UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 96-30299
(Summary Calendar)
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TROY THOMAS,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
(95-CR-286-K)
February 17, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Undercover officers working at the New Orleans International
Airport searched a bag belonging to defendant Troy Thomas and
discovered counterfeit credit cards and identification as well as
a computer printout containing fraudulently obtained names, account
numbers, and expiration dates for credit cards belonging to forty-
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
four different individuals. Thomas moved to suppress. After the
court denied the motion, Thomas pled guilty to possession of
counterfeit access devices with intent to defraud in violation of
18 U.S.C. §§ 1029(a)(3), 1029(b)(1), and 2, but reserved the right
to appeal the denial of his motion to suppress. Thomas now
appeals. We affirm.
I
Dressed in plain clothes, Jefferson Parish Sheriff’s
Lieutenant Glenn Davis and Drug Enforcement Agency (“DEA”) Special
Agent Don Penny were conducting routine surveillance of passengers
arriving on a 10:00 p.m. flight from Houston. They followed one
passenger out of the gate area and down the concourse. Glancing
back, Davis noticed that another passenger, Thomas, was walking
behind the officers and staring at them intently.2 Thomas was
carrying a small bag and appeared very nervous.
The first suspect, the officers, and Thomas proceeded to the
baggage claim area. Thomas immediately exited the terminal and
approached the taxi line. Davis followed Thomas, leaving Penny to
watch the first suspect. Flashing cash, Thomas approached the
fourth cab in line and said that he “needed to leave the airport.”
The driver told Thomas to go to the first cab in line. Thomas then
importuned the driver of the third cab, and received the same
2
Although Davis did not realize it at the time, he had previously
questioned Thomas and seized a false driver’s license. Thomas was also the
subject of fugitive warrants in both New Orleans and Las Vegas.
-2-
answer. Davis flagged Penny and the officers accosted Thomas as he
neared the first cab. Penny showed his credentials, told Thomas
that he was a DEA agent, and asked to speak to him for a minute.
Davis also identified himself as a law enforcement officer. Thomas
responded with a curse, but said “okay.”
The trio was standing on a median between the cab lane and the
general traffic lanes, a congested and noisy area. Davis asked
Thomas if they could “step inside the building” to talk. Thomas
said “no problem,” and accompanied the officers through a nearby
door into the airport baggage area. The baggage area is twenty-
five to fifty feet from the cab stand, and open to the public.
Thomas told the officers that he had just flown in from Texas
but had lost his plane ticket and had no identification with him.
Thomas gave the officers what turned out to be a false name, but
said that he had not flown under that name; he claimed that his
ticket was listed in his girlfriend’s name because she had made his
reservation. Thomas then told the officers that he could not
remember the name on the ticket. Davis asked Thomas how he planned
to leave the airport. Thomas replied that he had arranged for his
sister to pick him up at 10:30 p.m., but that he had decided to
take a cab because she was late and he did not want to wait. It
was only 10:25 p.m. when Thomas made this statement. Thomas’ hands
trembled and he breathed heavily. When Davis mentioned that the
officers were “drug agents,” Thomas “seemed to kind of chill out”
and he “calmed down” and readily consented to let the officers
-3-
search his bags for narcotics. The officers did not ask Thomas to
sign a written consent form. Penny found the fraudulent credit
cards and identification cards hidden under the innersole of a
tennis shoe. The officers arrested Thomas. A later search of
Thomas’ wallet revealed, among other things, a computer printout
with fraudulently obtained names, account numbers, and expiration
dates for credit cards belonging to forty-four different people.
At the suppression hearing, Thomas did not testify or present
any evidence. The district court found that the officers’ initial
curbside encounter with Thomas was “mere communication.” Referring
to Thomas’ behavior and responses both before and after the
officers asked him to return to the terminal, the district court
ruled that Thomas’ actions “constituted articulable facts that
would reasonably warrant further inquiry.” The district court
noted that the request to return to the terminal building could
arguably be construed to be a Terry stop (that is, a brief seizure
supported by reasonable suspicion), but it did not specifically
decide this question. Finally, the court ruled that the evidence
showed that Thomas voluntarily consented to the search of his bag.
II
Thomas claims that the district court erred when it denied his
motion to suppress evidence seized from his bag at the airport and
from his wallet. In reviewing an order denying a motion to
suppress, we review the district court’s conclusions of law de novo
-4-
and its factual findings for clear error. United States v. Rivas,
99 F.3d 170, 174 (5th Cir. 1996). The court views the evidence in
the light most favorable to the prevailing party, here the
government. United States v. Ishmael, 48 F.3d 850, 853 (5th Cir.),
cert. denied, __ U.S. __, 116 S. Ct. 74, 133 L. Ed. 2d 34 (1995).
III
Thomas argues that the court should have suppressed the
evidence taken from his bag and wallet because the officers
“seized” him without reasonable suspicion when they asked him to
reenter the terminal.
