United States v. Freeman

United States Court of Appeals
Fifth Circuit
F I L E D
March 27, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-11231
_______________
UNITED STATES OF AMERICA
Plaintiff-Appellee,
VERSUS
MACULLON FREEMAN,
ALSO KNOWN AS TED LEWIS BROWN,
Defendant-Appellant.
* * * * * * * * * * * * ** * * * * * * * * * * * * * *
_______________
m 05-11254
_______________
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
__________________________
Before HIGGINBOTHAM, SMITH, and
DEMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Macullon Freeman and Kenneth Chan were
convicted of possession with intent to distrib-
ute cocaine. They appeal the denial of a mo-
tion to suppress evidence found in a backpack
during a search of their shared sleeping car.
Because the consent was voluntary and a rea-
sonable officer would have believed that Chan
had authority to consent and that his consent
covered the backpack, we affirm.
I.
Four law enforcement agents approached
the defendants on a train platform in Fort
Worth because of defendants’ suspicious itin-
erary.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 oth-
er baggage; Freeman responded that he did
not.
Officer Morton then spoke with Chan,
whom he had seen talking to Freeman. Mor-
ton 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 re-
trieved the ticket. Morton asked Chan wheth-
er 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.
Morton entered the room to search; he later
testified that the only things immediately visi-
ble 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 Mor-
ton ask Chan whether the backpack was his or
for consent to look in the backpack.
At 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
1 The two defendants had made a last-minute,
one-way reservation of a sleeping car from San
Antonio to Washington, D.C., on Chan’s credit
card. Because reasonable suspicion is not neces-
sary for officers to approach individuals in public
areas, we express no opinion on whether the offi-
cers had reasonable suspicion to instigate a Terry
stop. See, e.g., Terry v. Ohio, 392 U.S. 1, 19 n.16
(1968); Florida v. Royer, 460 U.S. 491, 497-98
(1983) (plurality).

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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 reasonable-
ness” and finding that it was objectively rea-
sonable for Morton to believe Chan’s consent
included consent to search the backpack, be-
cause it was in plain sight.
II.
When 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 mat-
ter, the government must demonstrate that the
defendant did consent.2 If he consents, proba-
ble cause analysis is inapplicable, and the
search is measured against the general Fourth
Amendment requirement of reasonableness.3
Existence of consent is determined based on
the totality of the circumstances. See, e.g.,
Price, 54 F.3d at 345.
Once the government has demonstrated
consent, the next issue is whether it was vol-
untary.4 Voluntariness is to be determined
based on the totality of the circumstances, with
the burden of proof on the government.5
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 author-
ity 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
2 See United States v. Price, 54 F.3d 342, 346
(7th Cir. 1995) (examining whether a defendant
who responded “Sure” meant “Sure you can
search” or “Sure, I mind if you search”); United
States v. Barrington, 210 F. Supp. 2d 773, 778
(E.D. Va. 2002) (same).
3 See Illinois v. Rodriguez, 497 U.S. 177, 183
(1990) (“What [the defendant] is assured by the
Fourth Amendment itself, however, is not that no
government search of his house will occur unless
he consents; but that no such search will occur that
is ‘unreasonable.’”). Even where police have ob-
tained a search warrant, if the suspect consents
they need not execute the warrant. United States
v. Lee, 356 F.3d 831 (8th Cir. 2003).
4 See Schneckloth v. Bustamonte, 412 U.S. 218,
222 (analyzing voluntariness under a totality-of-
the-circumstances test).
5 Id.
6 See United States v. Ibarra, 965 F.2d 1354,
1356 n.2 (5th Cir. 1992) (en banc) (per curiam)
(affirming by equally-divided court) (“Government
has the burden of proving the search was conduct-
ed within the scope of the consent received.”).
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
183-89 (same).
8 See Florida v. Jimeno, 500 U.S. 248, 251
(1991) (“The standard for measuring the scope of
a suspect’s consent under the Fourth Amendment
is that of “objective” reasonablenessSSwhat would
the typical reasonable person have understood by
the exchange between the officer and the sus-
pect?”); Rodriguez, 497 U.S. at 186-88 (“Whether
the basis for such authority [to consent] exists is
the sort of recurring factual question to which law
enforcement officials must be expected to apply
their judgment, and all the Fourth Amendment re-
quires is that they answer it reasonably. . . .
Would the facts available to the officer at the mo-
(continued...)

