IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 93-2633
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH WENDELL COOPER,
Defendant-Appellant.
_______________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_______________________________________________
(January 13, 1995)
Before JONES and STEWART, Circuit Judges, and DUPLANTIER*, District
Judge.
CARL E. STEWART, Circuit Judge:
This case involves the issue of whether a suspect's Fourth
Amendment rights were violated when police conducted a pat-down
search of his outer clothing and subsequently arrested him for
possession of crack cocaine, which the officer could identify by
feeling through the defendant's clothing. Finding no error in the
district court's denial of defendant's motion to suppress evidence
of the drugs, we AFFIRM.
Facts and Proceedings Below
Defendant, Keith Wendell Cooper, was convicted after a bench
trial on federal charges of possession with intent to distribute
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
more than 50 grams of cocaine base (crack) and was sentenced to 121
months incarceration, five years of supervised release, and a $50
special assessment. He filed a pretrial motion to suppress,
alleging that the search of his person was unconstitutional because
a reasonable person would not have understood that he could refuse
the officer's request to conduct a pat-down body search. After a
hearing on the motion was conducted in conjunction with the bench
trial, the district court denied the motion, finding that Cooper
consented to the search.
On February 1, 1993, Houston police officers Bill Corley and
James Ellis were conducting surveillance at the Greyhound Bus
Station looking for narcotics traffickers. Officers Corley and
Ellis were both twenty-three year veterans of the Houston Police
Department. Corley had worked in the narcotics division of the
department for eight years. Ellis was sergeant in the narcotics
division. Corley and Ellis were assigned to the narcotics
interdiction unit, regularly conducting surveillance at train
stations, bus stations, airports, etc., to identify drug
traffickers.
Officer Corley testified at the suppression hearing/trial that
he observed defendant, a 26-year-old man with a tenth grade
education, entering a side door on the south side of the gate area
of the station ("side gate" no. 14). The side gate was actually a
passageway for inbound and outbound bus passengers, called a
"boarding gate." At the time, no bus was parked at the gate.
Corley had no prior knowledge concerning Cooper. Corley testified
2
that Cooper rapidly scanned the area, looking back several times,
as he walked across the gate area to Gate 9 carrying a small gym
bag. Corley testified that he first became suspicious of Cooper
because he entered the station through the side gate, something
which he deemed unusual and which he deemed characteristic of
narcotics traffickers. Corley also testified that he does not
remember ever witnessing anyone entering the station through that
gate who did not turn out to be carrying drugs. He testified that
drug traffickers are aware that police watch the ticket counter, so
they enter through the side gate, which allows them to bypass the
counter. Corley also testified that Cooper constantly and
rapidly scanned the area, carried a small bag that would not hold
many clothes, and arrived very shortly before the bus was due to
leave. These factors also made the officers suspicious, because
these actions are characteristic of drug traffickers. Corley
testified that Cooper once again scanned the area behind him as he
boarded the bus.
Cooper testified for the limited purpose of the motion to
suppress. He denied that he was looking back over his shoulder as
he walked through the bus station lobby. He confirmed that he
entered the side entrance to the terminal, but claimed to have
entered through gate no. 15 and that he walked directly to a pay
phone to make a collect call. He claimed to have then waited until
the bus was called and then walked through gate no. 9 to board the
bus. For the next 5-6 minutes, he claimed he donned earphones and
listened to a personal radio.
3
Corley further testified that after Cooper boarded the bus,
their suspicions aroused, he and Ellis made inquiries and
ascertained that Cooper was headed for Pascagoula, Mississippi.
They then boarded the bus Cooper had boarded. Ellis sat down in
the driver's seat and Corley proceeded to the rear of the bus and
entered the seat behind Cooper. Corley testified that as he walked
past Cooper, he observed that Cooper was squirming around in his
seat and that below Cooper's belt there was an unusual horizontal
bulge between the crotch area and the waistline. Corley testified
that this area is a common place for drug traffickers to hide drugs
because male police officers may feel hesitant about carefully
patting down this area of a male suspect, and they may not do a
thorough enough job to locate the drugs. Cooper insisted that the
package of crack was not discernable beneath his clothing, because
he was wearing baggy clothes.
