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No. 95-4048

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of Nebraska.

Winston Thomas, formerly known *

as Michael S. Diaz, *

*

Appellant. *

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 Submitted: April 8, 1996

 Filed: May 10, 1996

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Before MAGILL, HENLEY, and LOKEN, Circuit Judges.

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MAGILL, Circuit Judge.

Winston Thomas appeals the district court's determination that

evidence seized from a passenger in his car could be used against him at

trial. Because Thomas voluntarily consented to the search, we affirm.

I.

On December 10, 1993, driver Thomas, passenger Galinda Edwards, and

a backseat passenger were traveling on Interstate 80 in Nebraska in a

rental car driven by Thomas when officer James Brady of the Nebraska State

Patrol pulled them over for speeding. After inspecting Thomas's license

and car rental agreement, Brady issued Thomas a speeding citation.
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During the stop, officer Brady noticed that there was a 2700- mile

difference between the car's checkout mileage and the present mileage on

the odometer. Because Thomas was only 400 miles from Denver, where he

rented the car, Brady became suspicious that Thomas was transporting drugs.

Brady requested that Thomas accompany him back to the police car. Once

there, Brady asked Thomas if he could search the car. He provided Thomas

with a consent-to-search form. At this point, Officer Brady cautioned

Thomas that he need not consent to the search. Thomas nevertheless

reviewed and signed the consent form.

After searching the car, officer Brady performed a pat down of the

two passengers. Neither possessed any weapons, but a search of Edwards

revealed that she was carrying brown paper bags containing cocaine. At

this point, all three passengers were placed under arrest and the car was

impounded.

Thomas was charged with possession with intent to distribute more

than fifty grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1).

Prior to trial, Thomas moved to suppress any evidence seized from his

vehicle and from the person of Edwards on the grounds that officer Brady

lacked an articulable and reasonable suspicion to justify the detention of

Thomas following the identification procedure, vitiating the consent to

search. 

The magistrate judge recommended suppression of any evidence seized

from the vehicle or from Thomas's person. However, the magistrate judge

concluded that Thomas lacked standing to challenge the search of Edwards,

and thus he recommended that the cocaine seized from Edwards should be

admitted at trial.

The district court adopted the recommendation. Thomas then

conditionally pled guilty to the indictment, reserving the right to appeal

the partial denial of his suppression motion. He was sentenced to 324

months imprisonment. Thomas appeals.
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II.

We assume without deciding that Thomas would have standing to

challenge the evidence seized from Edwards as fruits of his illegal

detention. However, the evidence may still be admissible if Thomas

voluntarily consented to the search.

The district court determined that Thomas's consent to search was

involuntary. Because this conclusion was based solely on the fact that the

consent followed an illegal detention, and because the district court did

not take into account subsequent events that demonstrate that the consent

was freely given, we conclude that the district court's finding is clearly

erroneous. See United States v. White, 42 F.3d 457, 459 (8th Cir. 1994)

(standard of review).

The present case is controlled by this Court's opinion in United

States v. Ramos, 42 F.3d 1160 (8th Cir. 1994), cert. denied, 115 S. Ct.

2015 (1995). In Ramos, following an illegal detention, the defendant

consented to a search of his car. Before consenting, Ramos was

specifically made aware of his right to refuse to consent. Based on these

facts, the panel concluded that the voluntary consent rendered the evidence

seized admissible. Id. at 1164.

The Ramos court noted that the fact of an illegal detention is only

the start, and not the end, of the Fourth Amendment analysis. Even given

the illegal detention, a court must still decide if the consent was

nevertheless "sufficiently an act of free will to purge the primary taint."

Id. (quoting Wong Sun v. United States, 371 U.S. 471, 486 (1963)). The

court went on to conclude that the consent given was "sufficiently an act

of free will":

The officer told [the defendant], both orally and in writing,

that he did not have to sign the consent form. Such a warning

is not required by law, Schneckloth v. Bustamonte, 412 U.S. 218

(1973), and so the fact that the
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officer gave it indicates rather strongly to us that he was not

attempting to exploit an illegal situation. The arrest and

consent were close in time, and there were no intervening

circumstances, but the officer's conduct was in good faith, and

the violation of Terry was not flagrant. What happened here,

really, went beyond voluntary consent. It was an affirmative

waiver of [the defendant's] Fourth Amendment right to prevent

a search of his vehicle.

Id.

In the present case, Thomas was specifically made aware of his right

to refuse consent. As in Ramos, this "indicates rather strongly to us that

[the officer] was not attempting to exploit an illegal situation." Id.

Further, the officer in this case had some suspicion that criminal activity

was afoot, and the violation of Terry was not flagrant. Based on these two

factors, we hold that "signing the consent form was sufficiently an act of

free will [by Thomas] to purge the taint of the preceding illegal

detention." Id. Therefore, the consent was voluntary and the evidence

discovered during the search was admissible.

III.

Thomas voluntarily consented to the search, rendering admissible the

evidence seized from the person of Edwards. Accordingly, we affirm the

decision of the district court on alternate grounds.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.