IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30115
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ELWIN DEMETRIUS BOONE,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
(October 5, 1995)
Before HIGGINBOTHAM, DUHÉ, and EMILIO GARZA, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Elwin Boone pled guilty to possessing marijuana with intent to
distribute and to carrying a firearm while committing a drug-
related offense. Boone reserved his right to appeal the district
judge's denial of his motion to suppress the marijuana and the gun.
In response to Boone's exercise of his right, we affirm.
The facts concern an encounter between law enforcement
officials and Boone, and Boone's challenge rests on the Fourth
Amendment. In such a case, our role is well settled. We accept
the district court's findings of fact unless they are clearly
erroneous or influenced by an incorrect view of the law. United
States v. Garcia, 849 F.2d 917, 917 n.1 (5th Cir. 1988). We view
the evidence in the light most favorable to the party prevailing
below, id., and we keep these principles most firmly in mind when
reviewing "credibility determinations[,] because the trier of fact
has seen and judged the witnesses." United States v. Breeland, II,
53 F.3d 100, 103 (5th Cir. 1995) (internal quotation omitted). We
review de novo the district court's ultimate conclusions on Fourth
Amendment issues. United States v. Diez, 977 F.2d 163, 164 (5th
Cir. 1992). But see United States v. Valdiosera-Godinez, 932 F.2d
1093, 1098 n.1 (5th Cir. 1991) (holding that appellate courts
should apply the clear error standard to a trial court's
determination of whether a seizure occurred), cert. denied, 113 S.
Ct. 2369 (1993).1
We pause to note that these preliminary statements are more
than boilerplate. We do not sit to resolve conflicts in
descriptions of events. We do not find compelling arguments based
on "facts" inconsistent with those found by a district judge on the
basis of credible oral testimony, even when another credible
witness presents contradictory evidence.
Boone's primary argument is that his encounter with Customs
Agent Moorehouse constituted an illegal seizure because law
enforcement officials did not possess reasonable suspicion of
wrongdoing. See Terry v. Ohio, 392 U.S. 1 (1968). The district
court held that the encounter did not constitute a seizure and
1
Because our decision would be the same regardless of the
standard of review, we do not examine this apparent intra-circuit
conflict.
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therefore that no reasonable suspicion was needed. We agree with
the court below.
Boone's first contention is that the district court committed
clear error by crediting the law enforcement officers' version of
the events because of alleged contradictions in the officers'
testimony. We disagree. Those contradictions that actually
existed dealt with details irrelevant to the issue of whether a
seizure occurred. One concerned whether agents communicated orally
or with hand motions. Another focused on the fact that an officer
outside a bus could not hear conversation inside, but an officer
inside the bus could hear conversation outside. A third consists
of the fact that an officer in a police report wrote that agents
boarding the bus identified themselves as law enforcement, but on
cross-examination he admitted that he was presuming that the agents
did so from his knowledge of standard procedure. None of these
differences in the description of events bears a connection to the
facts relevant to a Terry analysis, and they are not sufficiently
egregious or numerous to allow an appellate court to overrule a
district court's findings on credibility.
Boone renews his Terry stop argument on the grounds that the
events as found by the district court compel us to hold that a
seizure occurred. The facts relevant to this analysis are as
follows. Detective Johnson and Agent Chirinos boarded the bus,
identified themselves as a law enforcement officials, informed the
passengers that they were looking for contraband and illegal
immigrants, and asked everyone to leave the bus. Several law
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enforcement officials were stationed outside, all carrying visible
guns in hip holsters and wearing some insignia of authority. In
particular, Agent Moorehouse stationed himself near the terminal
door to watch the passengers file in. Boone passed Moorehouse in
line. Moorehouse then caught up with Boone, tapped him on the
shoulder, and asked in a businesslike and courteous tone of voice
to speak with him. Boone agreed.
Boone and Moorehouse then stepped four feet away from the line
of passengers filing into the terminal. Several people moved in
and out of the terminal around where the two men were standing.
Continuing to speak in a calm tone of voice, Moorehouse asked Boone
for his name and some identification. Boone responded by handing
Moorehouse his bus ticket. Moorehouse examined the ticket, which
was issued to "D. Jackson," and asked what the "D" stood for.
