United States v. Freeman

¶4JERRY E. SMITH, Circuit Judge:

¶5Macullon Freeman and Kenneth Chan were convicted of possession with intent to distribute cocaine. They appeal the denial of a motion to suppress evidence found in a backpack during a search of their shared sleeping car. Because the consent was voluntary and a reasonable officer would have believed that Chan had authority to consent and that his consent covered the backpack, we affirm.

¶6I.

¶7Four law enforcement agents approached the defendants on a train plat*831form in Fort Worth because of defendants’ suspicious itinerary.1 Officer Gregg identified himself as an officer and asked Freeman whether he had a bag in the storage area on the lower end of the train. Freeman identified himself as “Ted Brown” and claimed an untagged bag as his own. He consented to a search of the bag, which turned up nothing of significance. The officer asked Freeman whether he had any other baggage; Freeman responded that he did not.

¶8Officer Morton then spoke with Chan, whom he had seen talking to Freeman. Morton asked for Chan’s train ticket; Chan said it was in the sleeping car and he would not mind getting it. Morton followed Chan into the train, waiting outside the room while Chan retrieved the ticket. Morton asked Chan whether the bags in the room were his; Chan said they were. Morton asked Chan whether he would consent to a search; Chan consented and confirmed that he had no bags other than the ones inside the room.

¶9Morton entered the room to search; he later testified that the only things immediately visible were a small leather binder and a shaving kit. Behind a chair in the room, in a large pocket, Morton found a black backpack. Inside he found two large blocks of cocaine, along with airline tickets and motel receipts in the name of Ted Brown. At no point did Morton ask Chan whether the backpack was his or for consent to look in the backpack.

¶10At the suppression hearing the district court found that Chan had given verbal consent to search the room and that the officer would have reasonably believed that this included consent to search bags in the room. The court initially granted the suppression motion, however, concluding that “I’ve been provided no authority by the government that consent to search the room carried with it consent to search the backpack.” The next day, the court reversed its ruling, concluding that the proper legal test was one of “objective reasonableness” and finding that it was objectively reasonable for Morton to believe Chan’s consent included consent to search the backpack, because it was in plain sight.

¶11II.

¶12When courts review a search justified by consent, there are four distinct issues. United States v. Dilley, 2007 WL 624207, at *1 (5th Cir. Mar.2, 2007). First, as a threshold matter, the government must demonstrate that the defendant did consent.2 If he consents, probable cause analysis is inapplicable, and the search is measured against the general Fourth Amendment requirement of reasonableness.3 Existence of consent is determined *832based on the totality of the circumstances. See, e.g., Price, 54 F.3d at 345.

¶13Once the government has demonstrated consent, the next issue is whether it was voluntary.4 Voluntariness is to be determined based on the totality of the circumstances, with the burden of proof on the government.5

¶14 If the government demonstrates voluntary consent, two issues remain: whether the search was within the scope of the consent;6 and whether the consenting individual had authority to consent.7 Unlike the first two issues, scope and authority are not determined based on a totality-of-the-circumstances standard, but by a reasonable-officer standard.8 The burden of proof remains on the government.

¶15Because all four issues are factual, we review the district court’s determinations for clear error.9 We review its ultimate Fourth Amendment conclusions de novo. United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir.2003).

¶16III.

¶17The defendants do not dispute that Chan consented to a search of the sleeping car. They do allege that his consent was not voluntary because Chan was not informed that he could refuse consent, and the agents were armed.

¶18This circuit uses a six-factor test to determine voluntariness:

(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 to consent; (5) the defendant’s education and intelligence; and (6) the defendant’s belief that no incriminating evidence will be found. All six factors are relevant, but no single one is dispositive or controlling.

¶19United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir.1993) (citations omitted).

¶20*833The district court made a finding of voluntariness after an oral hearing, so our review under the clearly erroneous standard is particularly deferential. Id.Freeman and Chan have not made the necessary showing.

