United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2005
Charles R. Fulbruge III
Clerk
No. 04-30772
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESSIE FACEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CR-50111-ALL
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Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Following a conditional guilty plea, Jessie Facen was
convicted of possession with intent to distribute 50 grams or
more of crack cocaine. He was sentenced to 235 months in prison
and a five-year period of supervised release. Facen appeals the
district court’s denial of his motion to suppress evidence and
statements obtained from him by law enforcement officers
following an encounter at the Greyhound Bus Station in
Shreveport, Louisiana.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-30772
-2-
In reviewing the denial of a motion to suppress, we employ a
two-tiered standard of review, examining the factual findings of
the district court for clear error and its ultimate conclusion as
to the constitutionality of the law enforcement action de novo.
United States v. Navarro, 169 F.3d 228, 231 (5th Cir. 1999). We
review the evidence in the light most favorable to the prevailing
party. United States v. Nichols, 142 F.3d 857, 866 (5th Cir.
1998).
Facen first argues that he was unconstitutionally seized
when the officers boarded the bus. Nothing the officers did or
said would suggest to a reasonable person that he was not free to
leave the bus or otherwise terminate the encounter. See United
States v. Drayton, 536 U.S. 194, 201 (2002); Terry v. Ohio, 392
U.S. 1, 19 n.16 (1968). Thus, there was no seizure when the
officers boarded the bus.
Facen also argues that he was unconstitutionally seized when
the officer asked him to go to the baggage area of the terminal
because ticketed passengers would not normally go to that area.
Nothing in the record suggests that the manner in which he asked
Facen to accompany him to the baggage area was unduly coercive.
Viewing the facts in the light most favorable to the Government,
we conclude that a reasonable person would have felt free to
refuse the officer’s request. Thus, no seizure occurred.
Drayton, 536 U.S. at 201.
No. 04-30772
-3-
Facen asserts that his consent to search his backpack was
invalid because he had been unconstitutionally seized. Given our
conclusion that no seizure occurred, this argument is unavailing.
The district court’s finding that Facen voluntarily consented to
the search of his backpack was not clearly erroneous. See United
States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002).
Facen also argues that any consent he gave to search his
backpack did not encompass consent to search the sealed
containers inside his backpack. “The scope of a search is
generally defined by its expressed object.” Florida v. Jimeno,
500 U.S. 248, 251 (1991). In this case, Facen consented to the
officer’s search of his backpack for illegal drugs. Facen,
knowing the contents of his backpack had the responsibility to
limit the scope of his consent if he deemed it necessary to do
so. See United States v. Rich, 992 F.2d 502, 507 (5th Cir.
1993). Facen stood silent when the officer began opening the
packages. Facen’s failure to object to the continuation of the
search once consent was given was properly considered as an
indication that the search of the wrapped packages was within the
scope of the initial consent to search the backpack. See id. at
506-07; United States v. McSween, 53 F.3d 684, 688 (5th Cir.
1995).
Finally, Facen argues that the bus sweep involved in this
case is no different than the drug interdiction checkpoints
invalidated in City of Indianapolis v. Edmond, 531 U.S. 32
No. 04-30772
-4-
(2000). City of Indianapolis v. Edmond is inapposite as Facen’s
case did not involve the stop of a vehicle at a highway
checkpoint.
AFFIRMED.