Corley testified that he identified himself as a police
officer and asked if he could talk to Cooper. Ellis was out of
earshot of the ensuing conversation between Cooper and Corley,
although he confirmed that Corley displayed his police badge to
Cooper at the outset of their conversation. Corley admitted that
he did not advise Cooper that he did not have to speak with him;
nevertheless, Cooper engaged in a conversation with Corley.
Corley testified that he asked Cooper his destination, to
which Cooper replied Pascagoula, Mississippi. In response to
Corley's question regarding the duration of his visit, Corley
stated that Cooper answered that he intended to remain in
4
Pascagoula one day. Corley testified that when Cooper produced the
bus ticket for Corley's inspection, his hands were shaking. Corley
also testified that Cooper became visibly more shaken as the
conversation ensued. Corley observed that the ticket was a one-way
ticket and had been purchased two hours prior to Cooper's arrival
at the bus station. Corley found the advance purchase and the fact
that Cooper had purchased only a one-way ticket when he knew he was
going to be in Pascagoula only one day both suspicious and
characteristic of drug traffickers. Corley maintains that he gave
the ticket back to Cooper and asked if he had any identification,
to which Cooper replied that he did not. Corley stated he then
advised Cooper that he was a narcotics officer and that Cooper
immediately asked Corley if he wanted to look in his gym bag.1
Ellis also testified that he saw Cooper pull out the bag and place
it on an adjacent seat before Corley inspected it. The gym bag
contained a shirt and pair of pants.
Corley testified that he then asked Cooper if he "wouldn't
mind standing up and letting me pat him down." According to
Corley, Cooper replied "no" and stood up. Officer Ellis also
testified that Cooper stood up voluntarily, although he could not
hear the conversation between Cooper and Corley. As Corley patted
Cooper down, he felt the suspicious bulge between his waist and
crotch. He stated that he immediately recognized the contents of
the bulge to be round wafers of crack cocaine. The officer said he
1
Corley said he recognized the offer to inspect the bag as a
diversionary tactic often employed by individuals carrying drugs on
their person.
5
asked Cooper to identify the bulge, and that Cooper remained
silent. The officer then placed Cooper under arrest, handcuffed
him, and escorted him out of the bus. Corley testified that Cooper
did not protest or withdraw his consent while conversing with the
officer. Once Cooper was taken off the bus and led to a bus
terminal office, Corley located nine wafers of crack cocaine in a
plastic baggie inside of Cooper's underwear, weighing approximately
241 grams (8.5 - 9 oz.) and having a street value of approximately
$19,000.
After he was given his Miranda warnings, Corley stated that
Cooper blurted out "Damn, who snitched me off?" Corley estimated
that fewer than five minutes had elapsed from the moment the
officers entered the bus until Cooper consented to the pat-down,
was arrested, and was escorted off the bus.
Cooper's version of what happened when Corley approached him
differs. Cooper testified that Corley approached him from the
aisle, identified himself as a police officer and displayed his
badge. He says that the officer asked him if he was carrying any
firearms, and peered at the gym bag. Cooper claims that Corley
asked him if the bag contained narcotics, to which Cooper said he
responded "no" and offered to let the officer inspect the bag.
Cooper testified that Corley then inspected Cooper's gym bag,
patted Cooper down while he was still seated, and then pulled
Cooper up and searched him again. When Corley was questioning him
and patting him down, Cooper claimed he was "a little scared" and
felt that it he had tried to move, Corley "probably [would have
6
become] physical." Cooper testified that he did not feel that he
could leave the bus. Cooper testified that he did not consent to
a body search at any time, and that Corley began touching him as
soon as he showed his police badge. Cooper said that he only
consented to a search of his bag. He said that he did not verbally
object when Corley touched him because he was scared.
The district court apparently accepted the officers' version
of what happened during the encounter, thereby rejecting Cooper's
contention that he was jerked to his feet and searched. The
district court concluded that Cooper had consented to the pat-down.
