United States v. Freeman

Opinion

United States Court of Appeals Fifth Circuit F I L E D

In the March 27, 2007 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk

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m 05-11231

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UNITED STATES OF AMERICA

Plaintiff-Appellee,

VERSUS

MACULLON FREEMAN,

ALSO KNOWN AS TED LEWIS BROWN,

Defendant-Appellant.

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m 05-11254

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UNITED STATES OF AMERICA,

Plaintiff-Appellant.

VERSUS

KENNETH ANTHONY CHAN,

Defendant-Appellant.

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Appeals from the United States District Court for the Northern District of Texas

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Before HIGGINBOTHAM, SMITH, and own. He consented to a search of the bag, DEMOSS, Circuit Judges. which turned up nothing of significance. The officer asked Freeman whether he had any oth-

JERRY E. SMITH, Circuit Judge: er baggage; Freeman responded that he did not.

Macullon Freeman and Kenneth Chan were convicted of possession with intent to distrib- Officer Morton then spoke with Chan, ute cocaine. They appeal the denial of a mo- whom he had seen talking to Freeman. Mortion to suppress evidence found in a backpack ton asked for Chan’s train ticket; Chan said it during a search of their shared sleeping car. was in the sleeping car and he would not mind Because the consent was voluntary and a rea- getting it. Morton followed Chan into the sonable officer would have believed that Chan train, waiting outside the room while Chan rehad authority to consent and that his consent trieved the ticket. Morton asked Chan whethcovered the backpack, we affirm. er the bags in the room were his; Chan said they were. Morton asked Chan whether he I. would consent to a search; Chan consented Four law enforcement agents approached and confirmed that he had no bags other than the defendants on a train platform in Fort the ones inside the room. Worth because of defendants’ suspicious itinerary .1 Officer Gregg identified himself as an Morton entered the room to search; he later officer and asked Freeman whether he had a testified that the only things immediately visibag in the storage area on the lower end of the ble were a small leather binder and a shaving train. Freeman identified himself as “Ted kit. Behind a chair in the room, in a large Brown” and claimed an untagged bag as his pocket, Morton found a black backpack.

Inside he found two large blocks of cocaine, along with airline tickets and motel receipts in 1 the name of Ted Brown. At no point did Mor-

The two defendants had made a last-minute, ton ask Chan whether the backpack was his or one-way reservation of a sleeping car from San for consent to look in the backpack.

Antonio to Washington, D.C., on Chan’s credit card. Because reasonable suspicion is not necessary for officers to approach individuals in public At the suppression hearing the district court areas, we express no opinion on whether the offi- found that Chan had given verbal consent to cers had reasonable suspicion to instigate a Terry search the room and that the officer would stop. See, e.g., Terry v. Ohio, 392 U.S. 1, 19 n.16 have reasonably believed that this included (1968); Florida v. Royer, 460 U.S. 491, 497-98 consent to search bags in the room. The (1983) (plurality).

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court initially granted the suppression motion, consent, the next issue is whether it was volhowever , concluding that “I’ve been provided untary.4 Voluntariness is to be determined no authority by the government that consent to based on the totality of the circumstances, with search the room carried with it consent to the burden of proof on the government.5 search the backpack.” The next day, the court reversed its ruling, concluding that the proper If the government demonstrates voluntary legal test was one of “objective reasonable- consent, two issues remain: whether the search ness” and finding that it was objectively rea- was within the scope of the consent;6 and sonable for Morton to believe Chan’s consent whether the consenting individual had authorincluded consent to search the backpack, be- ity to consent.7 Unlike the first two issues, cause it was in plain sight. scope and authority are not determined based on a totality-of-the-circumstances standard, II. but by a reasonable-officer standard.8 The When courts review a search justified by consent, there are four distinct issues. United States v. Dilley, 2007 WL 624207, at *1 (5th 4 See Schneckloth v. Bustamonte, 412 U.S. 218, Cir. Mar. 2, 2007). First, as a threshold mat- 222 (analyzing voluntariness under a totality-ofter , the government must demonstrate that the the-circumstances test). defendant did consent.2 If he consents, proba-

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ble cause analysis is inapplicable, and the Id. search is measured against the general Fourth

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Amendment requirement of reasonableness.3 See United States v. Ibarra, 965 F.2d 1354, Existence of consent is determined based on 1356 n.2 (5th Cir. 1992) (en banc) (per curiam) the totality of the circumstances. See, e.g., (affirming by equally-divided court) (“Government has the burden of proving the search was conduct-

Price, 54 F.3d at 345.

ed within the scope of the consent received.”).

