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Agent Tamez had yet to return Perales’s driver’s coercive police procedures; (3) the extent and
license or issue him the warning citation. Perales level of the defendant’s cooperation with the
remained seated in the front seat of Agent Tamez’s police; (4) the defendant’s awareness of his right
patrol unit unrestrained.2 to refuse consent; (5) the defendant’s education
and intelligence; and (6) the defendant’s belief
Agent Tamez and Agent Moya searched Perales’s that no incriminating evidence will be found.
vehicle and ultimately found 2.99 kilograms of “Although all six factors are relevant, no single
cocaine concealed in the engine compartment of factor is dispositive.”
the truck.3 Agent Tamez also found a notebook
piece of paper with directions to Charleston, South Perales only argues that the district court’s consent
Carolina, in Perales’s back pocket. Perales was finding was based on the erroneous conclusion
subsequently charged by criminal complaint with that Agent Tamez did not use coercive procedures.
conspiring to possess with intent to distribute, and Contrary to Perales’s assertions, Cavitt did not
possessing with intent to distribute, more than 500 establish a bright-line rule that an officer’s
grams of cocaine. retention of identification documents requires a
finding of coercion. an officer’s retention of
Before trial, Perales sought to suppress the identification documents is a factor the court
bundles of cocaine discovered during the search of considers when determining whether the officer
the truck, arguing, inter alia, that he did not used coercive police procedures, but is otherwise
voluntarily consent to the search of his vehicle. At not controlling or dispositive.
the close of testimony and after hearing additional
argument from both sides, the district court To the point, Agent Tamez’s initial stop was
concluded that Agent Tamez conducted a “pretty justified, and, during the traffic stop, Agent Tamez
routine traffic stop,” and that “[Perales] clearly was permitted to examine Perales’s driver’s
gave consent.” As is relevant to the instant appeal, license and registration and to run computer
the district court found that Agent Tamez did not checks. Approximately ten minutes elapsed
use coercive police procedures, although it between Agent Tamez’s initial encounter with
ambivalently opined that placing Perales in the Perales and the moment he asked for Perales’s
patrol unit might have been coercive. consent. Although it is unclear how long it took
Agent Tamez to complete the checks and at what
“Where the Government asserts that no search point the computer checks were actually
warrant was required because the officer obtained completed, it is clear that they were not completed
voluntary consent for the search, the when Agent Tamez sought Perales’s consent. That
[G]overnment must prove by a preponderance of Agent Tamez had not completed running the
the evidence that consent was freely and necessary computer checks before seeking
voluntarily given.” Whether “consent to a search Perales’s consent, and that Perales does not
was in fact ‘voluntary’ or was the product of challenge the length of time that elapsed before
duress or coercion, express or implied, is a Agent Tamez sought consent, are both crucial to
question of fact to be determined from the totality our determination that the district court did not
of all the circumstances.” This court uses a six- clearly err in finding Agent Tamez’s retention of
factor evaluation to determine whether a Perales’s identification documents was not
defendant voluntarily consented to a search. The coercive.
factors include: (1) the voluntariness of the
defendant’s custodial status; (2) the presence of Perales cites as an additional indication of

Sept./Oct. 2018 www.texaspoliceassociation.com • 866-997-8282 29