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burden of proof remains on the government.
Because all four issues are factual, we re-
view 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).
III.
The defendants do not dispute that Chan
consented to a search of the sleeping car.
They do allege that his consent was not volun-
tary because Chan was not informed that he
could refuse consent, and the agents were
armed.
This circuit uses a six-factor test to deter-
mine voluntariness:
(1) the voluntariness of the defendant’s
custodial status; (2) the presence of coer-
cive 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 defen-
dant’s education and intelligence; and
(6) the defendant’s belief that no incrimin-
ating evidence will be found. All six factors
are relevant, but no single one is dispositive
or controlling.
United States v. Kelley, 981 F.2d 1464, 1470
(5th Cir. 1993) (citations omitted).
The district court made a finding of volun-
tariness after an oral hearing, so our review
under the clearly erroneous standard is partic-
ularly deferential. Id. Freeman and Chan have
not made the necessary showing.
At 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.
Chan was cooperative, which suggests vol-
untariness, 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 (1976).
The defendants presented no evidence that
Chan was unaware of his right to deny con-
sent, nor any evidence that he was mentally
deficient or unable to exercise his free will in
consenting. Finally, although incriminating ev-
idence was found, Chan argued at trial that he
was unaware of the cocaine, an argument that
8(...continued)
ment warrant a man of reasonable caution in the
belief that the consenting party had authority over
the premises?”).
9 Price, 54 F.3d at 345. See also United States
v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993)
(“Where the judge bases a finding of consent on the
oral testimony at a suppression hearing, the clearly
erroneous standard is particularly strong since the
judge had the opportunity to observe the demeanor
of the witnesses.”).
10 See Royer, 460 U.S. at 497-98 (“[L]aw en-
forcement officers do not violate the Fourth
Amendment by merely approaching an individual
on the street or in another public place, by asking
him if he is willing to answer some questions, by
putting questions to him if the person is willing to
listen, or by offering in evidence in a criminal pro-
secution his voluntary answers to such questions.
Nor would the fact that the officer identifies him-
self as a police officer, without more, convert the
encounter into a seizure requiring some level of ob-
jective justification.”) (plurality) (citations
omitted).

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suggests the voluntariness of consent.
IV.
Defendants argue that the district court
committed clear error in holding, after revers-
ing 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 back-
pack inside the room.
This argument is foreclosed by Florida v.
Jimeno, 500 U.S. 248 (1991). There, a police
officer initiated a valid vehicle stop, then asked
the driver for permission to search the car. Af-
ter receiving consent, during the search the of-
ficer found a closed bag on the floor and
opened it to reveal a kilogram of cocaine.
In 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. Noting that the officer had in-
formed 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 con-
sent would reasonably be understood to ex-
tend to a particular container, the Fourth
Amendment provides no grounds for requiring
a more explicit authorization.” Id. at 252.
The 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
It is undisputed that Chan had watched the
police examine the contents of Freeman’s bag
and that the officer asked Chan whether the
bags in the room were his. A reasonable offi-
cer 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 constitu-
tionally unreasonable by construing Chan’s
consent to include the backpack.
V.
The defendants argue that Chan lacked au-
thority to consent to a search of Freeman’s
backpack. They point to United States v. Jar-
as, 86 F.3d 383 (5th Cir. 1996), as establishing
that the government must demonstrate that the
officers “reasonably (though erroneously) be-
lieved that the person who has consented to
their search had authority to do so.” Id. at 389
(citing Rodriguez, 497 U.S. at 186 (internal
quotations omitted)). Although the defendants
cite the correct standard for apparent author-
ity, the government made the necessary show-
ing in this case.
In 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 reason-
able caution in the belief that the consenting
11 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
188 (ellipses and citations omitted). The
Court remanded so that the lower court could
determine whether the officers reasonably be-
lieved 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 obtain-
ing 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 ap-
parent 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
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
AFFIRMED.
12 Alternatively, Chan may have had actual au-
thority over the backpack, based on his co-occu-
pancy of the sleeping car. Where two individuals
are co-tenants or co-occupants, they assume the
risk that the co-user may consent to a search.
United States v. Richard, 994 F.2d 244, 250 (5th
Cir. 1993). “Unless the complaining co-tenant has
somehow limited the other’s access to a piece of
property, the consenting co-tenant’s authority ex-
tends to all items on the premises.” Id. In Ri-
chard, this court found that the defendant’s girl-
friend had authority to consent to a search of their
hotel room, in which a number of suitcases belong-
ing to the defendant were seized. Similarly, Chan
had access to the entire sleeping car and had au-
thority to consent to a search of the car, including
any items on the premises, such as the backpack.

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