Standard of Review
Appellate review of a district court's ruling on a motion to
suppress based on testimony at a suppression hearing is subject to
the clearly erroneous standard. United States v. Bradley, 923 F.2d
362, 364 (5th Cir. 1991).
The Government has the burden of proving by a preponderance of
the evidence that a consent to search was voluntary. United States
v. Yeagin, 927 F.2d 798, 800 (5th Cir. 1991); United States v.
Ponce, 8 F.3d 989, 997 (5th Cir. 1993). The voluntariness of
consent is a question of fact to be determined from a totality of
the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227,
93 S.Ct 2041, 2048, 36 L.Ed.2d 854 (1973). We review a trial
court's finding of voluntariness for clear error. United States v.
Olivier-Becerril, 861 F.2d 424, 425-26 (5th Cir. 1988).
This court considers six factors when evaluating the
voluntariness of consent:
7
(1)the defendant's custodial status;
(2) the presence of coercive police procedures;
(3) the extent and level of the defendant's cooperation with
the police;
(4) the defendant's awareness of his right to refuse consent;
(5) the defendant's education and intelligence
(6) the defendant's belief that no incriminating evidence will
be found.
United States v. Ruigomez, 702 F.2d 61, 65 (5th Cir. 1983); United
States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993). No one
factor is dispositive in determining the voluntariness of consent.
See United States v. Gonzales, 842 F.2d 748, 754-55 (5th Cir.
1988), overruled on other grounds, United States v. Hurtado, 905
F.2d 74 (5th Cir. 1990); United States v. Ruigomez, 702 F.2d at 65.
The ultimate conclusion on Fourth Amendment issues drawn from
the evidence is reviewed de novo. United States v. Roch, 5 F.3d
894, 897 (5th Cir. 1993).
Analysis
The district court found that Cooper's lack of resistance
amounted to consent for the police officer to pat him down. The
court therefore concluded that the search was consensual. While we
disagree that nonresistance amounts to consent,2 we nonetheless
2
For constitutional purposes, nonresistance may not be equated
with consent. United States v. Most, 876 F.2d 191, 199 (D.C. Cir.
1989).
8
conclude that the district judge properly denied the motion to
suppress.
Cooper alleges that the district court erred in finding that
he consented to the pat-down search, because a reasonable person in
his circumstances would have felt compelled to cooperate. Thus,
he asserts that his lack of resistance to the search was not
tantamount to consent. He points out that the police officer never
informed him that he did not have to cooperate. Given the indicia
of authority and power that police carry, Cooper argues that a
reasonable man would have felt compelled to cooperate. The judge
specifically found that Cooper's lack of resistance amounted to
consent. Cooper argues that a reasonable person would have felt
compelled to acquiesce in the officer's requests. Cooper argues
that compelled acquiescence is not consent that is freely and
voluntarily given.
Cooper cites Florida v. Bostick, 111 S.Ct. 2382, 115 L.Ed.2d
389 (1991) in support of his position that Corley's request to pat-
down Cooper was a seizure for Fourth Amendment purposes. In that
case, the Supreme Court considered the police practice of boarding
stopped passenger buses and approaching seated passengers to ask
questions and request consent to search. The Court concluded that
such a practice does not amount to a seizure in all instances, but
the Court suggested that such a confrontation could become a
seizure if a reasonable person would not have felt free to decline
the officers' requests or to terminate the encounter. Under
Cooper's argument, the police officer's conduct constituted an
9
illegal seizure vitiating any consent, implied or otherwise, Cooper
might have given.3
The three types of police-citizen encounters
Our approach begins with some preliminary observations.
There are three types of encounters between police and individuals,
each with different ramifications under the Fourth Amendment. The
first is a consensual encounter in which an individual willingly
agrees to speak to police officers. Such contact may be initiated
by the police without any objective level of suspicion. Without
more, a consensual encounter does not amount to a "seizure" under
the Fourth Amendment. "[E]ven when officers have no basis for
suspecting a particular individual, they may generally ask
questions of that individual . . . ask to examine the individual's
identification . . . ; and request consent to search his or her
luggage . . . as long as the police do not convey a message that
compliance with their requests is required." Florida v. Bostick,
supra, 111 S.Ct. 2382, 2386.
