Page 30 - TPA Journal May June 2022

Michalik contested those characterizations, determination; thus, the fifth factor indicates that
asserting that the agents called him a liar and made the interview was not custodial. Weighing the
“disparaging and accusatory statements” about his totality of the circumstances, the district court did
family. The district court did not clearly err in its not err in concluding that Michalik was not in
credibility determination in favor of the agents, and custody.
the third factor thus indicates that the interview was
not custodial. Michalik also appeals the admission of evidence
from his office laptop, averring that he did not
The fourth factor—the amount of restraint on the voluntarily consent to its search. “A search
suspect’s physical movement—also suggests that conducted pursuant to consent . . . remains one of
the interview was not custodial. Michalik contends the well-settled exceptions to the Fourth
that the presence of six to eight armed agents Amendment’s warrant and probable-cause
indicates that he was physically restrained. He also requirements.” The government must show by a
notes that agents escorted him outside to the car. preponderance of the evidence that the suspect
The presence of armed agents, however, does not voluntarily consented to the search, and whether
necessarily render an interview custodial. The the consent was voluntary is a factual finding,
agents never handcuffed or otherwise physically reviewed for clear error.
restrained Michalik’s movement. ndeed, the
district court found that the interview ended when To determine the voluntariness of consent, the court
Michalik “became frustrated with the agents’ assesses six factors: “(1) the voluntariness of the
questioning.” Moreover, the fact that Michalik’s defendant’s custodial status; (2) the presence of
mother-in-law left to take his stepdaughter to coercive police procedures; (3) the extent and level
school while agents were searching the house of the defendant’s cooperation with the police; (4)
suggests that a reasonable person would have felt the defendant’s awareness of his right to refuse
free to leave. consent; (5) the defendant’s education and
intelligence; and (6) the defendant’s belief that no
The fifth factor—whether officers informed the incriminating evidence will be found.”
suspect of his freedom to leave—also supports a
finding that Michalik was not in custody. Michalik The first factor for determining whether consent to
contends now, as at his suppression hearing, that a search was voluntary—the voluntariness of the
the agents failed to tell him he was free to leave. suspect’s custodial status—favors the government.
He also asserts that the other occupants of his house As previously discussed, the district court did not
confirmed that the agents didn’t inform Michalik err in determining Michalik was not in custody and
that he could leave. On that contention, there is a was informed that he was free to leave.
dispute of fact. Agents DePaola and Juarez testified
that they told Michalik “repeatedly” that he was not The second factor—the presence of coercive police
under arrest and was free to leave before the procedures— favors the government. Michalik
interview. The agents testified that avers that the agents used “coercive and misleading
both Michalik and his family appeared to statements . . . to obtain the written consent” to
understand what they were saying. access his laptop. Specifically, he asserts that he
Considering the divergent accounts, the district asked the agents whether they needed a warrant
court made an explicit credibility determination before searching his laptop and that they told him
that the agents’ testimony was credible and reliable. they already had a warrant. Agent DePaola, on the
The district court did not clearly err in its other hand, testified that that claim was “totally

26 www.texaspoliceassociation.com • (512) 458-3140 Texas Police Journal