United States Court of Appeals
Fifth Circuit
F I L E D
In the November 8, 2004
United States Court of Appeals
Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-30205
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSEPH LEE JACKSON,
Defendant-Appellant,
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
Before SMITH and GARZA, Circuit Judges, motion to suppress was denied, he entered a
and VANCE,* District Judge. conditional guilty plea. He now appeals the
denial of the motion to suppress. Concluding
JERRY E. SMITH, Circuit Judge: that Jackson’s Fourth Amendment rights were
not violated, we affirm.
Arrested after being found in a Greyhound
bus station with cocaine strapped to his waist, I.
Joseph Jackson was charged with possession In the morning hours of May 23, 2003, a
of cocaine with intent to distribute. After his bus traveling from Dallas, Texas, pulled into
the Greyhound bus station in Shreveport,
Louisiana, for a stop scheduled to last approx-
*
District Judge of the Eastern District of imately thirty minutes. Two plain clothes of-
Louisiana, sitting by designation.
ficers, Sergeant Kevin Dunn and Deputy James search now complete, McLamb communicated
McLamb, with their weapons concealed, to Dunn his suspicion that a passenger might
approached the driver as the bus doors opened be carrying drugs; McLamb placed the dog
and asked permission to search the vehicle for back in the police vehicle.
illegal narcotics. The driver agreed.
Dunn entered the station and noticed Jack-
Dunn boarded the bus and announced over son in the restaurant area.2 Jackson looked
the intercom that he was a narcotics officer nervous, was sweating heavily, and appeared
and that he would be bringing a drug-sniffing to be having difficulty breathing, all the while
dog onto the bus to search for drugs. Stand- sitting in what Dunn regarded as an unusually
ing near the driver’s seat, and out of the way erect position. Dunn approached Jackson and
of the aisle, Dunn advised the passengers that asked whether he could speak with him; Jack-
they could either remain on the bus during the son agreed but appeared so nervous that Dunn
search or depart before the dog was brought asked whether he would prefer to tal k in a
aboard. The passengers were further advised more private place. Jackson answered af-
that they could either leave their carry-on bags firmatively, so Dunn led him to a nearby bag-
on the bus or take them as they departed. In gage claim area. There, Dunn asked Jackson
the event any passengers were unable to exit whether he was carrying any weapons; Jack-
the bus on their own, they were advised that if son answered that he was not.
they did not choose to remain on the bus they
could receive assistance in exiting. All the Dunn then undertook a pat-down search
passengers chose to disembark. during which he felt an unknown object
around Jackson’s waist. Jackson was then
As the passengers exited, Dunn noticed one handcuffed by Dunn and McLamb. Dunn
passenger, Jackson, acting in a manner Dunn asked Jackson to identify the object. Jackson
regarded as nervous: He was standing “ex- was at first unable to provide any explanation
ceptionally straight”; “his eyes were very wide but on further questioning told the officers it
open”; his posture was “unusually straight”; was a “back brace.” When McLamb raised
and he stepped quickly off the bus, avoiding Jackson’s shirt to investigate, the officers ob-
eye contact and not responding when Dunn served powder cocaine in plastic bags taped to
said “Good morning.” Once the passengers his waist. Jackson was formally arrested and
had exited, McLamb boarded with the dog and advised of his rights.
searched the passenger compartment. The dog
alerted on an empty seat and two bags stowed Charged with possession of cocaine with
above the seat,1 so McLamb suspected that intent to distribute, Jackson moved the district
someone was “body-carrying” drugs. The court to suppress the cocaine as evidence;
adopting the recommendation of the magis-
trate judge, the district court denied the mo-
1
At the suppression hearing, neither officer
could recall what steps had been taken to identify
2
the owners of the two bags, but the briefs reveal When Dunn approached Jackson in the bus
that Jackson claimed one bag, and the other was station, he did not know whether the seat or the
never claimed. No evidence or contraband was bags to which the dog alerted belonged to Jackson.
found in either piece of luggage.
2
tion. Jackson entered a conditional plea of A.
guilty, reserving his right to appeal the denial. “[N]ot all personal intercourse between po-
licemen and citizens involves ‘seizures’ of per-
II. sons.” Terry v. Ohio, 392 U.S. 1, 19 n.16
We use a two-tiered standard of review for (1968). If every encounter between a citizen
appeals from the denial of a motion to sup- and a police officer constituted a seizure, it
press: Factual findings are accepted unless “would impose wholly unrealistic restrictions
clearly erroneous, and the district court’s ulti- upon a wide variety of legitimate law enforce-
mate conclusion as to the constitutionality of ment practices.” United States v. Mendenhall,
law enforcement action is reviewed de novo. 446 U.S. 544, 554 (1980). Thus, “[o]nly
See United States v. Orozco, 191 F.3d 578, when the officer, by means of physical force or
581 (5th Cir. 1999) (citing Ornelas v. United show of authority, has in some way restrained
States, 517 U.S. 690, 699 (1996)). We view the liberty of a citizen may we conclude that a
all the evidence introduced at the suppression ‘seizure’ has occurred.” Terry, 392 U.S. at 19
hearing in the light most favorable to the pre- n.16.
vailing party, in this case the government. Id.
