Opinion
1:06-CR-343 (GLS).
November 26, 2007
FOR THE UNITED STATES: HON. GLENN T. SUDDABY, United States Attorney, Thomas A. Capezza, Assistant U.S. Attorney, Albany, New York.
FOR THE DEFENDANT: Frederick Wrench, Esq., Pelagali, Weiner Law Firm, Clifton Park, New York.
Decision and Order
I. Introduction
Andre Coulombe has been indicted for bulk cash smuggling. See 31 U.S.C. § 5332. He moves to suppress tangible and intangible evidence generated by the surreptitious installation of a mobile tracking device on his vehicle, evidence subsequently seized from that vehicle during a warrantless search, and statements he made to federal officers. See Dkt. Nos. 18, 25, 27, 36, 39-1, 3/8/07 Min. Entry (Motion Return Colloquy), 9/11/07 Suppression Hearing Colloquy; see also FED. R. CRIM. P. 12(b)(3)(C). For the reasons that follow, his motion is denied.
II. Facts
Having considered Coulombe's burden of production, the appropriate burden of proof, the suppression hearing testimony of federal and local agents, hearing exhibits, the parties' submissions, and having resolved issues of credibility, the court finds the following essential facts. See FED. R. CRIM. P. 12(d); see also United States v. Miller, 382 F. Supp. 2d 350, 361-63 (burden of production and proof).
The following witnesses testified at the suppression hearing: Department of Homeland Security, Immigration and Customs Enforcement ("ICE") Special Agents Robert Charles, Steven Prenoveau, and Lawrence Sullin; Department of Homeland Security, Customs and Border Protection Officers Richard Blanchard, Mark Cecilione, Charles M. Allen, Lawrence W. Larsen and William P. Honan; and Deputy Sheriff Joseph Upton. Coulombe did not testify or offer any direct evidence controverting the government's proof.
Predicated upon the following events, Special Agent Charles reasonably believed that Coulombe was involved in smuggling narcotics and money across the U.S.-Canadian border prior to August 21, 2006. In July 2003, Coulombe crossed the Canadian-Vermont border in a car registered to a third-party owner. That owner was subsequently stopped after crossing the U.S. border, and Canadian authorities found undeclared currency in a secret trunk compartment. In September 2003, Canadian authorities found one pound of marijuana hidden in a vehicle operated by Coulombe. In November 2003 and January 2004, authorities found multi-pounds of marijuana hidden in vehicles purchased from Coulombe's company, LES Automobiles. Based on these events, Charles flagged Coulombe's name in the Customs and Immigration database. Thus, if Coulombe's name surfaced, his activities would receive closer scrutiny, including a border search of his vehicle for narcotics or currency.
Shortly before 2 P.M. on August 21, 2006, Coulombe and his wife, Shelly Stankovich, stopped at the primary inspection station located on the U.S.-Canadian border at Champlain, New York. Coulombe was driving a 2000 Chrysler minivan registered to his company. Stankovich was a front seat passenger.
Officer Blanchard manned the primary station, and spoke to both Coulombe and Stankovich. Both told Blanchard that they were Canadian citizens, that they had nothing to declare, and that they did not have more than $10,000 in currency. The conversation was in English. Blanchard had no difficulty understanding Coulombe. Coulombe neither expressed nor exhibited difficulty in understanding Blanchard. Stankovich did not interpret. Both Coulombe and Stankovich provided Blanchard with photographic identification. When Blanchard entered Coulombe's name in the database, he received an alert. He then referred the vehicle and its occupants for secondary inspection. Charles was also notified, and he responded to the port-of-entry.
The court has recently addressed primary and secondary inspections of individuals, vehicles and goods seeking admission into the United States in terms of authorization and scope. See United States v. Tudoran, 476 F. Supp. 2d 205, 210-13 (N.D.N.Y. 2007). Other than the installation of a tracking device during secondary inspection, Coulombe does not challenge the inspections. In any event, they were legally permissible. See id.
