### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-30868

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 dis t rict court’s denial of his motion to suppress. Because the district court did not err i n finding that Ansourian’s consent to the search was an independent act of free will, we AFFIRM. I. While patrolling the interstate afte r 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 23, 20 12 Lyle W . Cayce Clerk

Pursuant to 5 TH C IR

. R. 47.5 , the court hasdetermine d that thi s opinion should not be publ ished * andisnotprece dent except under the l imite d circumstanc es setforth in 5 TH C IR. R. 47 .5.4. Case: 11-30868 Document: 00511966916 Page: 1 Date Filed: 08/23/2012the patrol car and a microphone attached to Officer Averette’s clothing recorded

the encounter. O f ficer Averette asked the driver, Harout Ansourian, to step o u t a n d accompany him to the front of the patrol car. The officer questioned Ansourian about his t r av e l s, his passenger, Gayk Eskichyan, and the ownership of the truck, car, and trailer. Ansourian responded that he was driving his truck from C alifornia to Florida, that he borrowed the trailer from a friend, a n d th a t Eskichyan owned the car. Officer Averette then approached Eskichyan who had remained in the t ru c k 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, Off icer 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 c h eck 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 tal k e d w ith 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.
2 Case: 11-30868 Document: 00511966916 Page: 2 Date Filed: 08/23/2012Seven 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 traff i c violation, and said, “You’re free to go.” Ten seconds later, Officer Av e r e t te asked Ansourian for consent to search Ansourian’s “stuff.” Ansourian immediately responded, “You’re mo r e 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 t a ke very long.” Ansourian asked the offic e r wh at 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 ord e r 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 pe r sonal identification numbers, small pinhole cameras, credit card readers, and numerous electronic storage devices. Th e officers immediately arrested Ansourian and Eskichyan. A federal grand jury subsequently indicted both men, c h a r gi ng 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, arguin g th a t he was illegally detained after the computer check was completed. After a t w o - day evidentiary hearing, the district court denied the
3 Case: 11-30868 Document: 00511966916 Page: 3 Date Filed: 08/23/2012motion with a th orough 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 su spicion of additional criminal activity warranting further investigation. However, the district court concluded that the defendant voluntarily consented to the search and his cons e nt was an independent act of his free will that was sufficient to dissipate any taint of the unlawful detention. Ansourian plead ed guilty to the second count in the indictment, specifically reservi ng 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 cl e a r e rr o r 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 wh e th e r Ansourian’s consent was an independent a c t of free will. Neither party challenges the district court’s conclusion that extending the traffic stop after the license check was completed

was unconstitutional. Se e U n i t e d States v. Jenson , 462 F.3d 399, 404–06 (5th C ir . 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,
4 Case: 11-30868 Document: 00511966916 Page: 4 Date Filed: 08/23/2012but he challenges the distri c t c o u rt’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 bet w e e n 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 c onduct 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, O f f i c e r Averette communicated to Ansourian th a t “You’re free to go.” At this point, Officer Averette also returned Ansourian’s license and registration. We have previou sly 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, accomp a ni e d 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) (no ti n g that after the driver receives the
5 Case: 11-30868 Document: 00511966916 Page: 5 Date Filed: 08/23/2012license, registration, and any other material needed to leave then the encounter

after a traffic stop becomes a consensual one). Both of these intervening circumstances distingui s h th e c a se 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 a g ai n s t the government because there were “no circumstances that intervened between the detention and the consent, and thus

. . . there [was] no reason to think that [th e defendant] believed he was free to go.” 658 F.3d at 524 (internal quotations omitt ed). 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 th a t the unlawful detention spanne d o nly seven minutes, and the officers did not p u r p o s e fully use that period of illegal detention to procure the defendant’ s

c o n s e nt t o search the vehicles. In addition, the video clearly shows that th e consent was not obtained by any misrepresentations made to the defendants as Officer Averette told Ansourian that h e w a s l ooking for “anything illegal.” Moreover, once the sea r c h b egan, 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 determinatio n th a t 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. AFFIRM E D. See United States v. Bessolo , 269 F.
6 Case: 11-30868 Document: 00511966916 Page: 6 Date Filed: 08/23/2012App’x 413 ( 5th Cir. 2008) (per curiam) (unp ub l i shed) (holding that the district

court did not err in denying the motion to suppress because of the valid consent).

7 Case: 11-30868 Document: 00511966916 Page: 7 Date Filed: 08/23/2012