Page 43 - November December 2020 TPA Journal

inconsistent statements is a coercive police proce- voluntariness.
dure. We agree. Officer Rodriguez’s statements— C. Cooperation with the Police
made during a valid traffic stop that was pro- Cooperation by the defendant is a factor favoring
longed due to reasonable suspicion—were a a finding that consent was voluntary. The district
means of investigating in order to confirm or dis- court adopted the MJ’s conclusion that Soriano
pel her suspicions. was more cooperative than not and that this factor
As to the issue of deceit, after Officer Rodriguez weighed in favor of voluntariness. We agree.
ran the criminal history and immigration checks in In addition to opening his trunk after Officer
the patrol car and returned and confronted Soriano Rodriguez requested that he do so, Soriano also
with the fact that he had lied about his most recent allowed her to test the tint of his driver’s side win-
arrest, he acted confused about her questions. dow and showed her the top layer of clothes in his
Officer Rodriguez told Soriano that she believed suitcase when she asked what was inside of it.
that her questions had been clear and that Officer Although Officer Rodriguez pointed out several
Ramirez agreed that her questions were clear. In instances where Soriano expressed nervousness,
actuality, however, the extent of the interaction she also noted that he appeared to be calm and
between Officers Rodriguez and Ramirez was lim- cooperative at several other points during the
ited to Rodriguez remarking “seems kind of encounter. Thus, viewing the evidence in the light
weird” and Ramirez responding “yes.” In other most favorable to the Government, the finding that
words, Officer Ramirez never explicitly told Soriano “was more cooperative than not,” is plau-
Officer Rodriguez that he believed that her ques- sible, and its conclusion that this factor weighed in
tions were clear. Soriano argues that Rodriguez favor of voluntariness was not clear error.
used this misrepresentation of unanimity to pres- D. Right to Refuse Consent
sure him and that doing so amplified the coercive An officer’s failure to inform a suspect that he has
nature of her accusations. a right to refuse to consent to a search militates
The district court determined that Officer against voluntariness. The district court adopted
Rodriguez’s statement to Soriano, despite being the MJ’s determination that Officer Rodriguez
untruthful, was not the type of “trickery” this court never informed Soriano of his right to refuse con-
has deemed a coercive tactic. Additionally, the dis- sent and that factor weighed against voluntariness.
trict court observed that the statement was meant The Government does not directly challenge this
to ensure that Soriano understood Officer determination but contends that Soriano’s experi-
Rodriguez throughout the entire stop and to ence with law enforcement should offset the
prompt him to answer truthfully—not to pressure amount of weight for this factor.
him to consent to the search. We agree. In United States v. Ponce, we held that “experi-
The video footage of the encounter makes clear ence in the criminal justice system can offset ‘any
that although both officers were present, Officer weight’ accorded to an officer’s failure to advise a
Ramirez never directly questioned or was suspect of his right to resist a search.” Here,
involved in questioning Soriano. Moreover, Soriano’s presentence report (PSR) indicates that,
Soriano does not challenge the district court’s while he has no prior convictions, he has been
finding that Officer Rodriguez’s statement was arrested on three occasions. Still, neither the MJ
intended to ensure that Soriano understood her nor the district court made any findings as to
and to prompt his truthfulness but not to pressure whether Soriano’s criminal history would provide
him to consent to the search. Soriano has failed to him with enough familiarity with the criminal jus-
show that the district court clearly erred in holding tice system to result in his knowledge of the right
that this factor weighed in favor of a finding of to refuse consent. Because the extent of Soriano’s

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