United States v. Jackson

United States Court of Appeals
Fifth Circuit
F I L E D
November 8, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-30205
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSEPH LEE JACKSON,
Defendant-Appellant,
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
Before SMITH and GARZA, Circuit Judges,
and VANCE,* District Judge.
JERRY E. SMITH, Circuit Judge:
Arrested after being found in a Greyhound
bus station with cocaine strapped to his waist,
Joseph Jackson was charged with possession
of cocaine with intent to distribute. After his
motion to suppress was denied, he entered a
conditional guilty plea. He now appeals the
denial of the motion to suppress. Concluding
that Jackson’s Fourth Amendment rights were
not violated, we affirm.
I.
In the morning hours of May 23, 2003, a
bus traveling from Dallas, Texas, pulled into
the Greyhound bus station in Shreveport,
Louisiana, for a stop scheduled to last approx-
imately thirty minutes. Two plain clothes of- * District Judge of the Eastern District of
Louisiana, sitting by designation.

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2
ficers, Sergeant Kevin Dunn and Deputy James
McLamb, with their weapons concealed,
approached the driver as the bus doors opened
and asked permission to search the vehicle for
illegal narcotics. The driver agreed.
Dunn boarded the bus and announced over
the intercom that he was a narcotics officer
and that he would be bringing a drug-sniffing
dog onto the bus to search for drugs. Stand-
ing near the driver’s seat, and out of the way
of the aisle, Dunn advised the passengers that
they could either remain on the bus during the
search or depart before the dog was brought
aboard. The passengers were further advised
that they could either leave their carry-on bags
on the bus or take them as they departed. In
the event any passengers were unable to exit
the bus on their own, they were advised that if
they did not choose to remain on the bus they
could receive assistance in exiting. All the
passengers chose to disembark.
As the passengers exited, Dunn noticed one
passenger, Jackson, acting in a manner Dunn
regarded as nervous: He was standing “ex-
ceptionally straight”; “his eyes were very wide
open”; his posture was “unusually straight”;
and he stepped quickly off the bus, avoiding
eye contact and not responding when Dunn
said “Good morning.” Once the passengers
had exited, McLamb boarded with the dog and
searched the passenger compartment. The dog
alerted on an empty seat and two bags stowed
above the seat,1 so McLamb suspected that
someone was “body-carrying” drugs. The
search now complete, McLamb communicated
to Dunn his suspicion that a passenger might
be carrying drugs; McLamb placed the dog
back in the police vehicle.
Dunn entered the station and noticed Jack-
son in the restaurant area.2 Jackson looked
nervous, was sweating heavily, and appeared
to be having difficulty breathing, all the while
sitting in what Dunn regarded as an unusually
erect position. Dunn approached Jackson and
asked whether he could speak with him; Jack-
son agreed but appeared so nervous that Dunn
asked whether he would prefer to talk in a
more private place. Jackson answered af-
firmatively, so Dunn led him to a nearby bag-
gage claim area. There, Dunn asked Jackson
whether he was carrying any weapons; Jack-
son answered that he was not.
Dunn then undertook a pat-down search
during which he felt an unknown object
around Jackson’s waist. Jackson was then
handcuffed by Dunn and McLamb. Dunn
asked Jackson to identify the object. Jackson
was at first unable to provide any explanation
but on further questioning told the officers it
was a “back brace.” When McLamb raised
Jackson’s shirt to investigate, the officers ob-
served powder cocaine in plastic bags taped to
his waist. Jackson was formally arrested and
advised of his rights.
Charged with possession of cocaine with
intent to distribute, Jackson moved the district
court to suppress the cocaine as evidence;
adopting the recommendation of the magis-
trate judge, the district court denied the mo-
1 At the suppression hearing, neither officer
could recall what steps had been taken to identify
the owners of the two bags, but the briefs reveal
that Jackson claimed one bag, and the other was
never claimed. No evidence or contraband was
found in either piece of luggage.
2 When Dunn approached Jackson in the bus
station, he did not know whether the seat or the
bags to which the dog alerted belonged to Jackson.

