Case: 12-40563   Document: 00512294684     Page: 1   Date Filed: 07/02/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                                  July 2, 2013

                                 No. 12-40563                   Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee
v.

MARVIN MAURICE COTTON,

                                           Defendant-Appellant



                Appeal from the United States District Court
                      for the Eastern District of Texas


Before WIENER, DENNIS, and OWEN, Circuit Judges.
WIENER, Circuit Judge:
      Defendant-Appellant Marvin Cotton appeals the district court’s denial of
his motion to suppress evidence seized in connection with a traffic stop. We
conclude that Cotton limited his consent to a search of his luggage only, so the
officer’s prolonged and more extensive search of Cotton’s entire vehicle violated
his Fourth Amendment right. Consequently, drugs uncovered during the search
of the vehicle and incriminating statements made shortly thereafter must be
suppressed as fruits of the unlawful search. We vacate the conviction and
sentence, and we remand for further proceedings consistent with this opinion.
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                                     No. 12-40563

                         I. FACTS AND PROCEEDING
      In February 2011, Cotton was driving his rental car along Interstate 10 in
east Texas when, without changing lanes or slowing his speed as required by
Texas law, he passed Lieutenant Tony Viator’s emergency vehicle parked on the
side of the road. Having already received a tip from a fellow officer that Cotton
might be carrying drugs, Viator conducted a stop and a lengthy detention,
running license checks with dispatch and questioning separately both Cotton
and his passenger, John Thornton, about their itinerary and their reasons for
travel. Viator’s suspicion grew when inconsistencies in Cottons’s and Thornton’s
stories emerged, so he sought Cotton’s consent to search the rental car for drugs.
      The audio from the camera on Viator’s vehicle recorded the following
interaction between Viator and Cotton, which took place 11 minutes into the
stop and before the check of Cotton’s license had returned clear:
      Viator:       Can I search this vehicle?
      Cotton:       [Unintelligible]1
      Viator:       Hold on. Come here. Come here. Come here. Is it
                    okay if I search it?
      Cotton:       Search my luggage. [Unintelligible]
      Viator:       Okay. Is it okay if I search everything in the car?
      Cotton:       My luggage, yeah.
Viator began a meticulous search of the entire vehicle while Deputy Clint
Landry, who had recently arrived on the scene, guarded Cotton and Thornton
as they sat on the grass several yards from the car. Forty minutes into the
search, and after first searching the trunk and the entire passenger cabin, Viator
proceeded to examine more closely, inter alia, the driver’s-side rear door for
evidence of contraband. While squatting outside the car with that door open, he
noticed loose screws and tool markings on the door’s panel. He then pried back
the panel and discovered a small, plastic-wrapped bundle concealed in the door’s

      1
         Viator testified at the suppression hearing that Cotton responded “Yeah, you can
search it.” Cotton insists instead that he said “Yeah, my bags. I’ll show you.”

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                                       No. 12-40563

inner cavity. When Viator then signaled for Landry to cuff the men, Cotton fled
afoot. The officers caught the less-than-nimble suspect after a brief chase,
placed him under arrest, and Mirandized him.                  After that, Cotton made
incriminating statements while trying to work out a deal with the officers. The
plastic-wrapped bundle was later tested and discovered to contain crack cocaine.
      Cotton filed a motion in the district court to suppress the drugs and the
statements. The motion was referred to a magistrate judge (“MJ”), who, after
an evidentiary hearing, found no constitutional violation and recommended that
the motion be denied. Adopting the MJ’s report in toto and adding little to his
analysis, the district court denied the motion. Cotton pleaded guilty to one count
of possession with intent to distribute more than 280 grams of cocaine base and
was sentenced to 121 months in prison. He now appeals the court’s denial of his
motion to suppress, having reserved the right to do so in his plea agreement.