Once the government has demonstrated 7 See United States v. Matlock, 415 U.S. 164, 169-71 (1974) (considering whether police can rely on consent of third party); Rodriguez, 497 U.S. at 2 See United States v. Price, 54 F.3d 342, 346 183-89 (same).

(7th Cir. 1995) (examining whether a defendant

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who responded “Sure” meant “Sure you can See Florida v. Jimeno, 500 U.S. 248, 251 search” or “Sure, I mind if you search”); United (1991) (“The standard for measuring the scope of States v. Barrington, 210 F. Supp. 2d 773, 778 a suspect’s consent under the Fourth Amendment (E.D. Va. 2002) (same). is that of “objective” reasonablenessSSwhat would the typical reasonable person have understood by 3 See Illinois v. Rodriguez, 497 U.S. 177, 183 the exchange between the officer and the sus-

(1990) (“What [the defendant] is assured by the pect?”); Rodriguez, 497 U.S. at 186-88 (“Whether Fourth Amendment itself, however, is not that no the basis for such authority [to consent] exists is government search of his house will occur unless the sort of recurring factual question to which law he consents; but that no such search will occur that enforcement officials must be expected to apply is ‘unreasonable.’”). Even where police have ob- their judgment, and all the Fourth Amendment retained a search warrant, if the suspect consents quires is that they answer it reasonably. . . . they need not execute the warrant. United States Would the facts available to the officer at the mov . Lee, 356 F.3d 831 (8th Cir. 2003). (continued...)

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burden of proof remains on the government. United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993) (citations omitted).

Because all four issues are factual, we review the district court’s determinations for The district court made a finding of volunclear error.9 We review its ultimate Fourth tariness after an oral hearing, so our review Amendment conclusions de novo. United under the clearly erroneous standard is partic- States v. Gonzalez, 328 F.3d 755, 758 (5th ularly deferential. Id. Freeman and Chan have Cir. 2003). not made the necessary showing.

III. At the time of Chan’s consent, he was not The defendants do not dispute that Chan in custody. Although the officer had identified consented to a search of the sleeping car. himself as a policeman, there was no indication They do allege that his consent was not volun- that the defendants were not free to leave; this tary because Chan was not informed that he suggests the interaction was an encounter.10 could refuse consent, and the agents were The defendants proffer no substantial evidence armed. of coercion.

This circuit uses a six-factor test to deter- Chan was cooperative, which suggests volmine voluntariness: untariness, and although he was not informed that he could deny consent, this fact is “not to (1) the voluntariness of the defendant’s be given controlling significance.” United custodial status; (2) the presence of coer- States v. Watson, 423 U.S. 411, 425 (1976). cive police procedures; (3) the extent and level of the defendant’s cooperation with The defendants presented no evidence that the police; (4) the defendant’s awareness of Chan was unaware of his right to deny conhis right to refuse to consent; (5) the defen- sent, nor any evidence that he was mentally dant’s education and intelligence; and deficient or unable to exercise his free will in (6) the defendant’s belief that no incrimin- consenting. Finally, although incriminating evating evidence will be found. All six factors idence was found, Chan argued at trial that he are relevant, but no single one is dispositive was unaware of the cocaine, an argument that or controlling.

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See Royer, 460 U.S. at 497-98 (“[L]aw en-

8 forcement officers do not violate the Fourth (...continued)

ment warrant a man of reasonable caution in the Amendment by merely approaching an individual belief that the consenting party had authority over on the street or in another public place, by asking the premises?”). him if he is willing to answer some questions, by putting questions to him if the person is willing to 9 Price, 54 F.3d at 345. See also United States listen, or by offering in evidence in a criminal prov . Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993) secution his voluntary answers to such questions. (“Where the judge bases a finding of consent on the Nor would the fact that the officer identifies himoral testimony at a suppression hearing, the clearly self as a police officer, without more, convert the erroneous standard is particularly strong since the encounter into a seizure requiring some level of objudge had the opportunity to observe the demeanor jective justification.”) (plurality) (citations of the witnesses.”). omitted).