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3
tion. Jackson entered a conditional plea of
guilty, reserving his right to appeal the denial.
II.
We use a two-tiered standard of review for
appeals from the denial of a motion to sup-
press: Factual findings are accepted unless
clearly erroneous, and the district court’s ulti-
mate conclusion as to the constitutionality of
law enforcement action is reviewed de novo.
See United States v. Orozco, 191 F.3d 578,
581 (5th Cir. 1999) (citing Ornelas v. United
States, 517 U.S. 690, 699 (1996)). We view
all the evidence introduced at the suppression
hearing in the light most favorable to the pre-
vailing party, in this case the government. Id.
(citing United States v. Ponce, 8 F.3d 989,
995 (5th Cir. 1993)).
III.
Jackson’s primary argument is that he was
subjected to an unconstitutional seizure when
two officers boarded the bus, with the driver’s
consent, after it pulled into the station for a
scheduled layover and instructed bus passen-
gers that they could remain on the bus during
a canine search or disembark (with or without
their carry-on luggage) until the search was
completed.3 We disagree. Nothing about the
officers’ conduct impaired Jackson’s right
(which he exercised) to leave the bus and ter-
minate the encounter with police.
A.
“[N]ot all personal intercourse between po-
licemen and citizens involves ‘seizures’ of per-
sons.” Terry v. Ohio, 392 U.S. 1, 19 n.16
(1968). If every encounter between a citizen
and a police officer constituted a seizure, it
“would impose wholly unrealistic restrictions
upon a wide variety of legitimate law enforce-
ment practices.” United States v. Mendenhall,
446 U.S. 544, 554 (1980). Thus, “[o]nly
when the officer, by means of physical force or
show of authority, has in some way restrained
the liberty of a citizen may we conclude that a
‘seizure’ has occurred.” Terry, 392 U.S. at 19
n.16.
Law enforcement officers do not violate the
Fourth Amendment’s proscription of unrea-
sonable seizures “by merely approaching an in-
dividual on the street or in another public
place, by asking him if he is willing to answer
some questions,” or “by putting questions to
him if the person is willing to listen.” Florida
v. Royer, 460 U.S. 491, 497 (1983) (plurality
opinion); Florida v. Rodriguez, 469 U.S. 1,
5-6 (1984) (per curiam). Even without having
an objective level of suspicion, officers may in-
itiate contact with a person and ask for iden-
tification and request permission to search
baggage, provided they do not induce
cooperation by coercive means.4 Whether a
person has been seized in these circumstances
is a question of voluntariness: “If a reasonable
person would feel free to terminate the en-
counter, then he or she has not been seized.” 3 Jackson was thus forced to ask himself what
The Clash famously asked two decades ago:
“Should I stay or should I go now?” Doubtless
Jackson knew that if he stayed on the bus and the
dog alerted to him “there would be trouble.” But
given the officers’ ultimate discovery of the cocaine
strapped to his waist, the trouble turned out to be
“double,” notwithstanding his decision to “go.”
See The Clash, Combat Rock (1982).
4 See Florida v. Bostick, 501 U.S. 429, 434-35
(1991); see also United States v. Drayton, 536
U.S. 194, 200-01 (2002) (“The Fourth Amendment
permits police officers to approach bus passengers
at random to ask questions and to request their con-
sent to searched, provided that a reasonable person
would understand that he or she is free to refuse.”).