While Charles and his partner, Special Agent Sullin, were covertly present, Officers Allen and Cecilione conducted the secondary inspection. Allen removed Coulombe and Stankovich from the vehicle, and escorted them into a secondary inspection building. Allen spoke to them in English, and ascertained from both that they preferred to read and write English. Neither Stankovich nor Coulombe requested a French interpreter. Throughout his encounter and conversations with the two, Allen had no difficulty in understanding either nor did either expressly or implicitly do or say anything that suggested they did not understand Allen.
Stankovich told Allen that she and Coulombe were married. Allen gave them a Customs Declaration and explained its provisions. After Stankovich completed it, both she and Coulombe signed it. See Ex. 2. Both Coulombe and Stankovich acknowledged their obligation to declare currency in excess of $10,000, and both signed the certification indicating that their destination was Lake George, a tourist site located a few hours south of Champlain. Allen then asked them to remain in the secondary building while he inspected their vehicle.
Outside, Allen and his partner, Officer Cecilione, inspected the interior and exterior of the vehicle with negative results. Officer Larsen also conducted a K-9 narcotics inspection. The dog positively alerted at the passenger side, rear quarter panel, but no narcotics were found. Then, Charles and Sullin surreptitiously installed an Orion Model 801 tracking device.
The Orion consisted of four components: a global positioning device ("GPS"); a cellular telephone; an antenna; and a battery pack. It was installed on the undercarriage beneath the rear bumper, and held in place with either magnets or plastic ties. There was no damage to the vehicle during installation, nor was the vehicle's interior invaded. The unit was independently powered. When activated, the cell phone transmitted GPS data to Charles's computer and cell phone. Thus, he was able to track the vehicle's route and monitor its location.
After secondary inspection, Coulombe and his wife drove the vehicle south on Interstate 87. Charles observed the vehicle pass Lake George — Coulombe's stated destination. Eventually, Orion data revealed that the vehicle stopped late in the evening of the 21st at the Sloatsburg rest area on Interstate 87, forty miles north of New York City, and one hundred and seventy miles south of Lake George. The vehicle remained in the rest area for a period of time, and then began traveling north again. Anticipating that it would reach the border in the early morning hours of the 22nd, Charles assembled a surveillance team and arranged a border checkpoint to stop and search the vehicle when it attempted to cross into Canada.
As the vehicle proceeded north, Deputy Upton first saw it near Exit 35 of Interstate 87 at approximately 4:30 A.M. Coulombe was driving. Upton, Pennfield and Sullin then began an alternating, roving surveillance with Charles monitoring their activities from his Rouses Point duty station. Coulombe left I-87 at Exit 42, and stopped at a gas station. While he was stopped, agents saw him exit the vehicle, lift the rear hatch, and do something in the vicinity of the rear quarter panel. After leaving the gas station, Coulombe and Stankovich reentered I-87, northbound.
As they crested a hill within eyesight of the border, the checkpoint earlier established by Charles was clearly visible. Outbound traffic to Canada was reduced to one lane, and police cars were parked there with their flashing lights activated. Coulombe stopped his vehicle on the highway for thirty seconds, and then immediately left the highway at Exit 43, the last exit before the border.
The surveillance team followed Coulombe onto Route 11, through the Town of Champlain, and into the Village of Rouses Point. By then, Charles had left his duty station, and joined the surveillance. Less than two miles from the border, the vehicle turned south onto Route 9B, away from the border. Charles then directed Sullin — the first surveillance vehicle behind Coulombe — to stop him. Sullin tapped his siren, activated his lights, and stopped Coulombe between 5:00-5:30 A.M. Upton, Pennfield and Charles were behind Sullin, and they activated their lights. The lights were deactivated after the stop. Special Agent Prenoveau lived near the stop, and when he heard the siren, he walked from his home to the area of the stop.
Sullin exited his vehicle and first approached the driver's side window. In English, he asked Coulombe where he was going. In English, Coulombe responded evasively, and did not specifically answer the question. As Sullin was speaking to Coulombe, Charles arrived, exited his vehicle, and approached the passenger side window.
