U.S. v. Jackson, 04-30205.

• Decision Date: 08 November 2004
• Docket Number: No. 04-30205.,04-30205.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Lee JACKSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

390 F.3d 393

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Lee JACKSON, Defendant-Appellant.

No. 04-30205.

United States Court of Appeals, Fifth Circuit.

November 8, 2004.

COPYRIGHT MATERIAL OMITTED

Josette Louise Cassiere, Asst. U.S. Atty. (argued), Shreveport, LA, for Plaintiff-Appellee.

Rebecca L. Hudsmith, Fed. Pub. Def. (argued), Lafayette, LA, for Jackson.

Appeal from the United States District Court for the Western District of Louisiana.

Before SMITH and GARZA, Circuit Judges, and VANCE,^* District Judge.

JERRY E. SMITH, Circuit Judge:

Arrested after being found in a Greyhound bus station with cocaine strapped to his waist, Joseph Jackson was charged with possession of cocaine with intent to distribute. After his motion to suppress was denied, he entered a conditional guilty plea. He now appeals the denial of the motion to suppress. Concluding that Jackson's Fourth Amendment rights were not violated, we affirm.

I.

In the morning hours of May 23, 2003, a bus traveling from Dallas, Texas, pulled into the Greyhound bus station in Shreveport, Louisiana, for a stop scheduled to last approximately thirty minutes. Two plain clothes officers, Sergeant Kevin Dunn and Deputy James McLamb, with their weapons concealed, approached the driver as the bus doors opened and asked permission to search the vehicle for illegal narcotics. The driver agreed.

Dunn boarded the bus and announced over the intercom that he was a narcotics officer and that he would be bringing a drug-sniffing dog onto the bus to search for drugs. Standing near the driver's seat, and out of the way of the aisle, Dunn advised the passengers that they could either remain on the bus during the search or depart before the dog was brought aboard. The passengers were further advised that they could either leave their carry-on bags on the bus or take them as they departed. In the event any passengers were unable to exit the bus on their own, they were advised that if they did not choose to remain on the bus they could receive assistance in exiting. All the passengers chose to disembark.

As the passengers exited, Dunn noticed one passenger, Jackson, acting in a manner Dunn regarded as nervous: He was standing "exceptionally straight"; "his eyes were very wide open"; his posture was "unusually straight"; and he stepped quickly off the bus, avoiding eye contact and not responding when Dunn said "Good morning." Once the passengers had exited, McLamb boarded with the dog and searched the passenger compartment. The dog alerted on an empty seat and two bags stowed above the seat,¹ so McLamb suspected that someone was "body-carrying" drugs. The search now complete McLamb communicated to Dunn his suspicion that a passenger might be carrying drugs; McLamb placed the dog back in the police vehicle.

Dunn entered the station and noticed Jackson in the restaurant area.² Jackson looked nervous, was sweating heavily, and appeared to be having difficulty breathing, all the while sitting in what Dunn regarded as an unusually erect position. Dunn approached Jackson and asked whether he could speak with him; Jackson agreed but appeared so nervous that Dunn asked whether he would prefer to talk in a more private place. Jackson answered affirmatively, so Dunn led him to a nearby baggage claim area. There, Dunn asked Jackson whether he was carrying any weapons; Jackson answered that he was not.

Dunn then undertook a pat-down search during which he felt an unknown object around Jackson's waist. Jackson was then handcuffed by Dunn and McLamb. Dunn asked Jackson to identify the object. Jackson was at first unable to provide any explanation but on further questioning told the officers it was a "back brace." When McLamb raised Jackson's shirt to investigate, the officers observed powder cocaine in plastic bags taped to his waist. Jackson was formally arrested and advised of his rights.

Charged with possession of cocaine with intent to distribute, Jackson moved the district court to suppress the cocaine as evidence; adopting the recommendation of the magistrate judge, the district court denied the motion. Jackson entered a conditional plea of guilty, reserving his right to appeal the denial.