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4
Drayton, 536 U.S. at 201.
The police practice at issue in this case is
different from that in Bostick and Dray-
ton—i.e., approaching bus passengers random-
ly to ask questions and to request their consent
to searches. Here, the officers did not do that,
nor did they ask consent to be searched.
Instead, they merely informed the passengers
that they would be conducting a canine search
of the bus and that the passengers were free to
disembark until the search was complete. For
purposes of the Fourth Amendment, however,
the relevant inquiry remains the same: whether
the police conduct at issue, in light of all the
circumstances, would have led a reasonable
person to believe that he was barred from
leaving the bus or otherwise terminating the
encounter. See Drayton, 536 U.S. at 204.
B.
The police did not seize Jackson—or the
rest of the passengers to whom such a holding
would theoretically be applicable—when they
boarded the bus and gave passengers the
choice of remaining there while they led a ca-
nine down the aisle or disembarking until the
search was complete. The officers gave the
passengers no reason to believe they were re-
quired to stay on the bus during the canine
search. To the contrary, the officers explicitly
informed passengers of the option to disem-
bark the bus with or without their carry-on
items, and left the aisle free for passengers to
exit. In light of the fact that every passenger
(Jackson included) exercised this option, it
cannot be said that the offer of the option to
leave, and thus terminate the police encounter,
was understood as anything but genuine.
Moreover, as in Drayton, “[t]here was no
application of force, no intimidating move-
ment, no overwhelming show of force, no
brandishing of weapons, no blocking of exits,
no threat, no command, not even an authorita-
tive tone of voice.” Id. In sum, nothing the
officers did or said “would suggest to a rea-
sonable person that he or she was barred from
leaving the bus or otherwise terminating the
encounter.” Drayton, 536 U.S. at 204.
Indeed, Jackson never asserts that police
conduct prevented him from leaving the bus
and thus terminating the encounter with police.
Instead, Jackson insists that this case is
different because he had to disembark the bus
to avoid an encounter at close proximity with
a narcotics canine, and that this itself should
constitute a seizure within the meaning of the
Fourth Amendment.
But in advancing this argument, Jackson
confuses a reasonable person’s belief that he
was not free to terminate the encounter with
police (which is the touchstone for Fourth
Amendment purposes) with his desire to leave
the bus (which has little, if any, relevance for
Fourth Amendment purposes). Whether
Jackson desired to leave the bus, or whether
he regarded it as inconvenient, says nothing
about whether the police conduct was coer-
cive. See Bostick, 501 U.S. at 435-37. And
the fact that disembarking was the only means
of terminating the encounter only serves to
underscore the dispositive nature of the coer-
cion inquiry—whether, taking into account all
the circumstances surrounding the encounter,
disembarking was an option that a reasonable
person would have regarded as being available,
or whether a passenger would have felt
compelled to remain onboard and be subjected
to the canine search.
To be sure, if the officers had acted in a
manner that conveyed to a reasonable person
that they were compelled to remain onboard

