United States Court of Appeals Fifth Circuit F I L E D Revised April 16, 2004 March 31, 2004 UNITED STATES COURT OF APPEALS For the Fifth Circuit Charles R. Fulbruge III Clerk
No. 03-30576
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CURTIS L. WILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court For the Western District of Louisiana
Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:
Upon being indicted for possession of a firearm by a person
under indictment for a felony, in contravention of 18 U.S.C.
§ 922(n), Appellant Curtis L. Williams entered a conditional plea
of guilty, reserving his right to appeal the magistrate judge’s
denial of his motion to suppress the firearm and statements made at
the time of his arrest. The district court subsequently adopted
the magistrate’s findings and recommendations and ordered that
Williams’s motion to suppress be denied. Williams timely appeals. BACKGROUND AND PROCEDURAL HISTORY
Curtis Williams was indicted by a grand jury in Williamson
County, Texas, in July 2000 for aggravated assault causing serious
bodily injury. The offense made the subject of the indictment is
punishable by more than one year in jail under state law, thus
satisfying the definition of a felony for purposes of 18 U.S.C.
§ 922(n). See Tex. Pen. Code Ann. § 22.02 (Vernon 1994) (defining
“aggravated assault” as a felony); Id. §§ 12.32-.34 (establishing
that any class of felony is punishable by a term of imprisonment of
not less than two years).
While under indictment, Williams traveled to Louisiana from
Texas on a Greyhound bus. The bus on which Williams was traveling
made a scheduled stop at the Shreveport Greyhound Bus terminal in
the early morning hours of September 12, 2001. Caddo Parrish
Sheriff’s deputies Carl Townley and Chris Bain were working with
their drug detection dogs at the terminal. The deputies were not
in uniform nor did they display their weapons. Deputy Bain and his
dog stood next to the bus as the passengers disembarked. Deputy
Bain then entered the bus, allowing his dog to sniff for the
presence of drugs. Meanwhile, Deputy Townley was checking the
luggage compartment beneath the passenger cabin with his dog, Raja.
Deputy Townley had noted Williams’s avoidance of the dog as
Williams departed from the bus as well as Williams’s interest in
and curiosity about the dog’s investigation of the luggage within
2 the bus. After observing Williams’s mannerisms, Deputy Townley
commented to a sergeant on the scene that it might be useful to
“talk to Mr. Williams.” After Deputy Bain completed his check of
the bus’s passenger cabin, Deputy Townley and Raja entered the bus.
Raja alerted to a black backpack which was either in a seat or in
the overhead bin of the bus.
Upon exiting the bus, Deputy Townley observed Williams still
standing near the bus watching the activity occurring in the
passenger cabin. Deputy Burrows, another deputy present at the
terminal, approached Williams and asked him if he would mind
talking with him. Williams followed Deputy Burrows, Deputy
Townley, and Deputy Bain to the back of the bus station into the
baggage handling area. The deputies then identified themselves as
police officers and again asked Williams if he would talk with
them. Williams stated that he had no problem doing so. When asked
by the deputies about the nature of his travel plans, Williams
responded by stating that he was on leave from the military
traveling from Fort Hood, Texas, to Alabama. When asked for his
military identification, Williams claimed he had lost it. Deputy
Townley testified at the suppression hearing that this aroused his
suspicions because this was the day after the terrorist attacks of
September 11, 2001, and therefore he felt it was highly unlikely
that any soldiers were allowed on leave. Additionally, Deputy
Townley testified that in his experience soldiers always carry
their military identification.
3 Deputy Townley then asked Williams if he had any illegal
narcotics or contraband on his person or in his luggage. Williams
admitted to the deputies that he had smoked marijuana before
boarding the bus in Texas, but stated that he had none in his
carry-on bag which was located on the bus. Williams agreed to
retrieve his bag from the bus and was accompanied by Deputy
Burrows. Upon their return, Deputy Townley noted that Williams’s
backpack was the same black backpack to which Raja had alerted
earlier.
