Appeal from the United States District Court for the Northern District of Iowa.
The opinion of the court was delivered by: Riley, Chief Judge
Submitted: April 14, 2010
Before RILEY, Chief Judge, COLLOTON and BENTON, Circuit Judges.
Pamela Golinveaux pled guilty to being a felon in possession of seven rounds of .22 caliber ammunition while having been previously convicted of three or more violent felony offenses, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), conditioned upon this court's review of the district court's*fn1 denial of her motion to suppress. Golinveaux argues the ammunition should have been suppressed because she did not voluntarily consent to the search of her vehicle. The district court found the search was voluntary, and we affirm.
On March 12, 2004, a loss prevention officer at the Cedar Falls, Iowa, Wal-Mart observed Golinveaux take three boxes of Sudafed cold medicine, which contains pseudoephedrine, a precursor for the manufacture of methamphetamine, from a store shelf and leave without paying. The loss prevention officer brought Golinveaux and her companion, Seth Caldwell, to the store's loss prevention office, a 12-foot by 20-foot unmarked windowless room, where they waited for the police. Two Cedar Falls police officers eventually arrived and spoke with Golinveaux. One officer asked Golinveaux for consent to search her car. Golinveaux refused and requested to speak to a lawyer, stating she "wanted that lawyer thing."
The officer then called his commanding officer, Captain Craig Berte, who came to the scene and was advised of the circumstances, including Golinveaux's request for counsel and refusal to consent to a vehicle search. After Captain Berte entered the loss prevention office, the office contained six to seven people.*fn2 Golinveaux maintains she felt physically intimidated in the room because she was the only woman present, and although she was unrestrained and seated at a table before the officers, the officers likely were standing. Captain Berte told Golinveaux he knew she had asked for an attorney and he would not ask any questions about the theft. Captain Berte then gave Golinveaux a "dangerous chemical speech," explaining he was concerned about the danger to "hundreds and hundreds" of people if Golinveaux's car contained other precursors for the manufacture of methamphetamine.*fn3 Golinveaux repeatedly said there was nothing illegal in her car.
About thirty-eight minutes after the first officers arrived, and twenty-three minutes after Captain Berte was dispatched,*fn4 Golinveaux, on the condition she could be present during its execution, consented to the search of her car for chemicals. Golinveaux apparently led the officers to her vehicle and unlocked the car using a remote control. The search revealed a black tin containing methamphetamine residue in the center console, a gold pipe containing marijuana residue in a cup holder, a loaded Harrington & Richardson .22 caliber rimfire seven shot revolver under the driver's seat, more drug paraphernalia behind the front seat, and a bloody syringe in the trunk. After the search, Golinveaux was arrested and, for the first time, given a warning pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Golinveaux was eventually transported to jail and booked. None of the officers involved in Golinveaux's arrest or booking noticed any signs that she was impaired by alcohol or drugs.
On August 26, 2008, a grand jury indicted Golinveaux for being a felon in possession of seven rounds of .22 caliber ammunition while having been previously convicted of three or more violent felony offenses,*fn5 in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Golinveaux moved to suppress the evidence seized during the search of her vehicle, arguing her Fifth and Fourteenth Amendment rights to counsel were violated when Captain Berte continued to question her after she requested a lawyer and Golinveaux's consent to search her vehicle was not given voluntarily. Golinveaux then entered a conditional guilty plea, pursuant to Fed. R. Crim. P. 11(a)(2), reserving her right to appeal all issues raised by the motion to suppress and to withdraw her guilty plea if she prevailed. The district court accepted Golinveaux's guilty plea and denied her motion to suppress, concluding (1) Cody v. Solem, 755 F.2d 1323, 1330 (8th Cir. 1985) ("[A] consent to search is not an incriminating statement."), foreclosed her right to counsel argument; (2) Golinveaux's consent to the search was voluntary; and (3) in any event the evidence was admissible because it would inevitably have been discovered.Golinveaux appeals the district court's judgment as to the voluntariness of her consent and the inevitable discovery doctrine. Because we conclude Golinveaux voluntarily consented to the search, we find it unnecessary to reach the inevitable discovery issue.
"[T]he question [of] whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, expressed or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). "We review the factual findings of the district court as to what the parties said or did for clear error; we review the district court's finding that the Fourth Amendment has not been violated de novo." United States v. Serrano-Lopez, 366 F.3d 628, 639 (8th Cir. 2004) (quoting United States v. Bloomfield, 40 F.3d 910, 918 (8th Cir. 1994) (en banc)) (internal marks omitted).
B. Voluntariness of Consent
Although a warrantless search presumptively violates the Fourth Amendment, voluntary consent to search is a well-recognized exception to the warrant requirement. See United States v. Parker, 587 F.3d 871, 878 (8th Cir. 2009). "The government bears the burden to prove by a preponderance of the evidence that consent to search was freely given, but awareness of the right to refuse is not necessary for consent to be voluntary." United States v. ...