(citing United States v. Ponce, 8 F.3d 989, Law enforcement officers do not violate the
995 (5th Cir. 1993)). Fourth Amendment’s proscription of unrea-
sonable seizures “by merely approaching an in-
III. dividual on the street or in another public
Jackson’s primary argument is that he was place, by asking him if he is willing to answer
subjected to an unconstitutional seizure when some questions,” or “by putting questions to
two officers boarded the bus, with the driver’s him if the person is willing to listen.” Florida
consent, after it pulled into the station for a v. Royer, 460 U.S. 491, 497 (1983) (plurality
scheduled layover and instructed bus passen- opinion); Florida v. Rodriguez, 469 U.S. 1,
gers that they could remain on the bus during 5-6 (1984) (per curiam). Even without having
a canine search or disembark (with or without an objective level of suspicion, officers may in-
their carry-on luggage) until the search was itiate contact with a person and ask for iden-
completed.3 We disagree. Nothing about the tification and request permission to search
officers’ conduct impaired Jackson’s right baggage, provided they do not induce
(which he exercised) to leave the bus and ter- cooperation by coercive means.4 Whether a
minate the encounter with police. person has been seized in these circumstances
is a question of voluntariness: “If a reasonable
person would feel free to terminate the en-
3
counter, then he or she has not been seized.”
Jackson was thus forced to ask himself what
The Clash famously asked two decades ago:
“Should I stay or should I go now?” Doubtless
4
Jackson knew that if he stayed on the bus and the See Florida v. Bostick, 501 U.S. 429, 434-35
dog alerted to him “there would be trouble.” But (1991); see also United States v. Drayton, 536
given the officers’ ultimate discovery of the cocaine U.S. 194, 200-01 (2002) (“The Fourth Amendment
strapped to his waist, the trouble turned out to be permits police officers to approach bus passengers
“double,” notwithstanding his decision to “go.” at random to ask questions and to request their con-
See The Clash, Combat Rock (1982). sent to searched, provided that a reasonable person
would understand that he or she is free to refuse.”).
3
Drayton, 536 U.S. at 201. brandishing of weapons, no blocking of exits,
no threat, no command, not even an authorita-
The police practice at issue in this case is tive tone of voice.” Id. In sum, nothing the
different from that in Bostick and Dray- officers did or said “would suggest to a rea-
ton—i.e., approaching bus passengers random- sonable person that he or she was barred from
ly to ask questions and to request their consent leaving the bus or otherwise terminating the
to searches. Here, the officers did not do that, encounter.” Drayton, 536 U.S. at 204.
nor did they ask consent to be searched.
Instead, they merely informed the passengers Indeed, Jackson never asserts that police
that they would be conducting a canine search conduct prevented him from leaving the bus
of the bus and that the passengers were free to and thus terminating the encounter with police.
disembark until the search was complete. For Instead, Jackson insists that this case is
purposes of the Fourth Amendment, however, different because he had to disembark the bus
the relevant inquiry remains the same: whether to avoid an encounter at close proximity with
the police conduct at issue, in light of all the a narcotics canine, and that this itself should
circumstances, would have led a reasonable constitute a seizure within the meaning of the
person to believe that he was barred from Fourth Amendment.
leaving the bus or otherwise terminating the
encounter. See Drayton, 536 U.S. at 204. But in advancing this argument, Jackson
confuses a reasonable person’s belief that he
B. was not free to terminate the encounter with
The police did not seize Jackson—or the police (which is the touchstone for Fourth
rest of the passengers to whom such a holding Amendment purposes) with his desire to leave
would theoretically be applicable—when they the bus (which has little, if any, relevance for
boarded the bus and gave passengers the Fourth Amendment purposes). Whether
choice of remaining there while they led a ca- Jackson desired to leave the bus, or whether
nine down the aisle or disembarking until the he regarded it as inconvenient, says nothing
search was complete. The officers gave the about whether the police conduct was coer-
passengers no reason to believe they were re- cive. See Bostick, 501 U.S. at 435-37. And
quired to stay on the bus during the canine the fact that disembarking was the only means
search. To the contrary, the officers explicitly of terminating the encounter only serves to
informed passengers of the option to disem- underscore the dispositive nature of the coer-
bark the bus with or without their carry-on cion inquiry—whether, taking into account all
items, and left the aisle free for passengers to the circumstances surrounding the encounter,
exit. In light of the fact that every passenger disembarking was an option that a reasonable
(Jackson included) exercised this option, it person would have regarded as being available,
cannot be said that the offer of the option to or whether a passenger would have felt
leave, and thus terminate the police encounter, compelled to remain onboard and be subjected
was understood as anything but genuine. to the canine search.