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suggests the voluntariness of consent. consent.”11

IV. It is undisputed that Chan had watched the Defendants argue that the district court police examine the contents of Freeman’s bag committed clear error in holding, after revers- and that the officer asked Chan whether the ing its oral pronouncement, that the backpack bags in the room were his. A reasonable offiwas within the scope of Chan’s consent. They cer could certainly assume that consent to aver that Chan’s consent to search the room search the room included consent to search did not authorize the search of a closed back- any unlocked bags in the room. A reasonable pack inside the room. officer could also assume that Chan, having traveled in the railroad car from San Antonio This argument is foreclosed by Florida v. to Fort Worth, would be aware of the contents Jimeno, 500 U.S. 248 (1991). There, a police of the car. Because Chan did not attempt to officer initiated a valid vehicle stop, then asked limit his consent, the officer was not constituthe driver for permission to search the car. Af- tionally unreasonable by construing Chan’s ter receiving consent, during the search the of- consent to include the backpack. ficer found a closed bag on the floor and opened it to reveal a kilogram of cocaine. V.

The defendants argue that Chan lacked au-

In analyzing whether consent to search the thority to consent to a search of Freeman’s car extended to closed containers in the car, backpack. They point to United States v. Jarthe Court recognized that “the touchstone of as, 86 F.3d 383 (5th Cir. 1996), as establishing the Fourteenth Amendment is reasonableness.” that the government must demonstrate that the Id. at 250. Noting that the officer had in- officers “reasonably (though erroneously) beformed the defendant that he suspected drugs lieved that the person who has consented to were in the car and that the defendant had put their search had authority to do so.” Id. at 389 no “explicit limitation” on the scope of the (citing Rodriguez, 497 U.S. at 186 (internal search, the Court concluded that “if his con- quotations omitted)). Although the defendants sent would reasonably be understood to ex- cite the correct standard for apparent authortend to a particular container, the Fourth ity, the government made the necessary show- Amendment provides no grounds for requiring ing in this case. a more explicit authorization.” Id. at 252.

In Rodriguez, police searched an apartment The Court specifically rejected the notion after obtaining consent from the defendant’s that an officer should be required to request girlfriend, who had no property interest in the permission before searching each individual apartment. The Court stated that the test was container. Id. Interpreting Jimeno, we have whether “the facts available to the officer at noted that “the defendant, as the individual the moment [would] warrant a man of reasonknowing the contents of the [searched area], able caution in the belief that the consenting has the responsibility to limit the scope of the

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United States v. McSween, 53 F.3d 684, 688 (5th Cir. 1995) (citing United States v. Rich, 992 F.2d 502, 507 (5th Cir. 1993)).

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party had authority over the premises?” Id. at when it concluded as much.12 188 (ellipses and citations omitted). The Court remanded so that the lower court could AFFIRMED. determine whether the officers reasonably believed that the girlfriend had authority to consent.

In Jaras, a defendant moved to suppress evidence found in two suitcases in the trunk of the car he was riding in. Although the driver gave consent to search the car, he specifically informed the police that the suitcases belonged to the defendant, a passenger. Nevertheless, the police opened the suitcases without obtaining consent from the defendant. We noted that there could be no claim that the driver possessed actual authority over the suitcases, because there was no showing of mutual use or joint access and control. Jaras, 86 F.3d at 389. Similarly, there could be no claim of apparent authority, because the consenting party informed the officers that the suitcases did not belong to him. Id. at 389-90. No reasonable officer could have believed that the driver had authority to consent, so the search could not be justified based on the driver’s consent.

The present facts are distinguishable from those in Jaras. Morton could not have known 12 Alternatively, Chan may have had actual authat the backpack belonged to Freeman until thority over the backpack, based on his co-occuafter he had already opened it. He could also pancy of the sleeping car. Where two individuals reasonably rely on Chan’s statement that all are co-tenants or co-occupants, they assume the the bags in the room were his. Chan had just risk that the co-user may consent to a search. exited the sleeping car before making the United States v. Richard, 994 F.2d 244, 250 (5th statement and had traveled in the car from San Cir. 1993). “Unless the complaining co-tenant has Antonio to Fort Worth; it was reasonable to somehow limited the other’s access to a piece of property, the consenting co-tenant’s authority exbelieve he would have been aware of any bags tends to all items on the premises.” Id. In Ricontained therein. Morton had also heard chard, this court found that the defendant’s girl- Freeman state to the other officers that he had friend had authority to consent to a search of their no other luggage. A reasonable officer could hotel room, in which a number of suitcases belongbelieve that the bag belonged to Chan and that ing to the defendant were seized. Similarly, Chan he had authority to consent to its search, and had access to the entire sleeping car and had authe district court was not clearly erroneous thority to consent to a search of the car, including any items on the premises, such as the backpack.