The second type of encounter, based on Terry v. Ohio, 392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), involves a limited
investigative stop. Prior to Terry v. Ohio, any restraint on the
person amounting to a seizure for purposes of the Fourth Amendment
was invalid unless justified by probable cause. Terry created a
limited exception to this general rule: certain seizures are
justifiable under the Fourth Amendment if there is articulable
3
See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75
L.Ed.2d 229 (1983), discussed infra.
10
suspicion that a person has committed or is about to commit a
crime.
In Terry, a police officer observing three men on the street
became suspicious of their behavior. Although he was unable to say
precisely what first drew his eye to them, the 39-year veteran
officer noted that the men were strolling repeatedly back and forth
in front of a store and concluded that they appeared to be "casing"
the establishment, contemplating a robbery. The officer approached
the three men, identified himself as a police officer, and asked
for their names. Subsequently, he spun one of them around and
patted him down on the outside of his clothing and felt a pistol,
which he subsequently retrieved by removing the overcoat in which
it was located. He patted down the other two suspects, and he
retrieved a revolver from another. The Supreme Court held that the
limited frisk of the suspect's outer clothing to discover weapons
was justified in light of the officer's reasonable suspicion based
upon articulable facts that criminal activity might be afoot.
Terry, 20 L.Ed.2d at 911.
The third type of police-citizen encounter is an arrest --
plainly a Fourth Amendment "seizure" that must be based on probable
cause. A warrantless full-blown body search pursuant to a lawful
arrest is permissible.
The encounter between Corley, Ellis, and Cooper
A proper analysis of this case requires us to carefully follow
the chain of events leading up to the full search of Cooper during
11
which the drugs were found, in order to determine if Cooper's
Fourth Amendment rights were violated at any time.
The initial contact with Cooper occurred when the officers
boarded the bus and began to ask Cooper questions. In Bostick,
supra, such a police procedure of boarding buses and asking
questions has been deemed constitutional unless a reasonable person
would not have felt free to terminate the encounter or decline the
officer's requests.4 After Officers Corley and Ellis had noted
Cooper's suspicious manner of entering the bus station,5 and had
boarded the bus, Corley identified himself as a police officer to
Cooper and began to question him, asking for his ticket and
identification. We conclude that this initial contact with Cooper
clearly was a legitimate and completely consensual citizen-police
encounter to which a reasonable person would have felt free to
4
The Supreme Court noted in Bostick that the mere fact that
the suspect did not feel free to leave the bus did not mean the
police had seized him. Bostick was a passenger on a bus that was
scheduled to depart. He would not have felt free to leave the bus
even if the police had not been present. Bostick's movements were
thus confined in a sense, the Court noted, but this was the natural
result of his decision to take the bus; it says nothing about
whether or not the police conduct at issue was coercive. A similar
observation seems in order here. Moreover, we also note that it
seems more likely that Cooper would have been in an optimal
position to refuse the officer's requests -- he knew the bus was
scheduled to depart soon, so he knew the officers were going to
have to get off the bus or else be headed to Pascagoula,
Mississippi. Thus, he had a superior opportunity to hold them in
abeyance.
5
Although Cooper asserts that he did not enter through the
gate indicated by the police, a careful review of the district
court's ruling indicates that the judge accepted the police
officers' testimony and disbelieved Cooper. The judge noted that
"[t]here are lots of reasons that Mr. Cooper could have entered
through the gate side," implicitly finding that Cooper had in fact
entered through the side gate as the officers suggested.
12
decline the officer's request or terminate the encounter. See
United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870 (1980).
