CA5: District court’s IAC analysis was clearly insufficient where motion to suppress wasn’t filed

In a § 2255 IAC claim before the appellate court on a certificate of appealability from a life sentence in a drug case, the court finds that the district court’s sole finding that defendant said during trial that he let the police search him did not answer the question of whether the alleged consent search of his person was voluntary for frivolousness purposes of defense counsel’s failure to move to suppress. United States v. Dowling, 458 Fed. Appx. 396 (5th Cir. 2012) (unpublished):

On the record before us, we cannot say that a motion to suppress would have been frivolous. When reviewing whether a search was justified by consent, a district court examines several issues. First, the government must show that the defendant consented based on the totality of the circumstances. United States v. Freeman, 482 F.3d 829, 831-32 (5th Cir. 2007). Next, the government must show that this consent was voluntary, also based on the totality of the circumstances. Id. at 832 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973)). District courts focus on six factors to determine voluntariness:

(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 consent; (5) the defendant’s education and intelligence; and (6) the defendant’s belief that no incriminating evidence will be found. All six factors are relevant, but no single one is dispositive or controlling.

Id. (quoting United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993)). Third, the government must show that the search was within the scope of the consent. Id. (internal citations omitted). Scope of consent is governed by objective reasonableness: “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991). The question of objective reasonableness is a question of law that we review de novo, although factual findings explicit in a district court’s reasonableness decision are reviewed for clear error. United States v. Ibarra, 965 F.2d 1354, 1356-57, 1360 (5th Cir. 1992) (en banc); see also United States v. Harrison, 918 F.2d 469, 473 (5th Cir. 1990), and United States v. Tedford, 875 F.2d 446, 448-49 (5th Cir. 1989).

Only voluntariness and scope of consent are at issue in this appeal. In United States v. Watson, 273 F.3d 599 (5th Cir. 2001), the court held that, “[i]t is not enough to show the mere existence of consent; the government also must show that ‘consent was freely and voluntarily given.'” Id. at 604 (quoting United States v. Ponce, 8 F.3d 989, 997 (5th Cir.1993)). The district court in Watson conflated the question of voluntariness with that of the mere existence of consent and failed to apply the six factor test. Id. As a result, we vacated the conviction and remanded the case in order for the district court “to consider the evidence pertaining to each of the six factors and weigh them against each other.” Id.

Similarly in this case, the district court devotes no analysis to the voluntariness of Dowling’s consent. Having considered the full record ourselves, we perceive that a predominance of relevant factors implies voluntariness. Dowling agreed when his counsel asked him on direct examination whether he “understood that [he] didn’t have to let [the police]” look in his pockets. Furthermore, Dowling’s assent, coupled with his furtive movements throughout the traffic stop, strongly indicate that he was hopeful that the bag in his pants might not be found. Finally, Dowling was blunt with his own testimony that as a previously convicted felon, he knew his rights, especially his right to refuse consent and to refuse to speak to police. On the other hand, Dowling was not cooperating with repeated police warnings to stop making hand gestures towards his pants. And, as our COA identified, the district court never examined the impact of Dowling’s being handcuffed prior to the search of his person on the voluntariness of his confession. Third, trial counsel for Dowling cross-examined each officer to confirm that no one told Dowling he could refuse consent to search. Finally, a careful review of all the police testimony suggests that the unbuckling of Dowling’s pants may not have been coterminous with the consent search of his pockets but may instead have been a pat-down triggered by more threatening hand movements towards his waist even while handcuffed and even after being told to stop.