                            II. STANDARD OF REVIEW
      In an appeal from the denial of a motion to suppress, we review factual
findings for clear error and legal conclusions de novo.2 We view the evidence in
the light most favorable to the prevailing party in the district court—here, the
government.3


                                     III. ANALYSIS
      Although Cotton challenges the legality of the traffic stop from its
inception as well as the reasonableness of its scope, we focus on his specific
contention that the search exceeded the bounds of his limited consent when,
instead of only searching his luggage, Viator exhaustively scoured the entire


      2
          United States v. Macias, 

, 517 (5th Cir. 2011).
      3
          Id.

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                                        No. 12-40563

vehicle for contraband. As we conclude that Viator impermissibly extended the
search beyond the scope of Cotton’s consent, we need not consider whether other
constitutional infractions occurred that might also require suppression of the
discovered evidence.


A.    Limit of Consent To Search
      The Fourth Amendment proscribes unreasonable searches and seizures,
but it permits a warrantless search to which the suspect consents.4 “When
conducting a warrantless search of a vehicle based on consent, officers have no
more authority to search than it appears was given by the consent.”5 Thus, it is
“important to take account of any express or implied limitations or qualifications
attending that consent which establish the permissible scope of the search in
terms of such matters as time, duration, area, or intensity.”6 The Supreme
Court’s standard, under             Florida v. Jimeno,7 is “that of ‘objective’
reasonableness—what would the typical reasonable person have understood by
the exchange between the officer and the suspect?”8
      Although the parties dispute precisely how Cotton responded to Viator’s
first request for permission to search the car, they do not dispute that thereafter
Viator asked twice more whether he could search the car; neither do they dispute
that Cotton replied both times that Viator could search Cotton’s luggage. Cotton
urges that he meant only the luggage, whereas Viator testified that he


      4
          United States v. Garcia, 

, 190 (5th Cir. 2010).
      5
          Id. (citing United States v. Mendoza-Gonzalez, 

, 666-67 (5th Cir. 2003)).
      6
        4 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 8.1(c) (5th ed. 2012) (hereinafter SEARCH
AND SEIZURE); accord United States v. Green, 388 F. App’x 375, 382 (5th Cir. 2010).

      7
          

 (1991).
      8
          Id. at 251.

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                                     No. 12-40563

understood Cotton’s responses to permit a search of the luggage in addition to
the rest of the car. The MJ assumed arguendo that Cotton’s initial consent to
search was limited to his luggage and then concluded that “the objective
reasonableness standard would allow Lt. Viator to look anywhere in the vehicle
where the luggage could possibly be found, including the back seat of the car and
floor boards.” On appeal, the government emphasizes that, during his proper
search of the vehicle for Cotton’s luggage, Viator discovered evidence in plain
view that a door panel might conceal a hidden compartment. This discovery, the
government argues, permitted Viator to pry open that door panel and search the
area behind it for hidden contraband.
      The government’s argument rests on faulty understandings of both law
and fact. True, if Cotton properly limited his consent to a search of his luggage,
that consent would permit Viator to enter the car and search those items. It is
also true that if, during such a limited entry into the vehicle, Viator were to
discover evidence of a hidden compartment, that discovery might provide
probable cause to search the suspected compartment.9 The video evidence and
Viator’s own testimony, however, reveal that he discovered the loose screws and
tool markings on the driver’s-side rear door panel not as he was trying to locate
Cotton’s luggage and not as he was examining the contents of such luggage.
Rather, after locating and searching the luggage in the backseat area of the car,
Viator expanded his search for evidence of contraband to the vehicle itself by
proceeding to examine, inter alia, the driver’s-side rear door. Authority to enter
and search the car for Cotton’s luggage was not authority to search discrete
locations within the car where luggage could not reasonably be expected to be
found. Neither was it justification for lingering in and around the vehicle for 40



      9
         See United States v. Estrada, 

, 633 (5th Cir. 2006); United States v.
Inocencio, 

, 724 (5th Cir. 1994).