¶21At the time of Chan’s consent, he was not in custody. Although the officer had identified himself as a policeman, there was no indication that the defendants were not free to leave; this suggests the interaction was an encounter.10 The defendants proffer no substantial evidence of coercion.

¶22Chan was cooperative, which suggests voluntariness, and although he was not informed that he could deny consent, this fact is “not to be given controlling significance.” United States v. Watson, 423 U.S. 411, 425, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).

¶23The defendants presented no evidence that Chan was unaware of his right to deny consent, nor any evidence that he was mentally deficient or unable to exercise his free will in consenting. Finally, although incriminating evidence was found, Chan argued at trial that he was unaware of the cocaine, an argument that suggests the voluntariness of consent.

¶24IV.

¶25Defendants argue that the district court committed clear error in holding, after reversing its oral pronouncement, that the backpack was within the scope of Chan’s consent. They aver that Chan’s consent to search the room did not authorize the search of a closed backpack inside the room.

¶26This argument is foreclosed by Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). There, a police officer initiated a valid vehicle stop, then asked the driver for permission to search the car. After receiving consent, during the search the officer found a closed bag on the floor and opened it to reveal a kilogram of cocaine.

¶27In analyzing whether consent to search the car extended to closed containers in the car, the Court recognized that “the touchstone of the Fourteenth Amendment is reasonableness.” Id. at 250, 111 S.Ct. 1801. Noting that the officer had informed the defendant that he suspected drugs were in the car and that the defendant had put no “explicit limitation” on the scope of the search, the Court concluded that “if his consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization.” Id. at 252, 111 S.Ct. 1801.

¶28The Court specifically rejected the notion that an officer should be required to request permission before searching each individual container. Id.Interpreting Jimeno, we have noted that “the defendant, as the individual knowing the contents of the [searched area], has the responsibility to limit the scope of the consent.”11

¶29It is undisputed that Chan had watched the police examine the contents of Free*834man’s bag and that the officer asked Chan whether the bags in the room were his. A reasonable officer could certainly assume that consent to search the room included consent to search any unlocked bags in the room. A reasonable officer could also assume that Chan, having traveled in the railroad car from San Antonio to Fort Worth, would be aware of the contents of the car. Because Chan did not attempt to limit his consent, the officer was not constitutionally unreasonable by construing Chan’s consent to include the backpack.

¶30V.

¶31The defendants argue that Chan lacked authority to consent to a search of Freeman’s backpack. They point to United States v. Jaras, 86 F.3d 383 (5th Cir.1996), as establishing that the government must demonstrate that the officers “reasonably (though erroneously) believed that the person who has consented to their search had authority to do so.” Id.at 389 (citing Rodriguez, 497 U.S. at 186, 110 S.Ct. 2793 (internal quotations omitted)). Although the defendants cite the correct standard for apparent authority, the government made the necessary showing in this case.

¶32In Rodriguez, police searched an apartment after obtaining consent from the defendant’s girlfriend, who had no property interest in the apartment. The Court stated that the test was whether “the facts available to the officer at the moment [would] warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?” Id. at 188, 110 S.Ct. 2793 (ellipses and citations omitted). The Court remanded so that the lower court could determine whether the officers reasonably believed that the girlfriend had authority to consent.

¶33in 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.

¶34The present facts are distinguishable from those in Jaras. Morton could not have known that the backpack belonged to Freeman until after he had already opened it. He could also reasonably rely on Chan’s statement that all the bags in the room were his. Chan had just exited the sleeping car before making the statement and had traveled in the car from San Antonio to Fort Worth; it was reasonable to believe he would have been aware of any bags contained therein. Morton had also heard Freeman state to the other officers that he had no other luggage. A reasonable officer could believe that the bag belonged to Chan and that he had authority to consent to its search, and the district court was not clearly erroneous when it concluded as much.12

¶35AFFIRMED.