United States v. Harris

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30990 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARECO D. HARRIS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana (01-CR-50008-ALL) -------------------- July 9, 2002 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Mareco D. Harris (“Harris”) appeals the

district court’s denial of his motion to suppress evidence that

supports his conviction for possession with the intent to

distribute 50 grams or more of cocaine base. Harris argues that

the evidence, which was discovered during a pat-down search outside

the bus on which he was a passenger, violated the Fourth Amendment.

He contends that when the officers ordered him to display his

ticket and step off the bus, he did not feel free to decline.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. We apply a two-tier standard in reviewing a district court’s

denial of a motion to suppress. United States v. Hunt, 253 F.3d

227, 229 (5th Cir. 2001). The district court’s fact findings are

reviewed for clear error and its ultimate conclusion as to the

constitutionality of the law enforcement action is reviewed de

novo. Id. at 229-30. The evidence is viewed in the light most

favorable to the prevailing party. Id. at 230.

Police officers violate the Fourth Amendment when they board

a bus and question passengers in such a way that a reasonable

person would not feel free to terminate the encounter or decline

the officer’s request. See Florida v. Bostick, 501 U.S. 429, 435

(1991). Just last month, in United States v. Drayton, No. 01-631,

2002 WL 1305729 (U.S. June 17, 2002), the Supreme Court noted that

the arrest of the defendant’s friend on the bus should have put the

defendant on notice of the consequences of continuing his

interaction with the police. “The arrest of one person does not

mean that everyone around him has been seized by the police.” Id.

at *8. Here, two officers identified themselves as law enforcement

agents and informed the passengers that dogs were going to check

the bus for illegal drugs. The passengers were also told that they

were free to get off the bus with their luggage, but that those who

did would be questioned.

Initially Harris remained on the bus, but was subsequently

asked to step off because he and a previously arrested, narcotics-

2 possessing passenger were both traveling from the same place, to

the same destination, on tickets issued consecutively and in the

same name (“Harris”). As Harris was exiting the bus, the officer

noticed a bulge on Harris’s inner thigh, which observation led to

the discovery of the narcotics in his possession. Under the

totality of the circumstances, Harris’s encounter with the officers

did not violate his Fourth Amendment rights.

Harris’s contention that the officers’ search of the bus

violated Delaware v. Prouse, 440 U.S. 648, 653-55 (1979), is

meritless. The evidence presented at the suppression hearing

established that the detention of the bus was random and that the

bus driver and bus station manager consented to the search of the

bus. See United States v. Hernandez-Zuniga, 215 F.3d 483, 487-89

(5th Cir.), cert denied, 531 U.S. 1038 (2000).

The district court did not err in denying Harris’s motion to

suppress.

AFFIRMED.

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