In English, Charles asked Coulombe for permission to search the vehicle, and Coulombe responded in English that he did not understand. In English, Charles asked Stankovich for permission to search the vehicle, and she granted permission in English. When she granted permission, Sullin, in English, again sought Coulombe's assent, asking, "Do you mind if we look in the vehicle?" Coulombe then granted permission. Coulombe's hands were shaking, and he was visibly nervous. All police weapons were holstered. Neither Coulombe nor Stankovich were told that they could refuse consent. Had Coulombe refused permission, Charles would have called for a K-9 inspection. Absent a positive alert, he would have permitted Coulombe and Stankovich to leave.
Once consent was obtained, Coulombe was removed from the vehicle, and frisked by Sullin. He then stood next to Charles at the rear of the vehicle as Charles and Upton lifted the hatchback to inspect the rear quarter panel where the K-9 had alerted the previous day, and where Coulombe was earlier observed at the gas station. Upton removed a speaker, and more than $253,000 in bundled currency and a note were discovered hidden behind the speaker. No more than ten minutes elapsed from the initial stop until the seizure of the money.
While the search was conducted and before its conclusion, Sullin noticed that Coulombe was becoming increasingly nervous and jittery. As a result, Sullin believed that Coulombe was becoming an increased safety risk. Accordingly, Sullin handcuffed him and permitted him to sit on the curb next to the vehicle. Stankovich remained seated in the vehicle throughout the stop, and she was not handcuffed.
After the money was discovered, Coulombe was un-handcuffed, and he, Stankovich and Charles drove to the Rouses Point duty station. Coulombe drove his vehicle, Charles sat in the front passenger seat, and Stankovich sat in the rear seat. Charles communicated with both in English.
At Rouses Point, a K-9 search lead to the discovery of additional currency in the rear quarter panel, and agents photographed the physical evidence and the vehicle. See, e.g., Gov't Exs. 5.1-5.22. After Mirandizing Stankovich, Charles Sullin interviewed her, and she provided a written statement. See Gov't Ex. 4. After Mirandizing Coulombe, Prenoveau and another agent interviewed him in French, and he provided a written statement. See Gov't Ex. 3. Coulombe concedes that the Miranda warnings were adequate, that he voluntarily waived his Miranda rights, and that his statement was voluntary.
III. Discussion
As has become customary in suppression decisions, the court first summarizes the pending issues. All others have been waived. See Miller, 382 F. Supp. 2d at 364-65. Coulombe argues that his statement and all tangible and intangible evidence must be suppressed as either a direct or indirect result of unreasonable police conduct that began with the installation of the Orion tracking device and ended with the search of his vehicle. He maintains that such conduct violated his Fourth Amendment rights, and tainted his confession and the secondary seizures at the police station. He has satisfied his burden of production by alleging a vehicle search in the absence of a warrant. The government counters: the installation and operation of the Orion implicates no Fourth Amendment concerns; the vehicle stop was reasonable under the principles of Terry v. Ohio, 392 U.S. 1 (1968); and the search was authorized by Coulombe's voluntary consent. A. The Orion Tracking Device
The exclusionary rule requires suppression of direct and indirect ("poisonous fruit") physical and verbal evidence obtained during, or as a direct result of, a Fourth Amendment violation. See Wong Sun v. United States, 371 U.S. 471, 484-85 (1963).
It is unclear whether the government relies on Stankovich's third-party consent to justify the vehicle search. Because the court concludes that Coulombe consented and because the law regarding third-party consent is unsettled, it declines to reach the issue. Cf. Moore v. Andreno, ___ F.3d ___, Nos. 06-3623-cv(L), 06-3748(XAP), 2007 WL 3052216 (2d Cir. Oct. 22, 2007) and Georgia v. Randolph, 547 U.S. 103 (2006).
A person has no reasonable expectation of privacy insofar as the exterior of his car is concerned. See United States v. McIver, 186 F.3d 1119, 1126 (9th Cir. 1999) (citing New York v. Class, 475 U.S. 106, 114 (1986); United States v. Rascon-Ortiz, 994 F.2d 749, 754 (10th Cir. 1993). There is no Fourth Amendment violation when the installation of a tracking device on a vehicle's undercarriage does not damage the vehicle or invade its interior, when the vehicle operator does not lose dominion or control, and when there is no other Fourth Amendment invasion during the installation. See McIver, 186 F.3d at 1126-27. Charles did not damage the vehicle, he did not invade the interior, and Coulombe did not lose dominion and control. Because the vehicle's undercarriage was lawfully accessed during the secondary border inspection, there was no other unlawful invasion that violated the Fourth Amendment. See Tudoran, 476 F. Supp. 2d at 210-13. Therefore, the installation of the device and its post-installation operation were constitutionally permissible.