There are three kinds of police-citizen encounters: “[(1)]
communication between police and citizens involving no coercion or
detention and therefore without the compass of the Fourth
Amendment, [(2)] brief ‘seizures’ that must be supported by
reasonable suspicion, and [(3)] full-scale arrests that must be
supported by probable cause.” United States v. Berry, 670 F.2d
583, 591 (5th Cir. 1982) (en banc). The first kind of encounter
occurs, for instance, if law enforcement officers approach a
traveler at an airport or bus station and ask to see his ticket and
identification. See United States v. Cooper, 43 F.3d 140, 146 (5th
Cir. 1995) (bus station); United States v. Galberth, 846 F.2d 983,
989 (5th Cir.) (airport), cert. denied, 488 U.S. 865, 109 S. Ct.
167, 102 L. Ed. 2d 137 (1988). A seizure occurs only if “in view
of all the circumstances surrounding the incident, a reasonable
-5-
person would not have believed that he was free to leave.” Berry,
670 F.2d at 595 (citation and internal quotation marks omitted);
see also Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382,
2388, 115 L. Ed. 2d 389 (1983) (holding that police practice of
approaching passengers on buses to ask questions and request
consent to search could amount to seizure if a reasonable person
would not have felt free to decline the officers’ inquiries and
terminate the encounter).
We find that the officers’ request that Thomas reenter the
terminal did not involve coercion or detention, and thus determine
that it was not a “seizure.” Nothing in the record indicates that
Thomas, after being approached by the officers, believed he was not
free to leave. The officers did not take Thomas’ ticket,
identification, or luggage; moreover, their encounter with him both
inside and outside the terminal occurred in a public part of the
airport and lasted for only a short time. See Florida v. Royer,
460 U.S. 491, 496, 103 S. Ct. 1319, 1323, 75 L. Ed. 2d 229 (1983)
(suggesting that defendant at airport reasonably believed he was
not free to leave because officers had taken defendant’s ticket,
identification, and luggage, and they had requested him to
accompany them to small police interrogation room); Schneckloth v.
Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d
854 (1973) (referring to length of detention and repeated
questioning as factors possibly suggesting coercion); United States
-6-
v. Simmons, 918 F.2d 476, 479-80 (5th Cir. 1990) (holding that a
reasonable person in the defendant’s situation would not have
believed that his freedom was limited when agents approached him,
identified themselves as law enforcement officers, and requested to
speak to him). The officers did not suggest that failure to
cooperate would lead to formal detention. Berry, 670 F.2d at 597.
Nor did they display a gun, use threatening language or an
intimidating tone of voice, touch Thomas, or otherwise attempt to
restrain him. United States v. Mendenhall, 446 U.S. 544, 554-55,
100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980). Lastly, the
officers’ request that Thomas step inside the terminal so they
could speak to him there was perfectly understandable given the
noise and congestion around the traffic median. It did not block
him from proceeding or prevent his progress. Berry, 670 F.2d at
598.
In short, the officers’ request contained no element of
coercion or detention. See Simmons, 918 F.2d at 480 (noting that
defendant’s feeling that he was constrained to remain in officers’
presence is irrelevant, as long as the record indicates no element
of coercion or detention). Under the circumstances, then, Thomas
should have reasonably believed that the request did not preclude
him from leaving. Thus, the request was not a seizure. Cf.
United States v. Boone, 67 F.3d 76, 79 (5th Cir. 1995) (holding
that, where law enforcement officers ordered all passengers off bus
-7-
and then singled out defendant passenger in public area of
terminal, officers’ request to defendant to answer a few questions
was not seizure), cert. denied, __ U.S. __, 116 S. Ct. 965, 133 L.
Ed. 2d 886 (1996).
IV
Next, Thomas claims that he did not consent to the search of
his bag and maintains that the district court erred in determining
otherwise.
Whether Thomas agreed to permit the officers to search his bag
is a factual issue. However, Thomas did not testify at the
suppression hearing or present any evidence opposing the officers’
testimony that he assented to the search. Moreover, there is
nothing in the record that suggests that Thomas did not agree to
the search. Thus, we determine that the district court did not
clearly err in finding that Thomas consented to the officers’
examination of his bag.
V
Lastly, Thomas argues that, even if he did consent to the
search, the district court erred by finding that the consent was
voluntary. Thomas claims that the allegedly illegal seizure
tainted his consent, rendering it involuntary.
We focus on six factors in determining whether consent to a
search was voluntary:
(1) the voluntariness of the defendant’s custodial
status; (2) the presence of coercive police procedures;
-8-
(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.
United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir.), cert.
denied, 508 U.S. 944, 113 S. Ct. 2427, 124 L. Ed. 2d 647 (1993).
None of the six factors is dispositive. Id. Specifically, proof
that the defendant knew of his right to refuse consent))while
relevant))is not required to show voluntariness. Ponce, 9 F.3d at
997.
As discussed above, Thomas was not in custody when he
consented to the search, and there is no evidence that the police
used coercive procedures. Thomas claims that he completed high
school, and the record indicates that he has extensive prior
experience with the criminal justice system. Moreover, because the
officers told Thomas that they wanted to search his bag for
narcotics, he may not have expected that they would discover the
counterfeit credit cards or that they would immediately realize
that the cards were contraband. See United States v. Ho, 94 F.3d
932, 937-38 & n.10 (5th Cir. 1996) (noting that the average
narcotics officer might not recognize the “immediate criminal
significance” of a counterfeit credit card). We determine that the
district court did not clearly err in concluding that Thomas
voluntarily agreed to allow the officers to search his bag.
AFFIRMED.
-9-