Williams then admitted to the deputies that he had lied about
being in the military. At this point, for safety reasons, the
deputies did not allow Williams to have the backpack. Williams
allegedly became defensive and insisted that there was no marijuana
in the backpack. Deputy Townley testified that he surmised, based
on Williams’s reaction, that perhaps there was something illegal in
the backpack other than drugs. The deputies then asked Williams
for consent to search the backpack, informing him that the dog had
alerted to it. The deputies told Williams that they had probable
cause to open the bag because of the dog’s alert. Williams finally
said, “Go ahead, look in the bag.”
The deputies searched the bag and discovered a Glock 9
millimeter firearm with the sight removed.1 Williams was
1 Deputy Townley testified that the sight is often removed to allow fast withdrawal of the gun when it is hidden in a pants waistband.
4 subsequently arrested for illegally carrying a concealed weapon in
violation of Louisiana state law. An ATF agent was summoned and
soon discovered that Williams was under indictment in Texas for a
felony offense. Thereafter, the government indicted Williams for
possession of a firearm in violation of 18 U.S.C. § 922(n).
Upon being indicted for violating section 922(n), Williams
filed a motion to suppress the firearm and statements made at the
time of his arrest. The magistrate judge conducted a hearing on
the motion. Before the magistrate issued his report and
recommendations, Williams entered a conditional plea of guilty,
reserving his right to appeal the magistrate judge’s ruling on the
motion to suppress. The guilty plea was entered on December 27,
2001, but Williams’s counsel did not advise him that it was a
conditional plea reserving the right to appeal an adverse ruling on
the suppression motion. Because of the plea, no ruling was issued
by the magistrate judge, yet an appeal was taken. The case was
remanded by this court for a ruling on the motion. The magistrate
judge subsequently denied the suppression motion. The district
judge concurred with the magistrate judge’s findings by order filed
on May 16, 2003. Williams filed a timely notice of appeal.
STANDARD OF REVIEW
This court reviews a denial of a motion to suppress under the
two-tiered standard of review established in Ornelas v. United
States, 517 U.S. 690, 694-97 (1996). We review the district
5 court’s findings of fact supporting the denial of a motion to
suppress under a clearly erroneous standard and review the district
court’s conclusions of law de novo. United States v. Singh,
261 F.3d 530, 535 (5th Cir. 2001). The legal interpretation of a
sentencing guideline is reviewed de novo. United States v.
Singleton, 946 F.2d 23, 24 (5th Cir. 1991).
DISCUSSION
I. Whether Williams’s Fourth Amendment right to be free from an unreasonable search and seizure was violated.
Williams contends that although he may have initially
cooperated with the officers, by the time he was escorted to and
from the baggage handling area, separated from the other
passengers, and repeatedly asked for consent to search his
backpack, the questioning had become a non-consensual detention.
In addition, Williams argues that he did not consent to the search
of the backpack. Accordingly, he maintains, the firearm found
during the warrantless search should have been suppressed.
The government agrees that the initial encounter between
Williams and the police officers was consensual. The government
argues that the encounter remained consensual until Williams was
confronted with the fact that a dog had alerted to his backpack and
the officers asked if he was carrying anything illegal. It was at
this time that the government contends a Terry stop, as established
in Terry v. Ohio, 392 U.S. 1 (1968), was initiated. The government
argues that the Terry stop was for a limited period of time — a few
6 minutes — and ended in Williams’s consent to search his backpack,
which ultimately resulted in the discovery of the illegally
possessed firearm. The government insists that the officers did
not engage in any misconduct; however, even if the officers had or
if Williams’s consent was involuntary, the firearm would inevitably
have been discovered because the dog had alerted to the backpack,
thus providing the officers with probable cause to obtain a search
warrant.
There are three recognized types of encounters between law
enforcement officers and citizens, including: 1) a consensual
encounter during which an individual voluntarily agrees to
communicate with the police; 2) a limited investigatory stop based
upon less than probable cause; and 3) an arrest which constitutes
a seizure under the Fourth Amendment. United States v. Cooper,
43 F.3d 140, 145-46 (5th Cir. 1995). We shall take each of these
categories and apply them to the facts of this case to determine
whether Williams was deprived of his Fourth Amendment right to be
free from an unreasonable search and seizure.