B. The Terry Stop
The Fourth Amendment protects against unreasonable seizures, see U.S. CONST. AMEND. IV, and any restraint of a citizen's liberty caused by a show of authority or force constitutes a seizure. See Florida v. Bostick, 501 U.S. 429, 434 (1991) (citation omitted). To be reasonable, a seizure "usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against 'an objective standard,' whether this be probable cause or a less stringent test." Delaware v. Prouse, 440 U.S. 648, 654 (1979) (internal footnotes and citations omitted). A citizen's seizure short of arrest passes constitutional muster if based on a reasonable suspicion that the citizen is engaged in suspected criminal activity. See Terry, 392 U.S. at 30-31; see also Oliveira v. Mayer, 23 F.3d 642, 645-47 (2d Cir. 1994) (distinguishing Terry stop and arrest). So too, a reasonable suspicion will justify the stop of a citizen operating a car. See Miller, 382 F. Supp. 2d at 366.
When assessing whether a reasonable suspicion exists, courts must examine the totality of the circumstances and determine whether the police had a particularized and objective basis for suspecting criminal activity. See United States v. Arvizu, 534 U.S. 266, 273 (2002). A reasonable suspicion is more than a hunch, but less than probable cause, and considerably less than a preponderance of the evidence. See id. at 274. While no single factor is dispositive, courts have sometimes focused on certain factors that are especially probative, including a suspect's: lies and false information; implausible, conflicting, evasive or unresponsive answers; and nervous behavior or demeanor. See United States v. DeLouya, No. 1:04CR588, 2005 WL 3244173, at *15 (N.D.N.Y. Nov. 30, 2005) (internal citations omitted).
Because the reasonable suspicion inquiry is objective, the subjective intentions of the police are irrelevant. See Devenpeck v. Alford, 543 U.S. 146, 153 (2003). The pertinent facts are those known to the police at the time of the stop. See id. at 152. A police officer may rely on his own experience and training to draw inferences from and make deductions about the cumulative information available to him that might elude an untrained person. See Arvizu, 534 U.S. at 273. And, the knowledge of one officer is attributable to all. See Illinois. v. Andreas, 463 U.S. 765, 772 n. 5 (1983).
Furthermore, an investigative stop must not exceed reasonable intensity and durational limits less it is converted into a de facto arrest which is impermissible absent probable cause. While such limits will vary according to the unique circumstances of each case, "an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop . . . [and] . . . the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Florida v. Royer, 460 U.S. 491, 500 (1983); see also United States v. Newton, 369 F.3d 659, 674 (2d Cir. 2004). There is no bright-line rule, however, governing the length of an investigative detention. See United States v. Sharpe, 470 U.S. 675, 685-686 (1985); see also United States v. Tehrani, 49 F.3d 54, 61 (2d Cir. 1995) (declining to hold that a thirty minute investigative detention is per se too long) (citing, inter alia, United States v. Davies, 768 F.2d 893, 902 (7th Cir. 1985) (forty-five minutes reasonable)); see also Muehler v. Mena, 544 U.S. 93, 100 (2005) (three hour search detention reasonable). The test is simply whether the police, under all of the circumstances, acted diligently and quickly to confirm or deny their suspicions, Sharpe, 470 U.S. at 686, which is a question of fact. See Tehrani, 49 F.3d at 58. A reviewing court "should take care to consider whether the police are acting in a swiftly developing situation, and . . . should not indulge in unrealistic second-guessing." Sharpe, 470 U.S. at 686; see also United States v. Gori, 230 F.3d 44, 54-55 (2d Cir. 2000).