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                                          No. 12-40563

minutes—much longer than a search for and of Cotton’s luggage should or could
conceivably last.
      United States v. Solis10 is instructive. In Solis, an officer, with knowledge
that a gun was resting on a shelf in the defendant’s bedroom and with the
defendant’s consent to search for the gun, moved a cooler underneath the shelf
to use as a step to reach the gun.11 Moving the cooler revealed heroin, evidence
of which the defendant sought to suppress.12                Because the uncontroverted
evidence showed that the cooler was moved only to effectuate the search for the
gun, for which consent had been voluntarily given, the officer did not exceed the
scope of the consent, and the heroin discovered in plain view was held
admissible.13 Here, in contrast, Viator did not discover the hidden compartment
in plain view while permissibly seeking luggage to search for drugs, but while
searching for other places inside the car that he speculated might conceal drugs.
      Notwithstanding the government’s flawed legal reasoning, the question
remains whether Cotton’s words reasonably conveyed to Viator consent to search
the entire car and not just to find and search all luggage. “The scope of a
consensual search may be limited by the expressed object of the search”;14 thus,
when an officer requests to “look through the trunk” of a car but adds that he
does not want to look through each item and just wants “to see how things were
‘packed’ or ‘packaged,’” he exceeds the scope of the consent by unzipping and
searching the bags in the trunk.15 When “an officer does not express the object

      10
           

 (5th Cir. 2002)
      11
           Id. at 431.
      12
           Id. at 431-32.
      13
           Id. at 438.
      14
           Garcia, 604 F.3d at 190 (citing Jimeno, 500 U.S. at 251).
      15
           United States v. Elliott, 

, 812, 815-16 (10th Cir. 1997).

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                                       No. 12-40563

of the search,” however, “the searched party, who knows the contents of the
vehicle, has the responsibility explicitly to limit the scope of the search.”16
       The complete exchange between Viator and Cotton does not lend itself to
ambiguity. Even if, as Viator contended, Cotton in fact answered his first
request to search the car with “Yeah, you can search it,”17 Viator then
immediately asked the same question—twice—that he contends had already
been answered without restriction or limitation. Viator’s attempt to confirm the
response that the government now insists was Cotton’s unequivocal general
consent is susceptible of but two possible explanations: Either (1) Viator did not
actually hear Cotton’s first response and was asking Cotton to repeat it, or (2)
Viator was asking Cotton to repeat his consent twice again out of an abundance
of caution. If the first explanation is correct, then Viator was unreasonable in
perceiving a general consent to search when he never heard Cotton consent
without qualification. If the second explanation is the right one, then Viator’s
caution proved justified, and reason would not permit him to throw caution aside
and interpret “search my luggage” as an expansion of the scope of consent rather
than a limitation to it. The latter explanation would instead call for even further
clarification, which Viator failed to obtain on either his second or third request
for Cotton’s consent.
       That Cotton did not try to rein in Viator’s search when it extended beyond
his luggage does not affect our analysis. It is true that a defendant’s failure to
object after giving his general authorization to search might indicate that a


       16
            Garcia, 604 F.3d at 190 (citing Mendoza-Gonzalez, 318 F.3d at 666) (emphasis
added). Absent any limitation placed by the suspect, his consent to search a car will support
an officer’s search of unlocked containers within it. See Jimeno, 500 U.S. at 251; United States
v. Crain, 

, 484 (5th Cir. 1994). We are presented with the inverse case in which
the suspect has consented to a search only of specific items within the car.
       17
          The magistrate explicitly declined to resolve the dispute as to what was said in the
initial unintelligible portion of the audio recording.

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                                       No. 12-40563