A. Consensual Encounter
Under the consensual encounter arm of Fourth Amendment
jurisprudence, the police can initiate contact with a person
without having an objective level of suspicion, during which time
the police may ask questions of the person, ask for identification,
and request permission to search baggage that the individual may
7 have in his possession. United States v. Drayton, 536 U.S. 194,
200-01 (2002). The Supreme Court has recognized that the Fourth
Amendment “permits police officers to approach bus passengers at
random to ask questions and to request their consent to searches,
provided a reasonable person would understand that he or she is
free to refuse.” Id. at 197. In deciding if an encounter between
the police and a private citizen is consensual, the district court
must determine if a reasonable person in the circumstances
described would feel free to disregard the officers and proceed
with his or her own business. Florida v. Bostick, 501 U.S. 429, 434
(1991).
In this case, Williams’s initial agreement to talk with Deputy
Burrows was a permitted consensual encounter that does not
implicate the Fourth Amendment. Williams argues that the
consensual nature of his encounter with the officers ended when he
was requested by the officers to speak with them in the baggage
handling area of the bus station. In making this argument,
Williams tries to distinguish the facts of this case from those in
Drayton. In Drayton, officers were engaged in a routine drug and
weapons interdiction on board a Greyhound bus during a scheduled
stop. 536 U.S. at 197-99. The Supreme Court concluded that bus
passengers were not seized when officers boarded the bus and began
questioning passengers. Id. at 200. The Court based its conclusion
on an analysis of the “totality of the circumstances,” noting
particularly that there “was nothing coercive [or] confrontational
8 about the encounter.” Id. at 204 (internal quotations omitted)
(alteration in original). The Court further observed that there
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.
Williams’s attempt to distinguish Drayton from the present
case is unpersuasive. The government argues convincingly that the
purpose of moving the location for questioning Williams into the
baggage handling area was to get away from the loud noise made by
the buses at the terminal. Based on testimony elicited at the
suppression hearing, it was revealed that the extreme noise near
the buses made it difficult to converse and would have made it
necessary to yell, thus introducing an undesirable intensity to any
conversation. Moreover, the layout of the bus station,
particularly the location of the baggage handling area where the
questioning was conducted, reveals that Williams was not subjected
to a restrictive environment. Specifically, the baggage handling
area opens directly out to both the open-air area of the terminal
where the buses are parked and into the terminal waiting area. In
addition, there were several baggage handlers in the room with
Williams and the officers at the time of questioning. As such,
Williams’s voluntary entry into the baggage handling area for
purposes of answering questions does not amount to a seizure, nor
does it convert the consensual encounter into a Terry stop.
9 Once inside the baggage handling area, the officers identified
themselves, asked Williams for identification, and inquired as to
his travel plans. The officers did not request to search
Williams’s luggage, but asked if he was carrying any drugs on his
person or in his luggage. There is nothing coercive about such
questions. Based on testimony at the suppression hearing, the
officers did not demand answers to their questions, leaving
Williams free to decide whether to answer. The officers were not
in uniform, displayed no weapons, and by all accounts maintained a
professional decorum.
Once Williams answered the officers’ questions, his responses
apparently aroused suspicion in the officers. As noted previously,
Williams claimed that he was a soldier on leave the day after the
September 11, 2001, terrorist attacks, but said he had lost his
military identification. When asked if he would mind retrieving
his luggage from the bus, Williams agreed and accompanied one of
the deputies onto the bus to retrieve it. Upon returning from the
bus with his backpack, Williams acknowledged using marijuana
immediately prior to boarding the bus and admitted that he had lied
about being in the military. Adding to the heightened suspicions
was the fact that Williams’s backpack was the same backpack to
which the dog had alerted earlier.
10 B. Terry Stop
Once the officers were presented with the circumstances as
described above, the government argues that the officers had a
proper basis to formulate reasonable suspicion, and the nature of
their inquiry began to take on the character of a Terry stop. In
evaluating the reasonableness of an investigatory Terry stop, this
court must consider: 1) whether the officer’s action was justified
at its inception; and 2) whether it was reasonably related in scope
to the circumstances that justified the interference in the first
place. Terry, 392 U.S. at 19-20 (quotations omitted). If
authorities have reasonable articulable suspicion that luggage
contains contraband or evidence of a crime, a limited intrusion or
seizure to pursue further investigation furthers a substantial
governmental interest. United States v. Place, 462 U.S. 696, 703
(1983). The Supreme Court has observed that the permitted
detention of luggage in such circumstances must be “properly
limited in scope.” Id. at 706. Submission of luggage to a canine
sniff for narcotics does not constitute a Fourth Amendment search.