Courts have discussed specific investigative methods as they relate to the intensity of an investigative stop. Thus, the police may conduct a limited search for weapons if they reasonably believe the suspect is dangerous. See Michigan v. Long, 463 U.S. 1032, 1050 n. 14, 1052 n. 16 (1983). A contemporaneous consensual search does not necessarily convert the stop into a de facto arrest. Royer, 460 U.S. at 501. An officer may ask questions to determine identity and to gather information confirming or dispelling his suspicions, and Miranda's custodial interrogation requirements do not apply. See Berkemer v. McCarty, 468 U.S. 420, 439 (1984). Other factors relevant to the scope of an investigative detention include whether a suspect's freedom of movement is restrained, the justification for doing so, and the amount of force employed to accomplish the restraint. See Tehrani, 49 F.3d at 61.
With these principles in mind, the court turns to the two-part Terry inquiry: whether the initial stop was reasonable; and if so, whether the duration and scope of the stop were reasonable. Objectively, an evaluation of all of the facts reflects that when Sullin activated his lights, tapped his siren, and stopped the Coulombe vehicle, the stop was based on a reasonable suspicion of criminal activity. Prior to August 21, 2006, police intelligence provided ample reason to believe that Coulombe was involved in cross-border bulk cash and narcotics smuggling. He had previously crossed the border in a vehicle used to hide money in a secret trunk compartment. On another occasion, a pound of marijuana was discovered hidden in a vehicle he was driving. And, on two other occasions, authorities found bulk marijuana hidden in vehicles registered to his company.
The events that occurred after 2:00 P.M. on August 21 further enhanced the reasonable basis for the stop. When Coulombe entered the United States, he completed the Customs Declaration, thereby denying that he possessed bulk currency or illegal substances. His vehicle was registered to his company which was the registered source for two other vehicles discovered with hidden compartments and drugs. The secondary K-9 inspection revealed the scent of narcotics in the rear quarter panel although narcotics were not found. Coulombe told the police he was on a short sojourn to a nearby resort village. However, subsequent physical and electronic surveillance revealed that he lied. Suspiciously, he drove one hundred and seventy miles south of his stated destination, stopped for a short period in a rest area, and then began traveling north again. A rest area north of New York City is hardly a tourist Mecca for foreign travelers.
After the agents reestablished physical surveillance, they saw Coulombe exit the highway several miles and two exits from the Canadian border. While stopped for gas, Coulombe lifted his vehicle's rear hatch and did something with his hands in the rear compartment. He then retraced his route to Interstate 87, and resumed his trip north toward Canada. While contiguous to the last exit before the border and within eyesight of the border itself, he saw an outbound checkpoint, police cars with lights flashing, and travel reduced to one lane. He stopped on the highway for thirty seconds as he observed the checkpoint, and then immediately left the highway at the last exit. It is certainly reasonable to conclude that he was seeking to avoid border inspection. Within minutes, Sullin stopped him.
Given the prior police intelligence, the secondary K-9 alert, Coulombe's lie about his destination, the clandestine nature of his trip, and his evasion of the outbound checkpoint, the police had ample suspicion to believe that he was involved in criminal activity; namely, narcotics or bulk cash smuggling. Accordingly, the stop was reasonable.
The next question is whether the stop was reasonable in its duration and intensity. First of all, the total elapsed time from the stop until the cash was discovered was ten minutes. Furthermore, a substantial part of the ten minutes was devoted to the search itself. Therefore, the time that elapsed between the actual stop and Coulombe's and Stankovich's permission to search was only a few minutes. In that few minutes, Coulombe was evasive about his destination and evasive about his language comprehension. Given the events at the border the preceding day, the agents clearly knew that Coulombe was conversant in English. Given the level of suspicion and Coulombe's initial evasiveness, the duration of the stop was eminently reasonable.
Not only was the duration reasonable, but the scope and intensity were reasonable because the police quickly and efficiently sought to confirm or dispel the reason for the stop in the first place. The only means for them to do so was to seek permission to search which they immediately did. Absent permission, the only alternative investigative means available would have been a K-9 search, but consent obviated that need. Clearly, they did not anticipate the need for a dog because they had no reason to anticipate Coulombe's evasive behavior in order to avoid the border inspection.
