*Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-10647

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAYMOND HARRY NORRIS, also

known as Raymond Norris,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Northern District of Texas, Lubbock

(5:94-CR-32-9)

_________________________________________________________________

April 30, 1998

Before WISDOM, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

After a careful study of the briefs and consideration of the

oral arguments presented to the court, we affirm. Even if Mr.

Norris was stopped without reasonable suspicion, the alleged Fourth

Amendment violation does not mandate suppression of either the

seized cocaine or the confession. With respect to the cocaine, it

is well established that “voluntary consent can validate a search
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even when the consent is preceded by a Fourth Amendment violation.”

United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir.), cert.

denied, 508 U.S. 944 (1993). Similarly, a confession following a

Fourth Amendment violation may be admissible if given voluntarily

and in the absence of other, aggravating, factors. See, e.g.,

Rawlings v. Kentucky, 448 U.S. 98, 107-110 (1980).

With respect to both Norris’s consent to search and confession

of guilt, the government is required to prove the voluntariness of

the consent by a preponderance of the evidence. See United States

v. Hurtado, 905 F.2d 74, 76 (5th Cir. 1990) (en banc). The

district court’s finding of voluntariness must be sustained unless

clearly erroneous. See Kelley, 981 F.2d at 1470 (consent to

search); United States v. Doucette, 979 F.2d 1042, 1045 (5th Cir.

1992) (confession). If, as here, the district court’s finding of

voluntariness is based on oral testimony at a suppression hearing,

“‘the clearly erroneous standard is particularly strong since the

judge had the opportunity to observe the demeanor of the

witnesses.’” Kelley, 981 F.2d at 1470 (citing United States v.

Sutton, 850 F.2d 1083, 1086 (5th Cir. 1988)).

The voluntariness of Norris’s consent to the search and the

absence of evidence suggesting that the police engaged in coercive

tactics are sufficient to overcome the assumed Fourth Amendment

violation. See Kelley, 981 F.2d at 1471-72; United States v.
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Sheppard, 901 F.2d 1230, 1234-36 (5th Cir. 1990). Although Norris

did not receive Miranda-like warnings prior to the search, such

warnings are unnecessary to establish the voluntariness of consent.

See Sheppard, 901 F.2d at 1234-36 (holding that defendant’s was

voluntary even though he was not informed of his right to refuse

consent); United States v. Gonzalez-Basulto, 898 F.2d 1011, 1012

(5th cir. 1990) (same). In any event, here, the officers testified

that they asked Norris three separate times whether it was still

permissible to continue their search--the functional equivalent of

informing Norris of his right to refuse consent. Each time, Norris

approved. He has offered no evidence contradicting the officers’

testimony in this respect or otherwise suggesting that his consent

was involuntary.

Nor does it matter that Norris may have consented to the

search because he believed discovery of the cocaine was inevitable

and discovery under such circumstances would be more incriminating.

“[T]he question is not whether [the defendant] acted in her

ultimate self-interest, but whether she acted voluntarily.” United

States v. Mendenhall, 446 U.S. 544, 559 (1980). As we explained in

United States v. Gonzalez, 842 F.2d 748 (5th Cir. 1988), “consent

by suspects with knowledge that incriminating evidence will be

discovered during a search would never be truly voluntary if selfinterest were the primary focus of the voluntariness inquiry.” Id.
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at 755 n.3. Again, Norris has not demonstrated that his consent to

search was in any way involuntary, and therefore, the district

court’s refusal to suppress the seized cocaine was not clear error.

As for the confession, this case is similar to Rawlings v.

Kentucky, supra. In upholding the admissibility of a confession

obtained following a Fourth Amendment violation, the Supreme Court

focused on five factors: (1) the fact that the defendant received

Miranda warnings immediately prior to giving his confession, (2)

the absence of coercive tactics by the police, (3) the spontaneity

of the defendant’s confession, (4) the alleged Fourth Amendment

violation presented a close issue, and (5) the defendant never

adduced evidence that his confession was involuntary. See 448 U.S.

at 107-110. At least four of these factors is present in this

case. Norris received oral and explained written Miranda warnings

(which he signed) immediately prior to giving his confession.

Norris has adduced no evidence that the police engaged in coercive

tactics or that his confession was involuntary. Finally, whether

stopping Norris was supported by reasonable suspicion in this case

presents a close issue. For these reasons, the district court did

not clearly err in refusing to suppress Norris’s confession.

For the foregoing reasons, the judgment of the district court

is

A F F I R M E D.
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