Id. at 707 (“We are aware of no other investigative procedure that
is so limited both in the manner in which the information is
obtained and in the content of the information revealed by the
procedure.”). Further, a dog’s alert to the presence of narcotics
is sufficient to provide probable cause to search. United States v.
Williams, 69 F.3d 27, 28 (5th Cir. 1995).
11 After learning of Williams’s untruthfulness regarding his
military status and recognizing that the backpack alerted to by the
dog was Williams’s, the officers continued their detention.
Specifically, they asked Williams why he had lied about being in
the military and inquired whether he had anything illegal in his
backpack. Williams vehemently denied having marijuana in his
backpack. As stated previously, Deputy Townley testified that
Williams’s insistence that there was no marijuana in his backpack
led Townley to believe that there was something else illegal in the
bag. Thereafter, the officers truthfully informed Williams that
the dog had alerted to his backpack, and therefore the officers had
probable cause to search his backpack, with or without his
consent.2 Williams then told the officers they could “go ahead and
open it.” The officers neither made a show of force nor did they
threaten or intimidate Williams.
The dog’s alert provided the officers with probable cause to
believe that the backpack contained narcotics, and they could have
retained custody of it until a search warrant was obtained. The
arrest on state gun charges occurred immediately after the firearm
was discovered in Williams’s backpack. The entire encounter
2 We note that at no time did the deputies reveal to Williams that they would need to obtain a search warrant to search his backpack if he refused to give his consent. While this omission on the part of the deputies is not determinative of the voluntariness of Williams’s subsequent consent, had the deputies so informed him, it certainly would have provided stronger support for the government’s position that Williams’s consent was in fact voluntary.
12 occurred between the arrival of the bus and its subsequent
departure. At the time of Williams’s arrest, the bus on which he
had been a passenger had not yet left the terminal. Based on
testimony elicited at the suppression hearing, the buses usually
remain at the terminal for approximately twenty minutes and
Williams’s detention was perhaps no more than five or ten minutes
for the Terry stop.
C. Exception to the Exclusionary Rule
The government contends that even if this court were to
conclude that the encounter at issue was unreasonable or exceeded
the constitutional parameters of either a consensual encounter or
a Terry stop, Williams’s consent to the search would rectify any
Fourth Amendment violation. The government argues that Williams
had been cooperative with the officers up to the point where they
asked for consent to search his bag, and the officers conducted the
search in the good faith belief that Williams had consented in the
same spirit of cooperation which he had maintained to that point in
the encounter. To support this contention, the government cites
Williams’s initial refusal to consent as an indication that he felt
free to object to the officers and to refuse consent.
Conversely, Williams argues that his alleged statement “go
ahead then” was not one of consent, but rather an acknowledgment of
Deputy Townley’s statement that the officers could do what they
wanted without regard to Williams’s wishes. Williams cites Florida
13 v. Bostick, 501 U.S. 429, 434 (1991), for his assertion that he was
coerced into allowing the officers to search his backpack and was
not at liberty to ignore the police presence and go about his
business.
The critical flaw with Williams’s reliance on Bostick lies in
the fact that Bostick governs circumstances involving consensual
encounters between law enforcement and citizens. 501 U.S. at 434.
At the point in which the officers asked Williams for his consent
to search his backpack, it is clear that the officers had probable
cause to conduct such a search, implicating an altogether different
standard under the Fourth Amendment. Williams’s consent, although
given after he was made aware that the officers had probable cause
to seek a search warrant, was nevertheless voluntary.
In addition, this court has established a six-factor inquiry
for determining whether consent was voluntarily given, such factors
including: “1) the voluntariness of 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; and 6) the defendant’s
belief that no incriminating evidence will be found.” United States
v. Hernandez, 279 F.3d 302, 307 (5th Cir. 2002) (citing United
States v. Jones, 234 F.3d 234, 242 (5th Cir. 2000)). No single
factor in this analysis is dispositive. Id.
