Page 40 - 2023 May June TPA Journal_Neat

a party with actual or apparent authority.” factors are relevant, but no single one is dispositive
(emphasis by ed.) Malagerio has never disputed or controlling.
that he had authority to consent to the search of his
trailer, so only the first and second prongs are at Malagerio’s custodial status was not voluntary, but
issue. most or all of the remaining factors tilt in favor of
the search’s being voluntary. The officers described
The existence of effective consent, like its scope, Malagerio as “very cooperative,” and “cordial.”
is determined with reference to “objective Malagerio described his own demeanor similarly.
reasonableness.” “Recitation of magic words is That testimony suggests he was not coerced. There
unnecessary; the key inquiry focuses on what the is no indication that he is uneducated or
typical reasonable person would have understood unintelligent. And he claims that he feared no
by the exchange between the officer and the discovery of incriminating evidence because “[i]t’s
suspect.” just guns in Texas.”

Three officers testified that Malagerio consented It is less clear whether Malagerio knew he had the
verbally, and he signed a consent form. In calls right to refuse. He says that he knew he had that
from jail, he also mentioned that he had been right and exercised it, but the district court deemed
cooperative. That evidence indicates that Malagerio him incredible. Even assuming Malagerio did not
gave effective consent. Malagerio counters that the understand his right to refuse consent, that still
officers’ testimony was internally inconsistent. For leaves four factors in favor of voluntariness. We
instance, one agent remembers initially asking for perceive no error in the denial of the motion to
consent “to enter his trailer to get his Canadian suppress on this ground, much less the kind of
passport and his identification documents,” while obvious error that would be necessary to prevail on
another says that the initial consent also covered plain error review. Malagerio has not made the
the firearms. But those discrepancies are minor, and requisite showing that his consent to the search was
the district court, viewing the testimony as a whole, either ineffective or involuntary. His challenge to
deemed the officers consistent and credible. As for the lawfulness of the search thus fails. Having
the written consent, Malagerio’s objection is rejected the challenges to the arrest and the search,
stronger— because he was in handcuffs, he could we AFFIRM the conviction.
not have signed it before the search, and “an earlier
illegal search” cannot be justified“based upon a U.S. V Malagerio, No. 21-10729, 5 th Cir., Sept.
later consent to an additional search.” But the 23,2022.
written consent is irrelevant if, as the officers
testified and as Malagerio implied in his jail calls, ****************************************
he consented verbally before the search. We thus ****************************************
reject Malagerio’s theory that he did not effectively EVIDENCE – Confession, only, may support a
consent to the search. conviction.

Turning to voluntariness, we apply a six-factor test: If a defendant confesses to the offense of indecency
(1) the voluntariness of the defendant’s custodial with a child against a child who can’t communicate
status; (2) the presence of coercive police and the conduct resulted in no apparent injury,
procedures; (3) the extent and level of the should a conviction be overturned because there is
defendant’s cooperation with the police; (4) the no evidence of the crime itself besides the
defendant’s awareness of his right to refuse to defendant’s confession? No. When sufficient
consent; (5) the defendant’s education and evidence exists in the record to support the
intelligence; and (6) the defendant’s belief that no conviction for a sexual offense with no perceptible
incriminating evidence will be found. All six harm against a pre-verbal child victim and a

May - June 2023 www.texaspoliceassociation.com • (512) 458-3140 35