The officers did not brandish their weapons or attempt to detain
Cooper in any way during the initial conversation on the bus.6 If
there has been no detention, no constitutional rights have been
infringed. Florida v. Royer, supra.7
Cooper contends that he did not feel he could terminate the
encounter or refuse the officer's requests. He argues that the
encounter with Corley lost its consensual nature and that he was
illegally seized for Fourth Amendment purposes the moment the
officer asked him for permission to search him. We disagree. We
conclude that the encounter between Corley and Cooper remained
consensual throughout, or at most, did not exceed the bounds of a
permissible Terry-type investigative stop, and that the officers
6
There is also no allegation by Cooper that the officers were
attempting to prevent his possible escape from the bus by virtue of
the fact that officer Ellis positioned himself at the front of the
bus. In fact, there is nothing to indicate that Cooper knew that
Corley and Ellis were together or that Ellis was a police officer.
Thus, he could not have possibly felt that he was "hemmed in" by
Ellis at the bus door and Corley behind him.
7
Royer involved a consent to search a suspect's luggage at an
airport. The suspect, who allegedly fit the so-called "drug
courier profile" was approached by two airport detectives. Upon
request, he provided his airline ticket and driver's license.
Without returning the ticket and license, the detectives asked the
suspect to accompany them to a small room approximately 40 feet
away. Royer complied. The detectives retrieved his luggage
without consent and brought it into the room. Royer subsequently
consented to a search of the suitcases, where drugs were found.
The Supreme Court held that although Royer had consented to the
search, his consent was tainted because the law enforcement
officers' actions exceeded the permissible bounds of an
investigative stop. We conclude that a different result is in
order here, because we find that, at most, the police officer's
actions were within the permissible bounds of a Terry-stop.
13
had the right to conduct such an investigative stop based upon
their reasonable suspicion based on articulable facts that
indicated Cooper might be carrying drugs.
Upon being approached by Corley, Cooper voluntarily answered
the officer's questions, produced his ticket, and consented to a
search of his gym bag. In fact, he was the one who offered to have
the bag searched. As a result of the consensual encounter with
Cooper, Corley learned that Cooper's ticket had been paid for in
cash several hours before departure, that Cooper was staying in
Pascagoula just one night and yet purchased only a one-way ticket,
and that Cooper allegedly was not carrying any identification.
Corley testified that all these factors are indicative of a
narcotics trafficker. When combined with the fact that Corley had
seen Cooper enter the station through the boarding gate,8 had
observed Cooper squirming in his seat, had seen the suspicious
bulge9, had understood Cooper's attempt to draw attention to his
8
See United States v. Glover, 957 F.2d 1004, 1010 (2d Cir.
1992). In that case, our colleagues of the Second Circuit
recognized that an officer had reasonable suspicion to justify a
Terry stop of a passenger who, inter alia, entered a bus terminal
through a different gate from all the other passengers. As in
Glover, we feel that Cooper's actions in this regard may have been
reasonably suspicious to the officers. As noted infra, Corley
testified that he had never seen anyone entering through that gate
who did not turn out to be carrying drugs. While this behavior
taken alone would not be enough to justify an investigative stop,
all the factors observed by the officers, taken together with the
information gleaned during the consensual encounter, justified a
Terry stop.
9
Although Cooper contends that the bulge was not visible, the
district court implicitly accepted the officer's contention that
the bulge was visible in light of his comment there is "nothing
suspicious about being lumpy." In light of the size and shape of
the pack of drugs, it was not clearly erroneous for the district
14
gym bag as a diversionary tactic, and had noted Cooper's
nervousness, we conclude that while none of the factors noted by
the police officers constituted probable cause for an arrest or a
warrantless full-blown search of the defendant's person, the
officers did have reasonable suspicion based upon articulable facts
to justify a Terry stop.
Thus, the consensual encounter arguably was transformed into
a limited Terry detention. Even if Cooper felt detained in some
way, such detention was justified under Terry in light of the
reasonable suspicion the officers had. Thus, Cooper's consent was
not tainted by an illegal seizure.
We conclude that the district court correctly held that Cooper
consented to the pat-down search, although we disagree with the
Court's conclusion that mere nonresistance equates with consent.