Taking these factors in turn, we first observe that Williams’s
14 custodial status was voluntary. Williams was not in custody when
he initially agreed to speak with the officers inside the baggage
handling area or when he gave the officers consent to search his
backpack. Second, as previously discussed, there is no evidence
that the officers’ conduct was coercive. Testimony at the
suppression hearing revealed that the officers, who were not in
uniform nor displayed their weapons, did not demand answers to any
of their questions, leaving Williams free to decide whether to
answer. Third, the degree of Williams’s cooperation with the
officers was substantial. In addition to agreeing to accompany the
officers to the baggage handling area, Williams subsequently agreed
to escort an officer back onto the bus to retrieve Williams’s
backpack. As further evidence of his cooperative behavior,
Williams also answered all questions posed by the officers.
Nowhere in the record is it reflected that Williams was
uncooperative with the officers at any time.
Fourth, there is evidence demonstrating that Williams was made
aware of his right to refuse consent. Upon learning that the
backpack to which the dog had alerted belonged to Williams, the
officers informed him that he did not have to provide consent
because the officers had probable cause to obtain a search warrant
for the backpack. Fifth, the presentence investigation report
revealed that Williams received his GED; however, there is nothing
in the record that indicates Williams’s lack of education or
intelligence made his consent involuntary. Finally, it would
15 appear that Williams believed that officers would find
incriminating evidence inside his backpack, i.e., the Glock 9
millimeter firearm. However, this factor alone is not
determinative in our analysis. Hernandez, 279 F.3d at 307.
Accordingly, based on an application of the facts in the instant
case to the six-factor inquiry discussed above, we conclude that
Williams’s consent to search his backpack was voluntarily given.
II. Whether United States Sentencing Guideline § 2K2.1(b)(4) violates due process because it provides a sentencing enhancement for a firearm violation if the firearm is stolen, regardless of the defendant’s knowledge of its stolen character.
Williams argues that the two-level sentence enhancement he
received under United States Sentencing Guideline § 2K2.1(b)(4)
should require some level of knowledge regarding the stolen
character of the firearm. Specifically, Williams contends that
without a knowledge requirement, a person may be subject to
additional prison time based solely on a reason or factor the
person had no knowledge or reason to know existed, and thus
constitutes a due process violation.
Section 2K2.1 establishes base offense levels for a wide
variety of federal firearm offenses, and also provides for
enhancements to those base levels under certain circumstances. One
such enhancement requires an increase of the base offense by two
levels if the firearm was stolen. U.S. SENTENCING GUIDELINES MANUAL
§ 2K2.1(b)(4) (2000). The application notes to this guideline
16 specifically state that “[t]he enhancement under subsection (b)(4)
for a stolen firearm . . . applies whether or not the defendant
knew or had reason to believe that the firearm was stolen.” Id.
§ 2K2.1, cmt. n.19.
Moreover, in United States v. Singleton, 946 F.2d 23, 26-27
(5th Cir. 1991), the Fifth Circuit confirmed that this sentencing
enhancement may be applied without a showing that the defendant had
knowledge that the firearm was stolen. The Singleton court
determined that “the upward adjustment for possession of a stolen
firearm does not stand alone as an independent crime but is part of
a sentencing court’s quest to formulate a proper sentence.” Id. at
26. Additionally, the court concluded that because the upward
adjustment occurs during sentencing, when the district court’s
discretionary authority is especially broad, this adjustment does
not offend due process. Id. at 27. Consequently, Williams’s
constitutional challenge to his sentencing enhancement pursuant to
§ 2K2.1(b)(4) fails.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing and arguments, and for the reasons set
forth above, we AFFIRM the district court’s denial of Williams’s
motion to suppress the firearm found in his possession; and we
conclude that Williams’s enhanced sentence for possessing a stolen
firearm in contravention of United States Sentencing Guideline
17 § 2K2.1(b)(4) is not unconstitutional, and thus should likewise be
AFFIRMED.
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