weighs against the
government. United States v. Jones, 234 F.3d 234, 243 (5th Cir. 2000).
However, following an evidentiary hearing, the district court found that the
unlawful detention spanned only seven minutes, and the officers did not
purposefully use that period of illegal detention to procure the defendant’s
consent to search the vehicles. In addition, the video clearly shows that the
consent was not obtained by any misrepresentations made to the defendants as
Officer Averette told Ansourian that he was looking for “anything illegal.”
Moreover, once the search began, Ansourian never tried to stop it, revoke his
consent, or complain about the length of the search. To the contrary, Ansourian
offered to remove the trailer fenders to allow the officers to access the car.
We conclude that the district court’s determination that Ansourian’s
consent was voluntary and an independent act of free will was not error.
Therefore, Ansourian’s consent was valid and remedies the taint from the prior
unconstitutional detention. AFFIRMED. See United States v. Bessolo, 269 F.
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App’x 413 (5th Cir. 2008) (per curiam) (unpublished) (holding that the district
court did not err in denying the motion to suppress because of the valid consent).
7