search, later challenged as outside the scope of consent, was actually within it.18
But any failure to object “should not be treated as expanding a more limited
consent, especially when the circumstances suggest some other possible reason
for defendant’s silence.”19 At the suppression hearing, Cotton explained that he
believed further objection would have proved futile, given his belief that his prior
limitation to the scope of the search was clear and unequivocal:
       Cotton:     I didn’t feel that [Viator] would even talk to me at any
                   time [during the search] because he already went
                   outside the scope from the beginning. He just did what
                   he wanted to do.
       Prosecutor: There was nothing to impede you from saying, “Excuse
                   me, Officer. I did not give you permission to look there”
                   and just to raise your voice to say something to the
                   officer.
       Cotton:     I—
       Prosecutor: You never did that, did you?
       Cotton:     I told the officer four times where he could look. So he
                   ignored them all four times. You wanted me to tell him
                   the fifth time? I told him four times.
       Prosecutor: So the answer is no, you never told him?
       Cotton:     I told him four times where he could look. That’s my
                   answer.
       The relevance of Cotton’s failure to object as Viator proceeded to search
every portion of the car closely only begs the question whether Viator was
reasonable in interpreting the scope of Cotton’s consent in the first place. As we
have answered that question in the negative, we conclude that Viator’s extensive
search of Cotton’s car violated the Fourth Amendment.

       18
            Mendoza-Gonzalez, 318 F.3d at 667; see also SEARCH AND SEIZURE § 8.1(c).
       19
           SEARCH AND SEIZURE § 8.1(c) (emphasis added); see United States v. Neely, 

, 350-51 (4th Cir. 2009) (defendant’s silence as officers searched the passenger cabin of his
car did not overcome the limitation that he originally placed, namely, that officers may search
only the trunk); United States v. Wald, 

, 1228-29 (10th Cir. 2000) (defendant’s
silence when police opened the trunk of his vehicle was insignificant when his initial consent
was limited to the passenger compartment and the defendant’s failure to object stemmed from
his belief that he was under arrest and thus powerless to prevent the trunk search).

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                                         No. 12-40563

B.     Suppression of the Evidence
       “Under the ‘fruit of the poisonous tree’ doctrine, all evidence derived from
the exploitation of an illegal search or seizure must be suppressed, unless the
Government shows that there was a break in the chain of events sufficient to
refute the inference that the evidence was a product of the Fourth Amendment
violation.”20 The drugs discovered during Viator’s unlawful search must be
suppressed as the direct product of that search.                  Less obviously, Cotton’s
inculpatory remarks, made immediately on the heels of the unlawful search and
discovery of the drugs, are likewise subject to suppression. “When a confession
is obtained following an unconstitutional search, the Constitution ‘requires not
merely that the statement meet the Fifth Amendment standard of
voluntariness[,] but that it be sufficiently an act of free will to purge the primary
taint.’”21 Relevant considerations include (1) the temporal proximity of the
arrest to the statement, (2) the presence of intervening circumstances, and (3)
the purpose and flagrancy of the official misconduct.22 The government does not
contend, nor would the record evidence support a contention, that Cotton’s
admissions were an independent act of free will sufficient to purge the taint of
the constitutional violation.23

       20
         United States v. Rivas, 

, 368 (5th Cir. 1998) (citing Brown v. Illinois, 

, 602-03 (1975)).
       21
         United States v. Cantu, 426 F. App’x 253, 258 (5th Cir. 2011) (alteration in original)
(quoting Brown, 422 U.S. at 602); see also United States v. Hernandez, 

, 621 (5th
Cir. 2012).
       22
            Brown, 422 U.S. at 603-04.
       23
          Although Cotton was advised of his Miranda rights before making the incriminating
statements, “Miranda warnings alone do not break the causal connection between police
misconduct and a subsequent statement.” United States v. Webster, 

, 324 (5th
Cir. 1984); see also Dunaway v. New York, 

, 218 (1979); Brown, 422 U.S. at 603
(“Miranda warnings, alone and per se, cannot always make the [confession] sufficiently a
product of free will to break, for Fourth Amendment purposes, the causal connection between
the illegality and the confession.”).

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                                     No. 12-40563

                                 IV. CONCLUSION
       As the search of the vehicle qua vehicle exceeded the scope of Cotton’s
consent when it was continued beyond the point at which Viator had located and
searched all of Cotton’s luggage, we reverse the district court’s denial of Cotton’s
motion to suppress, vacate his conviction and sentence, and remand for further
consistent proceedings.24




       24
         See United States v. Martinez, 

, 866 (5th Cir. 2007) (recognizing that
remand is the appropriate remedy when reversing a district court’s denial of a motion to
suppress).

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