Boone replied that D. Jackson was an alias and that his real name
was Elwin Boone. Moorehouse asked Boone where he was coming from,
where he was going, and how long he had spent in his point of
origin. Boone replied Houston, Mobile, and two days. Agent
Moorehouse asked Boone for whom he worked, and Boone responded that
he was unemployed and had been looking for work in Houston. Agent
Moorehouse asked Boone if he had checked any luggage, and Boone
replied that he had only the carry bag. Moorehouse then requested
for Boone's consent to search the bag. The encounter lasted around
five minutes.
We find this a close case, but ultimately agree with the
district court that no seizure occurred. We focus initially on the
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moment at which Moorehouse tapped Boone on the shoulder and asked
if he would answer a few questions. Had this been the first
interaction between Boone and law enforcement, we would have little
difficulty labeling the encounter innocuous. But Boone was
previously diverted from his intended course of action when the
officers, showing significant signs of authority and stating their
business as law enforcement, ordered him off the bus.2 But see
United States v. Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th Cir.
1991) (holding that law enforcement officials' request via hand
signals that suspects join them outside a rental unit did not make
the encounter a seizure), cert. denied, 113 S. Ct. 2369 (1993).
Stopping Boone after the previous statement that the officers were
looking for contraband and illegal immigrants implied that Boone
himself was suspect of illegal activity. See United States v.
Glass, 741 F.2d 83, 85 (5th Cir. 1984) (holding that the defendants
were seized when officers informed them that they were suspected of
illegal activity). Nevertheless, the order to leave the bus was a
general one, the rest of the setting public, and Moorehouse's
request communicated in a noncoercive manner. The implication that
the officers suspected Boone of illegal activity is only that.
From Boone's point of view, Moorehouse might have been choosing
passengers randomly as the they alighted from the bus. A
reasonable person would have considered herself free to refuse
Moorehouse's request. See Florida v. Bostick, 501 U.S. 429, 436
2
Boone, surprisingly, does not focus on this fact in his
brief.
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(1991) (holding that no seizure occurs when "a reasonable person
would feel free to decline the officers' requests or otherwise
terminate the encounter"); INS v. Delgado, 466 U.S. 210, 220 (1984)
(holding that an INS official's brief questioning of a factory
worker, after a brief tap on the shoulder to gain her attention,
did not constitute a seizure).3
We now consider the rest of the encounter. At this point,
Moorehouse asked Boone a series of questions, many of these while
holding Boone's ticket. The scope and number of these questions
exceeded a minimal request for name, identification, and business,
but not by much. The encounter lasted longer than a minimal street
interaction, but not by much. Moorehouse was holding Boone's
ticket during most of these questions, but Boone had offered the
ticket. Moreover, many of Moorehouse's inquiries concerned
information from the ticket, suggesting to a reasonable person that
Moorehouse was not holding the ticket to assure she remained
nearby. See United States v. Berry, 670 F.2d 583, 597 (5th Cir.
1982) (holding a suspect's ticket in view for a minimal amount of
time does not elevate the encounter into a seizure). There were
several police officers around, but the encounter occurred in a
3
We disagree with Boone that United States v. Gonzales, 842
F.2d 748, 752 (5th Cir. 1988), created a per se rule that any
physical contact whatsoever between a law enforcement officer and
a citizen constitutes a seizure. On the contrary, Gonzales held
that physical contact between the officer and the citizen "has been
consistently regarded by this Court as persuasive evidence that a
fourth amendment seizure has occurred." 842 F.2d at 752. The
persuasive force of the contact is proportional to its coerciveness
and intrusiveness. It is difficult to imagine a form of physical
contact less coercive or intrusive than a tap on the shoulder to
get attention.
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public place with many people coming and going. See United States
v. Berd, 634 F.2d 979, 985 (5th Cir. 1981) (airport). The officers
asked Boone to step four feet away to allow passengers to continue
to flow into the terminal, but no one restricted Boone's freedom of
movement on the tarmac, and the encounter might have felt a good
deal more coercive and urgent had several impatient passengers
remained at Boone's back. See Berry, 670 F.2d at 597 (stating that
"blocking an individual's path or otherwise intercepting him to
prevent his progress in any way is a consideration of great, and
probably decisive, significance"). Again, we find this case to be
close. But remembering that Boone was free to refuse the initial
questioning altogether, we agree with the district court that a
reasonable person would have considered herself free to ask for the
ticket's return and to terminate the encounter.
Given our characterization of the encounters between Boone and
law enforcement officials as consensual, and our agreement with the
district court that Boone was free to terminate the encounter at
any time, we also affirm the district court's ruling that Boone
voluntarily consented to the search of his bag.
AFFIRMED.
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