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and face the dog search, this would be a dif-
ferent case. Here, however, the police acted in
a professional and polite manner, instructing
the passengers of their right to disembark the
bus before the canine search. That Jackson
may not have desired to disembark is not con-
trolling; that the police did not coerce passen-
gers into remaining onboard is. Thus, absent
coercive police conduct leading a passenger to
believe he was required to remain onboard, the
minor inconvenience, if any, suffered by
Jackson in disembarking must yield to what
has been referred to as the “compelling interest
in detecting those who would traffic in deadly
drugs for personal profit.” Mendenhall, 446
U.S. at 561-62 (Powell, J., concurring).
IV.
We now turn from the question whether
Jackson was seized to whether he was sub-
jected to an unreasonable search. That inquiry
asks whether the pat-down search in the bus
station, a so-called Terry frisk, was permissi-
ble.
A.
The magistrate judge found that Jackson
consented to Dunn’s initial request to speak
with him, as well as his subsequent invitation,
made after observing Jackson’s nervous be-
havior, to speak in the more private baggage
area. Thus, the encounter between Dunn and
Jackson in the bus station was not an investi-
gatory detention under Terry, but was instead
a consensual encounter.5 It was only when
Dunn conducted a pat-down search of Jackson
in the baggage area, however, that the nature
of the encounter began to take the character of
a Terry stop.6
In evaluating the legality of a Terry stop,
this court must consider (1) whether the offi-
cer’s action was justified at its inception and
(2) whether it was reasonably related in scope
to the circumstances that justified the interfer-
ence in the first place. Williams, 365 F.3d at
405 (citing Terry, 392 U.S. at 19-20). As we
have said, at its inception, Dunn’s encounter
with Jackson was justified because it was con-
sensual. Indeed, even absent Jackson’s con-
sent, the fact that Dunn was aware of the dog
alert and that one of the passengers was likely
carrying drugs on his person, coupled with
Jackson’s nervous and erratic behavior (in-
cluding what Dunn regarded as his unusually
erect posture), would be sufficient to premise
a reasonable and particularized suspicion that
Jackson was the drug courier. At that point,
even though probable cause to arrest was lack-
ing the officers were within their constitutional
authority to pat him down for their personal
safety, given what they regarded as the real
threat that a narcotics carrier may be armed.
United States v. Jordan, 232 F.3d 447, 449
5 See United States v. Williams, 365 F.3d 399,
405 (5th Cir. 2004) (holding, as to the same bus
station, that bus passengers “voluntary entry into
[the] baggage handling area for purposes of an-
swering questions does not amount to a seizure, nor
does it convert the consensual encounter into a
(continued...)
5(...continued)
Terry stop”).
6 Jackson contends that the patdown was non-
consensual; the government disagrees. Because the
magistrate judge did not make a finding regarding
whether the patdown was consensual, and because
“[w]e do not sit to resolve conflicts in descriptions
of events,” United States v. Boone, 67 F.3d 76, 78
(5th Cir. 1995), we assume arguendo that the pat-
down was nonconsensual.

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6
(5th Cir. 2000).7 In fact, the officers testified
that in their experience, it was not unlikely that
a drug courier might be armed and dangerous,
and that they conducted the pat-down search
to further their own safety.
As a final matter, with respect to the offic-
ers’ actions in lifting Jackson’s shirt after feel-
ing objects at his waist, the magistrate judge
found no problem, citing the plain-feel doc-
trine announced in Minnesota v. Dickerson,
508 U.S. 366 (1993). We need not rely on
that doctrine to affirm, however, because “the
raising of a suspect’s shirt by a law enforce-
ment officer does not violate the bounds es-
tablished by Terry.” Reyes, 349 F.3d at 225
(citing United States v. Hill, 545 F.2d 1191,
1193 (9th Cir. 1976)). Thus, the officers were
within their constitutional authority when they
raised Jackson’s shirt, an act that in turn led to
the discovery of the cocaine and Jackson’s
arrest.
Because Jackson was not seized on the bus,
and the pat-down search was permissible, the
order denying the motion to suppress is
AFFIRMED.
7 Although Justice Harlan was not certain, when
Terry was decided, that suspected narcotics
possession was the type of crime “whose nature
creates a substantial likelihood that [the suspected
offender] is armed,” Sibron v. New York, 392 U.S.
40, 74 (1968) (Harlan, J., concurring), courts have
achieved such certainty through time. See, e.g.,
United States v. Vasquez, 634 F.2d 41, 43 (2d Cir.
1980) (officers justified in making protective frisk,
“particularly in view of violent nature of narcotics
crime”); United States v. Oates, 560 F.2d 45, 62
(2d Cir. 1977) (observing that firearms are the
“tools of the trade” of narcotics dealers); United
States v. Trullo, 809 F.2d 108, 113 (1st Cir. 1987)
(frisk for weapons may accompany seizure of drug
trafficking suspect); see also United States v.
Reyes, 349 F.3d 219, 225 (5th Cir. 2003) (finding
no error in pat-down of suspected drug courier in
bus station based on officer’s testimony that in his
experience “weapons accompany narcotics”).

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