Moreover, as in Drayton, “[t]here was no To be sure, if the officers had acted in a
application of force, no intimidating move- manner that conveyed to a reasonable person
ment, no overwhelming show of force, no that they were compelled to remain onboard
4
and face the dog search, this would be a dif- Dunn conducted a pat-down search of Jackson
ferent case. Here, however, the police acted in in the baggage area, however, that the nature
a professional and polite manner, instructing of the encounter began to take the character of
the passengers of their right to disembark the a Terry stop.6
bus before the canine search. That Jackson
may not have desired to disembark is not con- In evaluating the legality of a Terry stop,
trolling; that the police did not coerce passen- this court must consider (1) whether the offi-
gers into remaining onboard is. Thus, absent cer’s action was justified at its inception and
coercive police conduct leading a passenger to (2) whether it was reasonably related in scope
believe he was required to remain onboard, the to the circumstances that justified the interfer-
minor inconvenience, if any, suffered by ence in the first place. Williams, 365 F.3d at
Jackson in disembarking must yield to what 405 (citing Terry, 392 U.S. at 19-20). As we
has been referred to as the “compelling interest have said, at its inception, Dunn’s encounter
in detecting those who would traffic in deadly with Jackson was justified because it was con-
drugs for personal profit.” Mendenhall, 446 sensual. Indeed, even absent Jackson’s con-
U.S. at 561-62 (Powell, J., concurring). sent, the fact that Dunn was aware of the dog
alert and that one of the passengers was likely
IV. carrying drugs on his person, coupled with
We now turn from the question whether Jackson’s nervous and erratic behavior (in-
Jackson was seized to whether he was sub- cluding what Dunn regarded as his unusually
jected to an unreasonable search. That inquiry erect posture), would be sufficient to premise
asks whether the pat-down search in the bus a reasonable and particularized suspicion that
station, a so-called Terry frisk, was permissi- Jackson was the drug courier. At that point,
ble. even though probable cause to arrest was lack-
ing the officers were within their constitutional
A. authority to pat him down for their personal
The magistrate judge found that Jackson safety, given what they regarded as the real
consented to Dunn’s initial request to speak threat that a narcotics carrier may be armed.
with him, as well as his subsequent invitation, United States v. Jordan, 232 F.3d 447, 449
made after observing Jackson’s nervous be-
havior, to speak in the more private baggage
area. Thus, the encounter between Dunn and
Jackson in the bus station was not an investi-
gatory detention under Terry, but was instead
5
a consensual encounter.5 It was only when (...continued)
Terry stop”).
6
Jackson contends that the patdown was non-
5
See United States v. Williams, 365 F.3d 399, consensual; the government disagrees. Because the
405 (5th Cir. 2004) (holding, as to the same bus magistrate judge did not make a finding regarding
station, that bus passengers “voluntary entry into whether the patdown was consensual, and because
[the] baggage handling area for purposes of an- “[w]e do not sit to resolve conflicts in descriptions
swering questions does not amount to a seizure, nor of events,” United States v. Boone, 67 F.3d 76, 78
does it convert the consensual encounter into a (5th Cir. 1995), we assume arguendo that the pat-
(continued...) down was nonconsensual.
5
(5th Cir. 2000).7 In fact, the officers testified Because Jackson was not seized on the bus,
that in their experience, it was not unlikely that and the pat-down search was permissible, the
a drug courier might be armed and dangerous, order denying the motion to suppress is
and that they conducted the pat-down search AFFIRMED.
to further their own safety.
As a final matter, with respect to the offic-
ers’ actions in lifting Jackson’s shirt after feel-
ing objects at his waist, the magistrate judge
found no problem, citing the plain-feel doc-
trine announced in Minnesota v. Dickerson,
508 U.S. 366 (1993). We need not rely on
that doctrine to affirm, however, because “the
raising of a suspect’s shirt by a law enforce-
ment officer does not violate the bounds es-
tablished by Terry.” Reyes, 349 F.3d at 225
(citing United States v. Hill, 545 F.2d 1191,
1193 (9th Cir. 1976)). Thus, the officers were
within their constitutional authority when they
raised Jackson’s shirt, an act that in turn led to
the discovery of the cocaine and Jackson’s
arrest.
7
Although Justice Harlan was not certain, when
Terry was decided, that suspected narcotics
possession was the type of crime “whose nature
creates a substantial likelihood that [the suspected
offender] is armed,” Sibron v. New York, 392 U.S.
40, 74 (1968) (Harlan, J., concurring), courts have
achieved such certainty through time. See, e.g.,
United States v. Vasquez, 634 F.2d 41, 43 (2d Cir.
1980) (officers justified in making protective frisk,
“particularly in view of violent nature of narcotics
crime”); United States v. Oates, 560 F.2d 45, 62
(2d Cir. 1977) (observing that firearms are the
“tools of the trade” of narcotics dealers); United
States v. Trullo, 809 F.2d 108, 113 (1st Cir. 1987)
(frisk for weapons may accompany seizure of drug
trafficking suspect); see also United States v.
Reyes, 349 F.3d 219, 225 (5th Cir. 2003) (finding
no error in pat-down of suspected drug courier in
bus station based on officer’s testimony that in his
experience “weapons accompany narcotics”).
6