Eventually, five officers in four cars participated in the stop, and no objectively reasonable person would have believed that he was being stopped for a traffic infraction. Yet, only two officers approached the vehicle, and the others remained at a distance. No officer had a weapon drawn. While Coulombe remained in the car until he and Stankovich consented to search, it was not unreasonable to then remove him and frisk him. Sullin reasonably suspected a drug offense, Coulombe was evasive and nervous, and Sullin was concerned for police safety. Because Coulombe became increasingly erratic during the search, it was not unreasonable for Sullin to handcuff him and sit him at the curb for the few minutes it took to complete the search. Within minutes, the bulk cash was discovered, Coulombe's handcuffs were removed, and he drove his own vehicle to the station. Given the circumstances, the scope and intensity of the search were reasonable.
C. Coulombe's Consent
A warrantless search is reasonable if it is based on voluntary consent given by one authorized to do so. See Florida v. Jimeno, 500 U.S. 248, 250-51 (1991) (citing Katz, 389 U.S. at 360; Illinois. v. Rodriguez, 497 U.S. 177 (1990); Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). "Voluntariness is a question of fact determined by a 'totality of the circumstances.'" United States v. Isiofia, 370 F.3d 226, 231 (2d Cir. 2004) (quoting Schneckloth, 412 U.S. at 227). The government must prove by a preponderance of the evidence that he who consented made a free and unconstrained choice and did not simply acquiescence to a show of authority. Consent is involuntary if it is exacted from explicit or implicit coercion caused by implied threat or covert force. See United States v. Snype, 441 F.3d 119, 131 (2d Cir. 2006) (citing Schneckloth, 412 U.S. at 228; Isiofia, 370 F.3d at 230; United States v. Wilson, 11 F.3d 346, 351 (2d Cir. 1993)); see also United States v. Arango-Correa, 851 F.2d 54, 57 (2d Cir. 1988) (free and unconstrained choice). The ultimate question is whether the police had a reasonable basis to believe that the person consented to the search. See Isofia, 370 F.3d at 231. Whether probable cause exists is irrelevant to the consensual search analysis. See Schneckloth, 412 U.S. at 227.
Police may not exceed the scope of the authorization given. Scope refers to consensual parameters and may include limitations regarding time, duration, area and intensity. Like voluntariness, scope is a question of fact based upon the totality of the circumstances, and the government bears the burden of proof. See United States v. Gandia, 424 F.3d 255, 265 (2d Cir. 2005). The standard for measuring scope is "'objective' reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Jimeno, 500 U.S. at 251 (citations omitted). Coulombe only argues that he did not consent. He makes no argument — nor could he on the basis of the current record — that the scope and intensity of the search exceeded the permission given.
Prior decisions have identified various factors as relevant to the voluntariness inquiry, including: (1) whether the police made a show of force or engaged in similar coercive conduct; see Drayton, 536 U.S. at 204 (use of force or overwhelming show of force, intimidating movements, brandishing of weapons, blocking of exits, threats, commands or authoritative tone of voice, and show of badge); (2) whether the police advised a suspect of his right to refuse consent (although not constitutionally mandated); see Drayton, 536 U.S. at 206; Ohio v. Robinette, 519 U.S. 33 (1996); United States v. Mendenhall, 446 U.S. 544, 558-59 (1980); United States v. Yu-Leung, 51 F.3d 1116, 1119 (2d Cir. 1995); United States v. Price, 599 F.2d 494, 503 n. 11 (2d Cir. 1979); (3) threats to seek or obtain a search warrant; see United States v. Tutino, 883 F.2d 1125, 1137 (2d Cir. 1989); United States v. Faruolo, 506 F.2d 490, 494 (2d Cir. 1974); (4) the location where consent was obtained; see Mendenhall, 446 U.S. at 559; United States v. Boone, 245 F.3d 352, 363 (4th Cir. 2001) (public parking lot); Arango-Correa, 851 F.2d at 57 (custodial confinement in a police station); (5) a defendant's maturity, sophistication, physical and mental health, and emotional state; see U.S. v. Smith, 260 F.3d 922, 924 (8th Cir. 2001) (age, intelligence, education, whether influenced by drugs or alcohol, whether he understood his rights); United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir. 1983) (age, literacy, demeanor, prior legal experience); Price, 599 F.2d at 503 (age, maturity, education, intelligence, experience); and (6) a defendant's objections, affirmative acts, or statements of acquiescence (although silence alone does not constitute consent); see Gandia, 424 F.3d at 265 (citing United States v. Moran Vargas, 376 F.3d 112, 113-14 (2d Cir. 2004)).