It is undisputed that Cooper voluntarily offered his gym bag to be
searched. We find from examining the entire record that Cooper
court to have concluded that the bulge was visible. Moreover,
Cooper's contention that the bulge was not visible to Corley may
have been given less weight by the district judge, since Corley was
in an optimal position to testify as to what he could or could not
see. Cooper may have honestly believed the bulge was not visible
when in fact it was.
While the district court rejected the position that the
"suspicious bulge" was an articulable fact contributing to the
officer's reasonable suspicion that criminal activity was afoot, we
disagree. A large bulge located in such an unusual place on a
suspect may be a factor warranting reasonable suspicion. See
United States v. Lehmann, 798 F.2d 692 (4th Cir. 1986) (officer's
observation of rounded corners of a package showing through
suspect's pants in the crotch area, plus suspect's attempts to
conceal the bulge by pulling down his jacket in front, justified
seizure); cf. United States v. Wilson, 953 F.2d 116 (4th Cir.
1991) (a coat pocket is a usual location for a bulky object and did
not provide the officers reasonable suspicion under Terry.)
15
consented to the pat-down, just as he had consented to the search
of the gym bag. Officer Corley testified that he asked Cooper if
he would mind a pat-down, to which Cooper replied "no" and stood
up. Officer Ellis corroborates that Cooper stood up, thereby
discrediting Cooper's claim that he was yanked up. As noted above,
in denying the motion to suppress, the district court clearly
rejected any claim of coercive police behavior. Moreover, the
record indicates that the entire encounter lasted just a few
minutes, thereby negating any possibility that the police may have
worn down the defendant's resolve through persistence. Thus, we
agree with the district court's ultimate determination that Cooper
consented to the pat-down search.
An analysis of the six Ruigomez factors, supra, supports this
conclusion. The first factor, i.e., the defendant's custodial
status, is discussed above. The defendant was arguably not in any
sort of custodial status. At most, he was the subject of a
permissible Terry stop at the time he gave consent to the search.
The second Ruigomez factor, the presence of coercive police
procedures, was clearly rejected by the district court, as
discussed above.
The third factor is the extent and level of defendant's
cooperation with police. As discussed above, the defendant had
answered all of Corley's questions, produced his ticket when
requested, and even volunteered to a search of his gym bag. The
record also reflects that he stood up voluntarily prior to the pat-
down. His clear cooperation militates in favor of a finding of
16
consent. With regard to the fourth factor, the defendant's
awareness of his right to refuse consent, the Government cites
Schneckloth v. Bustamonte, supra, in support of its position that
there is no requirement that the government establish knowledge of
the defendant's right to refuse consent. While the government
makes a valid point that there is no absolute requirement that the
government establish that the defendant knew he could refuse
consent, the defendant's awareness of this right is nonetheless a
factor under the six-part test. However, we do not find this
factor dispositive.
The fifth factor is the intelligence and education of the
defendant. The defendant in this case had completed the tenth
grade, although he subsequently dropped out of high school. We do
not find him lacking the requisite education or intelligence to
give valid consent to the search. With regard to the sixth factor,
defendant's belief that no incriminating evidence will be found, we
note that Cooper probably did not think Corley would be able to
locate the drugs by the pat-down, much less identify the package as
containing crack cocaine. This factor militates in favor of our
finding that Cooper consented to the search. Accordingly, under
the six Ruigomez factors, we conclude that Cooper's consent to the
search was voluntary.
Once the officer felt the bulge, he was able to identify it as
crack cocaine because he could feel the wafers and was very
familiar with their size and shape. As an officer with many years
of experience and well-acquainted with narcotics, Corley had
17
probable cause to arrest Cooper at that point for possession of
crack cocaine. Cooper was not seized for Fourth Amendment purposes
until this point, when he was arrested and taken off the bus. The
crack was subsequently retrieved from Cooper's underpants. A full-
body search pursuant to a lawful arrest is permissible even without
a warrant.
Conclusion
For the foregoing reasons, we conclude that the motion to
suppress evidence was properly denied. We AFFIRM.
18