                                                      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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