II.

We use a two-tiered standard of review for appeals from the denial of a motion to suppress: Factual findings are accepted unless clearly erroneous, and the district court's ultimate conclusion as to the constitutionality of law enforcement action is reviewed de novo. See United States v. Orozco, 191 F.3d 578, 581 (5th Cir.1999) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). We view all the evidence introduced at the suppression hearing in the light most favorable to the prevailing party, in this case the government. Id. (citing United States v. Ponce, 8 F.3d 989, 995 (5th Cir.1993)).

III.

Jackson's primary argument is that he was subjected to an unconstitutional seizure when two officers boarded the bus, with the driver's consent, after it pulled into the station for a scheduled layover and instructed bus passengers that they could remain on the bus during a canine search or disembark (with or without their carry-on luggage) until the search was completed.³ We disagree. Nothing about the officers' conduct impaired Jackson's right (which he exercised) to leave the bus and terminate the encounter with police.

A.

"[N]ot all personal intercourse between policemen and citizens involves `seizures' of persons." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). If every encounter between a citizen and a police officer constituted a seizure, it "would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Thus, "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Terry, 392 U.S. at 19 n. 16, 88 S.Ct. 1868.

Law enforcement officers do not violate the Fourth Amendment's proscription of unreasonable seizures "by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions," or "by putting questions to him if the person is willing to listen." Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion); Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984) (per curiam). Even without having an objective level of suspicion, officers may initiate contact with a person and ask for identification and request permission to search baggage, provided they do not induce cooperation by coercive means.⁴ Whether a person has been seized in these circumstances is a question of voluntariness: "If a reasonable person would feel free to terminate the encounter, then he or she has not been seized." Drayton, 536 U.S. at 201, 122 S.Ct. 2105.

The police practice at issue in this case is different from that in Bostick and Drayton — i.e., approaching bus passengers randomly to ask questions and to request their consent to searches. Here, the officers did not do that, nor did they ask consent to be searched. Instead, they merely informed the passengers that they would be conducting a canine search of the bus and that the passengers were free to disembark until the search was complete. For purposes of the Fourth Amendment, however, the relevant inquiry remains the same: whether the police conduct at issue, in light of all the circumstances, would have led a reasonable person to believe that he was barred from leaving the bus or otherwise terminating the encounter. See Drayton, 536 U.S. at 204, 122 S.Ct. 2105.

B.

The police did not seize Jackson — or the rest of the passengers to whom such a holding would theoretically be applicable — when they boarded the bus and gave passengers the choice of remaining there while they led a canine down the aisle or disembarking until the search was complete. The officers gave the passengers no reason to believe they were required to stay on the bus during the canine search. To the contrary, the officers explicitly informed passengers of the option to disembark the bus with or without their carry-on items, and left the aisle free for passengers to exit. In light of the fact that every passenger (Jackson included) exercised this option, it cannot be said that the offer of the option to leave, and thus terminate the police encounter, was understood as anything but genuine.

Moreover, as in Drayton,"[t]here was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice." Id. In sum, nothing the officers did or said "would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter." Drayton, 536 U.S. at 204, 122 S.Ct. 2105.

Indeed, Jackson never asserts that police conduct prevented him from leaving the bus and thus terminating the encounter with police. Instead, Jackson insists that this case is different because he had to disembark the bus to avoid an encounter at close proximity with a narcotics canine, and that this itself should constitute a seizure within the meaning of the Fourth Amendment.

But in advancing this argument, Jackson confuses a reasonable person's belief that he was not free to terminate the encounter with police (which is the touchstone for Fourth Amendment purposes) with his desire to leave the bus (which has little, if any, relevance for Fourth Amendment purposes). Whether Jackson desired to leave the bus, or whether he regarded it as inconvenient, says nothing about whether the police conduct was coercive. See Bostick, 501 U.S. at 435-37, 111 S.Ct. 2382. And the fact that disembarking was the only means...