Several of these factors involve an evaluation of the defendant's conduct, including whether he adopted a cooperative posture with the police in order to divert suspicion or for some other reason. See Boone, 245 F.3d at 363; Price, 599 F.2d at 503 n. 11. However, non-resistance is not synonymous with cooperation and is not a factor demonstrating consent. See United States v. Jaras, 86 F.3d 383, 390 (5th Cir. 1996). And, simple acquiescence to matter-of-fact police declarations does not constitute voluntary consent. See United States v. Baro, 15 F.3d 563, 567 (6th Cir. 1994). If consent is voluntary, it makes no difference that it reflects a decision adverse to the suspect's self-interests. Cf. Mendenhall, 446 U.S. at 555-56 ("It may happen that a person makes statements to law enforcement that he later regrets, but the issue in such cases is not whether the statement was self-protective, but rather whether it was made voluntarily."); United States v. Gorman, 355 F.2d 151, 158-59 (2d Cir. 1965). Ultimately, all circumstances must be evaluated, and no single factor controls. Cf. United States v. Bye, 919 F.2d 6, 9 (2d Cir. 1990) (voluntariness of a Miranda waiver). Police conduct is not coercive if a reasonable person would feel free to decline an officer's request, terminate the encounter, and refuse consent. See Drayton, 536 U.S. at 204.
As for Coulombe's consent, the court first observes that he has offered no direct proof — either through his testimony or that of anyone else — that he did not consent, or that any consent given was induced by coercive police conduct. Of course, he has no obligation to do so. By alleging a warrantless search, he is entitled to suppression unless the government proves that the police conduct was reasonable. It is worth noting, however, that the court's decision is limited by the factual assertions advanced. In any event, the government must prove by a preponderance of the evidence that the search was consensual — the only non-waived theory advanced as an exception to the Fourth Amendment's warrant requirement.
When Charles first asked Coulombe for permission to search the car, Coulombe was seated in his vehicle in the presence of his wife on a public highway surrounded by four police officers and four cars. Obviously, Coulombe knew that this was no routine traffic stop. The police did not tell Coulombe why they had stopped him, nor did he ask. In fact, the conversation never got that far because Coulombe's first reaction was to evade the question about his destination and lie about his ability to understand Charles's question. While the number of officers and the cars certainly constituted a show of force, nothing else about the encounter demonstrates that Coulombe's consent to search was simple acquiescence to explicit or implicit coercion arising from police threats or conduct. No weapons were drawn, neither Coulombe nor his wife were ordered from the vehicle, the encounter was on a public thoroughfare, not the coercive environment of a police car or station, and the request for consent occurred within minutes of the initial stop. While Coulombe was not advised of his right to refuse consent, that factor alone is not dispositive. The police made no intimidating movements, they issued no threats or commands, they used no authoritative language, and they did not threaten to get a search warrant. Despite Coulombe's apparent effort to now interpose the language barrier as antithetical to informed consent, there was no language barrier. Coulombe was a mature, intelligent businessman. There is no evidence that he suffered from any physical or mental impairments, that he was influenced by drugs or alcohol, or that he was emotionally incapable of making a rational decision. If anything, his decision might have been influenced by his wife's consent. Nonetheless, her consent was not the direct or indirect by-product of any police coercion either.
The fifth officer — Prenoveau — did not arrive until later.
Accordingly, the government has satisfied its burden of proving that Coulombe voluntarily consented to the search of the car. Therefore, evidence seized from that car and Coulombe's subsequent statement are untainted and admissible.
IV. Conclusion
For the reasons stated, it is hereby
ORDERED that the motion of Andre Coulombe to suppress tangible and intangible evidence and statements is DENIED.