De novo review sustaining searches: Two examples, one reversing a suppression order

On de novo review of whether there was reasonable suspicion for a traffic stop, having reviewed the transcript and the videotape of the stop, the Eighth Circuit disagrees with the district court that there was no objective basis for a stop for driving over the fog line for 10-15 seconds and reverses. United States v. Herrera-Gonzalez, 474 F.3d 1105 (8th Cir. January 26, 2007):

To the contrary, under the circumstances of this stop–the 10 to 15 second crossing of the fog line, the time of day (morning), the clear weather conditions, the fact that there was a full lane of travel between Herrera-Gonzalez and the tow trucks, the lack of any additional adverse conditions that would have made it impractical for Herrera-Gonzalez to keep his car in the lane, and the fact that Herrera-Gonzalez returned to his lane to avoid the bridge and then continued within his lane as he passed the tow trucks–and given the obvious difficulty of observing from a patrol car whether a driver has ascertained that his move can be safely made, we conclude that Faiferlick had an objectively reasonable basis to believe that a violation of the Iowa statute had occurred. See Alvarado, 430 F.3d 1305, 1309; cf. Washington, 455 F.3d at 828 (noting that where there is a basis in state law for an officer’s actions and some ambiguity exists that caused the officer to make the mistake, it may still be objectively reasonable). We recognize that this is a relatively close question, but we believe that based on what he reasonably knew at the time of the stop, Smart, 393 F.3d at 770, Faiferlick “could have formed” a reasonable suspicion that Herrera-Gonzales had committed a traffic violation, Martin, 411 F.3d at 1001. Accordingly, we conclude that the traffic stop was lawful.

On de novo review of consent, the Fifth Circuit states its test and attempts to focus on the recurring question of courts which “ought to be skeptical of a defendant’s alleged consent when the defendant persuades that he did not know that he had a right to refuse the request for consent to search and it is plain from the facts that the contraband would likely be found.” United States v. Arias-Robles, 477 F.3d 245 (5th Cir. 2007):

Voluntariness of consent is a finding of fact reviewed for clear error, but where there are “virtually no uncontested facts,” review is “essentially de novo.” Where a defendant challenges the voluntariness of consent to search, the Government must prove voluntariness by a preponderance of the evidence. A court should consider the totality of the circumstances, focusing on six factors: 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. Although all factors are relevant, none is dispositive.

. . .

Marshaling all six factors, we cannot say that the district court erred in concluding that Arias’s consent was voluntary. Concededly, under our cases a defendant faces a high hurdle in his effort to escape an affirmative response to an officer’s request for permission. At the least we are persuaded that our test ought to be skeptical of a defendant’s alleged consent when the defendant persuades that he did not know that he had a right to refuse the request for consent to search and it is plain from the facts that the contraband would likely be found. That said, we cannot conclude that such recurring circumstances so often produce a coerced consent that we ought to find them inherently coercive. There is no “Miranda requirement” attending a simple request for permission to search.