Page 31 - TPA Journal January February 2024

Alkheqani “one on one, not in groups,” in conversa- Extent and Level of Defendant’s Cooperation
tions with a polite tone, (3) “[p]olice never made any
“Cooperation by the defendant is a factor favoring a
promises, threatened to get a warrant, or used any
deception,” and (4) officers “calmly explained his finding that consent was voluntary.” Even if a defen-
rights several times, including the right to say ‘no.’” dant expresses several instances of being nervous, this
Alkheqani maintains that the district court clearly erred factor weighs in favor of voluntariness if the defendant
in weighing this factor in favor of voluntariness. He is “more cooperative than not.” Here, Alkheqani con-
cedes that, though he was nervous and frustrated at
notes, as the district court did, that he was ordered out
of his car at gunpoint and was surrounded by multiple times, he was “generally responsive and polite” and
officers. Further, Alkheqani complains that deceit was that the district court’s finding on this factor is plausi-
in fact used, as officers falsely said they wanted to ble. Thus, this factor also weighs in favor of voluntari-
search in order to rule Alkheqani out as a suspect and ness.
that they would not search his car without him present.
Defendant’s Awareness of his Right to Refuse
Finally, Alkheqani was handcuffed in the back of a
police car, with four officers present, when he gave his “An officer’s failure to inform a suspect that he has a
consent. right to refuse to consent to a search militates against
voluntariness.” Alkheqani concedes that he was told
Having reviewed the conversation between the officers
several times he did not have to consent and that his
and Alkheqani, we find that the district court did not
consent could be withdrawn. Consequently, this factor
clearly err in finding this factor weighed in the
weighs in favor of voluntariness.
Government’s favor. Even accepting that the officers
told Alkheqani that he could be present for the search, Defendant’s Education and Intelligence
he had already said several times that his house and car
could be searched before those promises were made. The district court found that this factor weighed in
Further, Alkheqani claims the officers misrepresented favor of voluntariness. Alkheqani argues this was clear
they were searching for exculpatory evidence, but, error, pointing to his ninthgrade education, repeated
when Alkheqani asked what was happening, the police questions to the officers, and statements that he did not
forthrightly said that there was an incident earlier in understand what was happening. We find that the dis-
which “[s]omeone got hurt,” that his truck matched the trict court’s conclusion was not clearly erroneous. As
suspect vehicle, and that his physical description the lower court explained, “Alkheqani was 26 years
matched the suspect’s description. Thus, while there is old, spoke fluent English, and competently interacted
some gamesmanship by the detective, this was not the with police;” while he had only a ninthgrade educa-
kind of trickery designed to put pressure on Alkheqani tion, he had “substantial experience in the criminal jus-
to consent or impair his judgment. Further, even tice system;” and though he asked many questions
accepting that these two facts weighed in favor of about the situation, his intelligent questions and
involuntariness, the other facts highlighted by the dis- responses “actually show his intelligence” and sup-
trict court—the passage of time, individual conversa- ports the conclusion that he “appears to have under-
tions, no threat to get a warrant, and calm explanations stood what was happening.” At the very least, this con-
of rights, including the right to refuse—remain in favor clusion is plausible in light of the record as a whole.
of voluntariness. At the very least, when viewing the Soriano supports this conclusion. There, the Fifth
evidence in a light most favorable to the Government, Circuit found no clear error in the district court’s find-
the district court’s conclusion remains “plausible in ing that this factor “weigh[ed] marginally in favor of
light of the record as a whole.” Thus, there was no voluntariness[.]”
clear error here.
The Fifth Circuit noted that defendant was “37 years
old at the time of his arrest and had completed six
years of formal education in Mexico.” The appellate

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